Virginia Law

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meaning given them in subsection C of this section.

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

C. Terms defined.

"Administrator" means the Administrator of the United States Environmental Protection Agency or his authorized representative.

"Affected source" means the collection of equipment, activities, or both within a single contiguous area and under common control that is in a source category or subcategory under § 112(c) of the federal Clean Air Act for which the administrator has failed to promulgate a MACT standard by the § 112(j) deadline, and that is addressed by an applicable MACT emission limitation established pursuant to this article.

"Affected states" means all states (i) whose air quality may be affected and that are contiguous to the Commonwealth of Virginia, and (ii) whose air quality may be affected and that are within 50 miles of the major source for which a MACT determination is made in accordance with 40 CFR Part 63.

"Alternative emission limitation" means conditions established pursuant to § 112(i)(5) or § 112(i)(6) of the federal Clean Air Act by the administrator or the board.

"Alternative emission standard" means an alternative means of emission limitation that, after notice and opportunity for public comment, has been demonstrated by an owner to the administrator's satisfaction to achieve a reduction in emissions of any air pollutant at least equivalent to the reduction in emissions of such pollutant achieved under a relevant design, equipment, work practice, or operational emission standard, or combination thereof, established under 40 CFR Part 63 pursuant to § 112(h) of the federal Clean Air Act.

"Area source" means any stationary source of hazardous air pollutants that is not a major source.

"Available information" means, for purposes of conducting a MACT floor finding and identifying control technology options for affected sources subject to the provisions of this article, any information that is available as of the date on which the first Part 2 MACT application is filed for a source in the relevant source category or subcategory, and, pursuant to the requirements of this article, is additional relevant information that can be expeditiously provided by the board or administrator, is submitted by the applicant or others prior to or during the public comment period on the equivalent emission limitation for that source under § 112(j) of the federal Clean Air Act, or information contained in the following information sources:

1. A relevant proposed regulation, including all supporting information.

2. Relevant background information documents for a draft or proposed regulation.

3. Any relevant regulation, information, or guidance collected by the board or administrator establishing a MACT floor finding or a case-by-case MACT determination.

4. Relevant data and information available from the Clean Air Control Technology Center developed pursuant to § 112(l)(3) of the federal Clean Air Act.

5. Relevant data and information contained in the Aerometric Informational Retrieval System (AIRS).

6. Any additional information that can be expeditiously provided by the board or administrator.

7. Any information provided by applicants in an application for a federal operating permit, permit modification, administrative amendment, or hazardous air pollutant new source review permit pursuant to the requirements of this article.

8. Any additional relevant information provided by the applicant.

"Case-by-case MACT determination" means a determination by the board, pursuant to the requirements of this article, which establishes a MACT emission limitation, MACT work practice standard, or other MACT requirements for an affected source subject to this article.

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

"Construction" means the on-site fabrication, erection, or installation of an affected source. Construction does not include the removal of all equipment comprising an affected source from an existing location and reinstallation of such equipment at a new location. The owner of an existing source that is relocated may elect not to reinstall minor ancillary equipment including, but not limited to, piping, ductwork, and valves. However, removal and reinstallation of an affected source will be construed as reconstruction if it satisfies the criteria for reconstruction as defined in this section. The costs of replacing minor ancillary equipment must be considered in determining whether the existing affected source is reconstructed.

"Control technology" means measures, processes, methods, systems, or techniques to limit the emission of hazardous air pollutants including, but not limited to, measures which:

1. Reduce the quantity, or eliminate emissions, of such pollutants through process changes, substitution of materials or other modifications;

2. Enclose systems or processes to eliminate emissions;

3. Collect, capture, or treat such pollutants when released from a process, stack, storage or fugitive emissions point;

4. Are design, equipment, work practice, or operational standards (including requirements for operator training or certification) as provided in 42 USC 7412(h); or

5. Are a combination of subdivisions 1 through 4 of this definition.

"Effective date" means:

1. With regard to an emission standard established under 40 CFR Part 63, the date of promulgation in the Federal Register of such standard; or

2. With regard to an alternative emission limitation or equivalent emission limitation determined by the administrator or board, the date that the alternative emission limitation or equivalent emission limitation becomes effective according to the provisions of 40 CFR Part 63.

"Emission point" means any part or activity of a major source that emits or has the potential to emit, under current operational design, any hazardous air pollutant.

"Emission standard" means a national standard, limitation, prohibition, or other regulation promulgated in a subpart of 40 CFR Part 63 pursuant to § 112(d), § 112(f), or § 112(h) of the federal Clean Air Act and incorporated by reference in 9VAC5 Chapter 60 (9VAC5-60).

"Enhanced review" means a review process containing all administrative steps needed to ensure that the terms and conditions resulting from the review process can be incorporated using federal operating permit program procedures.

"EPA" means the United States Environmental Protection Agency.

"Equivalent emission limitation" means an emission limitation, established under this article, which is equivalent to the emission standard that EPA would have promulgated under § 112(d) or § 112(h) of the federal Clean Air Act.

"Existing source" means any affected source that is not a new source.

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

"Federal operating permit program" means the operating permit system established pursuant to Title V of the federal Clean Air Act and regulations codified in Article 1 (9VAC5-80-50 et seq.), Article 2 (9VAC5-80-310 et seq.), Article 3 (9VAC5-80-360 et seq.), and Article 4 (9VAC5-80-710 et seq.) of Part II of 9VAC5 Chapter 80.

"Federally enforceable" means all limitations and conditions that are enforceable by the administrator and citizens under the federal Clean Air Act or that are enforceable under other statutes administered by the administrator. Federally enforceable limitations and conditions include, but are not limited to the following:

1. Emission standards, alternative emission standards, alternative emission limitations, and equivalent emission limitations established pursuant to § 112 of the federal Clean Air Act as amended in 1990.

2. New source performance standards established pursuant to § 111 of the federal Clean Air Act, and emission standards established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.

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

4. Limitations and conditions that are part of an approved implementation plan.

5. Limitations and conditions that are part of a federal construction permit issued under 40 CFR 52.21 or a new source review program permit issued under regulations approved by the EPA into the implementation plan.

6. Limitations and conditions that are part of a state operating permit where the permit and the permitting program pursuant to which it was issued meet all of the following criteria:

a. The operating permit program has been submitted to and approved by EPA into a state implementation plan (SIP) under § 110 of the federal Clean Air Act;

b. The SIP imposes a legal obligation that operating permit holders adhere to the terms and limitations of such permits and provides that permits that do not conform to the operating permit program requirements and the requirements of EPA's underlying regulations may be deemed not "federally enforceable" by EPA;

c. The operating permit program requires that all emission limitations, controls, and other requirements imposed by such permits will be at least as stringent as any other applicable limitations and requirements contained in the SIP or enforceable under the SIP, and that the program may not issue permits that waive, or make less stringent, any limitations or requirements contained in or issued pursuant to the SIP, or that are otherwise "federally enforceable";

d. The limitations, controls, and requirements in the permit in question are permanent, quantifiable, and otherwise enforceable as a practical matter; and

e. The permit in question was issued only after adequate and timely notice and opportunity for comment for EPA and the public.

7. Limitations and conditions in a Virginia regulation or program that has been approved by the EPA under subpart E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112 of the federal Clean Air Act.

8. Individual consent agreements that the EPA has legal authority to create.

"Fugitive emissions" means those emissions from a stationary source that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening. Under § 112 of the Clean Air Act, all fugitive emissions are to be considered in determining whether a stationary source is a major source.

"Hazardous air pollutant" means any air pollutant listed in § 112(b) of the federal Clean Air Act, as amended by 40 CFR 63.60.

"Hazardous air pollutant new source review permit" means a document issued pursuant to Article 7 (9VAC5-80-1400 et seq.) of Part II of 9VAC5 Chapter 80 containing all federally enforceable conditions necessary to enforce the application and operation of any maximum achievable control technology or other control technologies such that the MACT emission limitation is met.

"Hazardous air pollutant new source review program" means a program for the preconstruction review and permitting of new stationary sources that emit hazardous air pollutants in accordance with Article 7 (9VAC5-80-1400 et seq.) of Part II of 9VAC5 Chapter 80, promulgated to implement the requirements of § 112 (relating to permits for hazardous air pollutants) of the federal Clean Air Act.

"Major source" means any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants, unless the board establishes a lesser quantity, or in the case of radionuclides, different criteria from those specified in this sentence.

"Maximum achievable control technology (MACT) emission limitation for existing sources" means the emission limitation reflecting the maximum degree of reduction in emissions of hazardous air pollutants (including a prohibition on such emissions, where achievable) that the board, taking into consideration the cost of achieving such emission reductions, and any nonair quality health and environmental impacts and energy requirements, determines is achievable by sources in the category or subcategory to which such a MACT standard applies. This limitation shall not be less stringent than the MACT floor.

"Maximum achievable control technology (MACT) emission limitation for new sources" means the emission limitation which is not less stringent than the emission limitation achieved in practice by the best controlled similar source, and which reflects the maximum degree of reduction in emissions of hazardous air pollutants (including a prohibition on such emissions, where achievable) that the board, taking into consideration the cost of achieving such emission reduction, and any nonair quality health and environmental impacts and energy requirements, determines is achievable by sources in the category or subcategory to which such a MACT standard applies.

"Maximum achievable control technology (MACT) floor" means:

1. For existing sources:

a. The average emission limitation achieved by the best performing 12% of the existing sources (for which the administrator has emissions information), excluding those sources that have, within 18 months before the emission standard is proposed or within 30 months before such standard is promulgated, whichever is later, first achieved a level of emission rate or emission reduction which complies, or would comply if the source is not subject to such standard, with the lowest achievable emission rate (as defined in 9VAC5-80-2010) applicable to the source category and prevailing at the time, in the category or subcategory, for categories and subcategories of stationary sources with 30 or more sources; or

b. The average emission limitation achieved by the best performing five sources (for which the administrator has or could reasonably obtain emissions information) in the category or subcategory, for a category or subcategory of stationary sources with fewer than 30 sources;

2. For new sources, the emission limitation achieved in practice by the best controlled similar source.

"Maximum achievable control technology (MACT) standard" means:

1. An emission standard;

2. An alternative emission standard;

3. An alternative emission limitation; or

4. An equivalent emission limitation established pursuant to § 112 of the federal Clean Air Act that applies to the collection of equipment, activities, or both, regulated by such standard or limitation.

A MACT standard may include or consist of a design, equipment, work practice, or operational requirement, or other measure, process, method, system, or technique (including prohibition of emissions) that the administrator or board establishes for new or existing sources to which such standard or limitation applies. Every MACT standard established pursuant to § 112 of the federal Clean Air Act includes Subpart A of 40 CFR Part 63, as provided by 40 CFR 63.1(a)(4), and all applicable appendices of 40 CFR Part 63 or of other parts of Title 40 of the Code of Federal Regulations that are referenced in that standard.

"Minor new source review (MNSR) permit" means a document issued pursuant to Article 6 (9VAC5-80-1100 et seq.) of Part II of 9VAC5 Chapter 80 containing all federally enforceable conditions necessary to enforce the application and operation of any best achievable control technology or other requirements such that the applicable requirements are met.

"New affected source" means the collection of equipment, activities, or both, that if constructed after the issuance of a permit for the source pursuant to 9VAC5-60-140, is subject to the applicable MACT emission limitation for new sources. Each permit shall define the term "new affected source," which will be the same as the "affected source" unless a different collection is warranted based on consideration of factors including:

1. Emission reduction impacts of controlling individual sources versus groups of sources;

2. Cost effectiveness of controlling individual equipment;

3. Flexibility to accommodate common control strategies;

4. Cost and benefits of emissions averaging;

5. Incentives for pollution prevention;

6. Feasibility and cost of controlling processes that share common equipment (e.g., product recovery devices);

7. Feasibility and cost of monitoring; and

8. Other relevant factors.

"New source" means any affected source the construction or reconstruction of which is commenced after the administrator first proposes a MACT standard under 40 CFR Part 63 establishing an emission standard applicable to such source.

"New source review program" means a program for the preconstruction review and permitting of new stationary sources or expansions to existing ones in accordance with Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1700 et seq.), or Article 9 (9VAC5-80-2000 et seq.) of Part II of 9VAC5 Chapter 80 promulgated to implement the requirements of §§ 110(a)(2)(c), 112 (relating to permits for hazardous air pollutants), 165 (relating to permits in prevention of significant deterioration areas), and 173 (relating to permits in nonattainment areas) of the federal Clean Air Act.

"Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the stationary source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is state and federally enforceable. Fugitive emissions count in determining the potential to emit of a stationary source.

"Reconstruction," unless otherwise defined in a MACT standard, means the replacement of components of an affected or a previously nonaffected source to such an extent that:

1. The fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable new source; and

2. It is technologically and economically feasible for the reconstructed source to meet the MACT standards established by the administrator (or the board) pursuant to § 112 of the Clean Air Act. Upon reconstruction, an affected source, or a stationary source that becomes an affected source, is subject to MACT standards for new sources, including compliance dates, irrespective of any change in emissions of hazardous air pollutants from that source.

"Research or laboratory activities" means activities whose primary purpose is to conduct research and development into new processes and products where such activities are operated under the close supervision of technically trained personnel and are not engaged in the manufacture of products for commercial sale in commerce, except in a de minimis manner, and where the source is not in a source category, specifically addressing research or laboratory activities, that is listed pursuant to § 112(c)(7) of the federal Clean Air Act.

"Section 112(j) deadline" or "§ 112(j) deadline" means the date 18 months after the date by which a MACT standard is scheduled to be promulgated under 40 CFR Part 63, except that for all major sources listed in the source category schedule for which a MACT standard is scheduled to be promulgated by November 15, 1994, the § 112(j) deadline is November 15, 1996, and for all major sources listed in the source category schedule for which a MACT standard is scheduled to be promulgated by November 15, 1997, the § 112(j) deadline is December 15, 1999.

"Similar source" means that equipment or collection of equipment that, by virtue of its structure, operability, type of emissions and volume and concentration of emissions, is substantially equivalent to the new affected source and employs control technology for control of emissions of hazardous air pollutants that is practical for use on the new affected source.

"Source category schedule for standards" means the schedule issued pursuant to § 112(e) of the federal Clean Air Act for promulgating MACT standards issued pursuant to § 112(d) of the federal Clean Air Act and published in the Federal Register at 67 FR 6521, February 12, 2002.