9VAC5-45-850. Notification, records and reporting.

Chapter 45. Consumer and Commercial Products

Part I
Special Provisions

9VAC5-45-10. Applicability.

A. The provisions of this chapter, unless specified otherwise, shall apply to:

1. Any product for which an emission standard or other requirement is prescribed under this chapter; and

2. Any owner or other person that engages in or permits an operation that is subject to the provisions of this chapter. Such operations may include the manufacture, packaging, distribution, marketing, application, sale or use, or contracting for the application, sale, or use of the products specified in subdivision 1 of this subsection.

B. The provisions set forth in subdivisions 1 through 6 of this subsection, unless specified otherwise, shall not apply to any product or operation for which emission standards are prescribed under this chapter.

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

2. The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction).

3. The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) and Article 1 (9VAC5-50-60 et seq.) of Part II of 9VAC5-50 (New and Modified Stationary Sources).

4. The provisions of Article 2 (9VAC5-40-130 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) and Article 2 (9VAC5-50-130 et seq.) of Part II of 9VAC5-50 (New and Modified Stationary Sources).

5. The provisions of Article 4 (9VAC5-60-200 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources) and Article 5 (9VAC5-60-300 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

6. The provisions of Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.), and Article 9 (9VAC5-80-2000 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources).

C. Nothing in this chapter shall be interpreted to exempt a stationary source from any provision of 9VAC5-40 (Existing Stationary Sources), 9VAC5-50 (New and Modified Stationary Sources), 9VAC5-60 (Hazardous Air Pollutant Sources) or 9VAC5-80 (Permits for Stationary Sources) that may apply.

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

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-45-20. Compliance.

A. Unless otherwise specified in this chapter, no owner or other person shall engage in or permit any applicable operation (such as the manufacture, packaging, distribution, marketing, application, sale or use, or contracting for the application, sale or use, of any product) in violation of a standard prescribed under this chapter after the effective date of such standard.

1. Compliance with standards in this chapter, other than opacity standards, shall be determined by emission tests established by 9VAC5-45-30, unless specified otherwise in the applicable standard.

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

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

b. 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.

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

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

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

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

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

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

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

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

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

B. No owner or other person subject to the provisions of this chapter shall fail to conduct emission tests as required under this chapter.

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

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

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

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

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

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-30. Emission testing.

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

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

C. Emission tests for operations and products subject to standards prescribed under this chapter shall be conducted under conditions that the board shall specify to the owner, based on representative performance of such operation or product. The owner shall make available to the board such records as may be necessary to determine the conditions of the emission tests. Operations during periods of startup, shutdown, and malfunction shall not constitute representative conditions for the purpose of an emission test unless otherwise specified in the applicable standard.

D. An owner may request that the board determine the opacity of emissions from operations or control devices that are subject to the provisions of this chapter during the emission tests required by this section.

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

F. The board may test emissions of volatile organic compounds from any operation or product subject to standards prescribed under this chapter. Upon request of the board the owner shall provide, or cause to be provided, emission testing facilities as follows:

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

2. Safe sampling platforms.

3. Safe access to sampling platforms.

4. Utilities for sampling and testing equipment.

5. Test enclosures for determining capture efficiency.

G. The board may, at its discretion, accept other demonstrations of compliance in lieu of emission testing, such as the results of manufacturer emission testing of a product batch or manufacturer product batch formulation records.

H. Upon request of the board, any owner or other person causing or permitting any operation subject to the provisions of this chapter shall conduct emission tests in accordance with procedures approved by the board.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-40. Monitoring.

A. Unless otherwise approved by the board, owners or other persons subject the provisions of an standard under this chapter shall install, calibrate, maintain, and operate systems for continuously monitoring and recording emissions of specified pollutants as specified in the applicable article of this chapter. However, nothing in this chapter shall exempt any owner from complying with subsection F of this section.

B. All continuous monitoring systems and monitoring devices shall be installed and operational prior to conducting emission tests required under 9VAC5-45-30. Verification of operational status shall, as a minimum, include completion of the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device and completion of any conditioning period specified by the appropriate specification in Appendix B of 40 CFR Part 60.

C. During any emissions tests required under 9VAC5-45-30 or within 30 days thereafter and at such other times as may be requested by the board, the owner or other person subject to the requirements of subsection A of this section shall conduct continuous monitoring system performance evaluations and furnish the board within 60 days of them two or, upon request, more copies of a written report of the results of such tests. These continuous monitoring system performance evaluations shall be conducted in accordance with the requirements and procedures specified in the applicable emission standard, the requirements contained in applicable procedures in 9VAC5-20-121, and the requirements and procedures equivalent to those contained in the appropriate specification of Appendix B of 40 CFR Part 60.

D. Unless otherwise approved by the board, all continuous monitoring systems required by subsection A of this section shall be installed, calibrated, maintained, and operated in accordance with (i) applicable requirements in this section, (ii) requirements in the applicable emission standard, and (iii) requirements equivalent to those in 40 CFR 60.13.

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

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

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

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

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

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

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

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

8. Alternative procedures for performing calibration checks.

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

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

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

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-50. Notification, records and reporting.

A. Any owner or other person subject to the continuous monitoring provisions of 9VAC5-45-40 C shall provide written notifications to the board of the following:

1. The date upon which demonstration of the continuous monitoring system performance begins in accordance with 9VAC5-45-40 C. Notification shall be postmarked or submitted electronically not less than 30 days prior to such date.

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

3. The anticipated date for conducting the opacity observations required by 9VAC5-45-20 A 3. The notification shall also include, if appropriate, a request for the board to provide a visible emissions reader during an emission test. The notification shall be postmarked or submitted electronically not less than 30 days prior to such date.

B. Any owner or other person subject to the continuous monitoring provisions of 9VAC5-45-40 A shall maintain records of the occurrence and duration of any startup, shutdown, or malfunction of the operation subject to the provisions of an article under this chapter; any malfunction of the air pollution control equipment; or any periods during which a continuous monitoring system or monitoring device is inoperative.

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

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

2. The process operating time during the reporting period.

3. Specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the source.

4. The nature and cause of any malfunction (if known), the corrective action taken or preventative measures adopted.

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

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

D. Any owner or other person subject to the continuous monitoring provisions of 9VAC5-45-40 or monitoring requirements of an article under this chapter shall maintain a file of all measurements, including continuous monitoring system, monitoring device, and emission testing measurements; all continuous monitoring system performance evaluations; all continuous monitoring system or monitoring device calibration checks; adjustments and maintenance performed on these systems or devices; and all other information required by this chapter recorded in a permanent form suitable for inspection. The file shall be retained for at least two years (unless a longer period is specified in the applicable standard) following the date of such measurements, maintenance, reports, and records.

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

F. Any owner or other person that is subject to the provisions of this chapter shall keep records as may be necessary to determine its emissions. Any owner or other person claiming that an operation or product is exempt from the provisions of the Regulations for the Control and Abatement of Air Pollution shall keep records as may be necessary to demonstrate to the satisfaction of the board its continued exempt status.

G. Unless otherwise specified by the provisions of an article under this chapter, all records required to determine compliance with the provisions of an article under this chapter shall be maintained by the owner or other person subject to such provision for two years from the date such record is created and shall be made available to the board upon request.

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

I. Information submitted to the board to meet the requirements of this chapter shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

Part II
Emission Standards

Article 1
Emission Standards for Portable Fuel Containers and Spouts Manufactured Before August 1, 2010

9VAC5-45-60. Applicability.

Article 1
Emission Standards for Portable Fuel Containers and Spouts Manufactured before August 1, 2010

A. Except as provided in 9VAC5-45-70, the provisions of this article apply to any portable fuel container or spout manufactured before August 1, 2010. The provisions of Article 2 (9VAC5-45-160 et seq.) of this part apply to portable fuel containers and spouts manufactured on or after August 1, 2010.

B. Except as provided in 9VAC5-45-70, the provisions of this article apply to any owner or other person who sells, supplies, offers for sale, or manufactures for sale portable fuel containers or spouts.

C. The provisions of this article apply only to owners and other persons in the Northern Virginia and Fredericksburg Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-70. Exemptions.

A. The provisions of this article do not apply to any portable fuel container or spout manufactured for shipment, sale, and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-60.

B. The provisions of this article do not apply to a manufacturer or distributor who sells, supplies, or offers for sale a portable fuel container or spout that does not comply with the emission standards specified in 9VAC5-45-90, as long as the manufacturer or distributor can demonstrate that: (i) the portable fuel container or spout is intended for shipment and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-60 C; and (ii) the manufacturer or distributor has taken reasonable prudent precautions to assure that the portable fuel container or spout is not distributed within the applicable volatile organic compound emissions control areas designated in 9VAC5-45-60 C. This subsection does not apply to portable fuel containers or spouts that are sold, supplied, or offered for sale to retail outlets.

C. The provisions of this article do not apply to safety cans meeting the requirements of 29 CFR Part 1926 Subpart F.

D. The provisions of this article do not apply to portable fuel containers with a nominal capacity less than or equal to one quart.

E. The provisions of this article do not apply to rapid refueling devices with nominal capacities greater than or equal to four gallons, provided (i) such devices are designed for use in officially sanctioned off-highway motor sports such as car racing or motorcycle competitions, and (ii) such devices either create a leak-proof seal against a stock target fuel tank, or are designed to operate in conjunction with a receiver permanently installed on the target fuel tank.

F. The provisions of this article do not apply to portable fuel tanks manufactured specifically to deliver fuel through a hose attached between the portable fuel tank and the outboard engine for the purpose of operating the outboard engine.

G. The provisions of this article do not apply to closed-system portable fuel containers that are used exclusively for fueling remote control model airplanes.

H. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell, or otherwise provide, products to businesses/governmental entities/individuals.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-80. Definitions.

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

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

C. Terms defined.

"ASTM" means the American Society for Testing and Materials.

"CARB" means California Air Resources Board.

"Consumer" means any person who purchases or otherwise acquires a new portable fuel container or spout for personal, family, household, or institutional use. Persons acquiring a portable fuel container or spout for resale are not "consumers" for that product.

"Distributor" means any person to whom a portable fuel container or spout is sold or supplied for the purpose of resale or distribution in commerce. This term does not include manufacturers, retailers, and consumers.

"Fuel" means all motor fuels subject to any provision of Chapter 12 (§ 59.1-149 et seq.) of Title 59.1 of the Code of Virginia, excluding liquefied petroleum gas, compressed natural gas, and hydrogen. This term includes, but is not limited to, gasoline, diesel fuel, and gasoline-alcohol blends.

"Manufacturer" means any person who imports, manufactures, assembles, produces, packages, repackages, or re-labels a portable fuel container or spout.

"Nominal capacity" means the volume indicated by the manufacturer that represents the maximum recommended filling level.

"Outboard engine" means a spark-ignition marine engine that, when properly mounted on a marine watercraft in the position to operate, houses the engine and drive unit external to the hull of the marine watercraft.

"Permeation" means the process by which individual fuel molecules may penetrate the walls and various assembly components of a portable fuel container directly to the outside ambient air.

"Portable fuel container" means any container or vessel with a nominal capacity of 10 gallons or less intended for reuse that is designed, used, sold, advertised for sale, or offered for sale for receiving, transporting, storing, and dispensing fuel. Portable fuel containers do not include containers or vessels permanently embossed or permanently labeled as described in 49 CFR 172.407(a) with language indicating that the containers or vessels are solely intended for use with nonfuel products.

"Retail outlet" means any establishment at which portable fuel containers or spouts are sold, supplied, or offered for sale.

"Retailer" means any person who owns, leases, operates, controls, or supervises a retail outlet.

"Spill-proof spout" means any spout that complies with the standards specified in 9VAC5-45-90 B and the administrative requirements in 9VAC5-45-100.

"Spill-proof system" means any configuration of portable fuel container and firmly attached spout that complies with the standards in 9VAC5-45-90 A and the administrative requirements in 9VAC5-45-100.

"Spout" means any device that can be firmly attached to a portable fuel container and through which the contents of the container may be poured. A spout does not include a device that can be used to lengthen the spout to accommodate necessary applications.

"Target fuel tank" means any receptacle that receives fuel from a portable fuel container.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-90. Standard for volatile organic compounds.

A. No owner or other person shall sell, supply, offer for sale, or manufacture for sale any portable fuel container after the compliance dates specified in 9VAC5-45-120 A unless that portable fuel container meets all of the following standards for spill-proof systems:

1. Has an automatic shut-off that stops the fuel flow before the target fuel tank overflows.

2. Automatically closes and seals when removed from the target fuel tank and remains completely closed when not dispensing fuel.

3. Has only one opening for both filling and pouring.

4. Does not exceed a permeation rate of 0.4 grams per gallon per day.

5. Is warranted by the manufacturer for a period of not less than one year against defects in materials and workmanship.

B. No owner or other person shall sell, supply, offer for sale, or manufacture for sale any spout after the compliance dates specified in 9VAC5-45-120 unless that spout meets all of the following standards for spill-proof spouts:

1. Has an automatic shut-off that stops the fuel flow before the target fuel tank overflows.

2. Automatically closes and seals when removed from the target fuel tank and remains completely closed when not dispensing fuel.

3. Is warranted by the manufacturer for a period of not less than one year against defects in materials and workmanship.

C. The test procedures for determining compliance with the standards in this section are set forth in 9VAC5-45-130. The manufacturer of portable fuel containers or spouts shall perform the tests for determining compliance as set forth in 9VAC5-45-130 to show that its product meets the standards of this section prior to allowing the product to be offered for sale. The manufacturer shall maintain records of these compliance tests for as long as the product is available for sale and shall make those test results available within 60 days of request.

D. Compliance with the standards in this section does not exempt spill-proof systems or spill-proof spouts from compliance with other applicable federal and state statutes and regulations such as state fire codes, safety codes, and other safety regulations, nor will the board test for or determine compliance with such other statutes or regulations.

E. The following provisions apply to sell through of portable fuel containers and spouts manufactured before August 1, 2010:

1. Notwithstanding the provisions of subsections A and B of this section, a portable fuel container or spout manufactured before the applicable compliance date specified in 9VAC5-45-120 A may be sold, supplied, or offered for sale after the applicable compliance date, if the date of manufacture or a date code representing the date of manufacture is clearly displayed on the portable fuel container or spout.

2. Notwithstanding the provisions of subsections A and B of this section, a portable fuel container or spout manufactured after the applicable compliance date specified in 9VAC5-45-120 A and before August 1, 2010, may be sold, supplied, or offered for sale on or after August 1, 2010, if it complies with all of the provisions of Article 2 (9VAC5-45-160 et seq.) of this part.

3. Except as provided in subdivisions 1 and 2 of this subsection, displaying the date of manufacture, or a code indicating the date of manufacture, on the product container or package does not exempt the owner or product from the provisions of this article.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-100. Administrative requirements.

A. Each manufacturer of a portable fuel container subject to and complying with 9VAC5-45-90 A shall clearly display on each spill-proof system:

1. The phrase "Spill-Proof System";

2. A date of manufacture or representative date code; and

3. A representative code identifying the portable fuel container as subject to and complying with 9VAC5-45-90 A.

B. Each manufacturer of a spout subject to and complying with 9VAC5-45-90 B shall clearly display on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto:

1. The phrase "Spill-Proof Spout";

2. A date of manufacture or representative date code; and

3. A representative code identifying the spout as subject to and complying with 9VAC5-45-90 B.

C. Each manufacturer subject to subsection A or B shall file an explanation of both the date code and representative code with the board no later than the later of three months after the effective date of this article or within three months of production, and within three months after any change in coding.

D. Each manufacturer of a spout subject to subsection B of this section shall clearly display the make, model number, and size of those portable fuel containers the spout is designed to accommodate and for which the manufacturer can demonstrate the container's compliance with 9VAC5-45-90 on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto.

E. Manufacturers of portable fuel containers not subject to or not in compliance with 9VAC5-45-90 may not display the phrase "Spill-Proof System" or "Spill-Proof Spout" on the portable fuel container or spout or on any sticker or label affixed thereto or on any accompanying package.

F. Each manufacturer of a portable fuel container or spout subject to and complying with 9VAC5-45-90 that due to its design or other features cannot be used to refuel on-road motor vehicles shall clearly display the phrase "Not Intended For Refueling On-Road Motor Vehicles" in type of 34 point or greater on each of the following:

1. For a portable fuel container sold as a spill-proof system, on the system or on a label affixed thereto, and on the accompanying package, if any; and

2. For a spill-proof spout sold separately from a spill-proof system, on either the spill-proof spout, or a label affixed thereto, and on the accompanying package, if any.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-110. Compliance.

The provisions of subsections B, D, F, and G of 9VAC5-45-20 (Compliance) apply. The other provisions of 9VAC5-45-20 do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-120. Compliance schedules.

A. Affected persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. January 1, 2005, in the Northern Virginia VOC Emissions Control Area; or

2. January 1, 2008, in the Fredericksburg VOC Emissions Control Area.

B. Any owner or other person who cannot comply with the provisions of this article by the date specified in subsection A of this section, due to extraordinary reasons beyond that person's reasonable control, may apply in writing to the board for a waiver. The waiver application shall set forth:

1. The specific grounds upon which the waiver is sought, including the facts that support the extraordinary reasons that compliance is beyond the applicant's reasonable control;

2. The proposed date by which compliance with the provisions of this article will be achieved; and

3. A compliance report detailing the methods by which compliance will be achieved.

C. No waiver may be granted unless all of the following findings are made:

1. That, due to reasons beyond the reasonable control of the applicant, required compliance with this article would result in extraordinary economic hardship;

2. That the public interest in mitigating the extraordinary hardship to the applicant by issuing the waiver outweighs the public interest in avoiding any increased emissions of air contaminants that would result from issuing the waiver; and

3. That the compliance report proposed by the applicant can reasonably be implemented and shall achieve compliance as expeditiously as possible.

D. Any approval of a waiver shall specify a final compliance date by which compliance with the requirements of this article shall be achieved. Any approval of a waiver shall contain a condition that specifies the increments of progress necessary to assure timely compliance and such other conditions that the board finds necessary to carry out the purposes of this article.

E. A waiver shall cease to be effective upon the failure of the party to whom the waiver was granted to comply with any term or condition of the waiver.

F. Upon the application of any person, the board may review, and for good cause, modify or revoke a waiver from requirements of this article.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-130. Test methods and procedures.

A. The provisions of subsection G of 9VAC5-45-30 (Emission testing) apply. The other provisions of 9VAC5-45-30 do not apply.

B. Testing to determine compliance with 9VAC5-45-90 B of this article shall be performed by using the following test procedures (see 9VAC5-20-21):

1. CARB "Automatic Shut-Off Test Procedure for Spill-Proof Systems and Spill-Proof Spouts."

2. CARB "Automatic Closure Test Procedure for Spill-Proof Systems and Spill-Proof Spouts."

C. Testing to determine compliance with 9VAC5-45-90 A of this article shall be performed by using all test procedures in subsection B of this section and the following test procedure: CARB Determination of Permeation Rate for Spill-Proof Systems (see 9VAC5-20-21). Alternative methods that are shown to be accurate, precise, and appropriate may be used upon written approval of the board.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-140. Monitoring.

The provisions of 9VAC5-45-40 (Monitoring) do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-150. Notification, records and reporting.

The provisions of subsections E, F, and G of 9VAC5-45-50 (Notification, records and reporting) apply. The other provisions of 9VAC5-45-50 do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 2
Emission Standards for Portable Fuel Containers and Spouts Manufactured on or After August 1, 2010

9VAC5-45-160. Applicability.

Article 2
Emission Standards for Portable Fuel Containers and Spouts Manufactured on or after August 1, 2010

A. Except as provided in 9VAC5-45-170, the provisions of this article apply to any portable fuel container or spout manufactured on or after August 1, 2010. The provisions of Article 1 (9VAC5-45-60 et seq.) of this part apply to portable fuel containers and spouts manufactured before August 1, 2010.

B. Except as provided in 9VAC5-45-170, the provisions of this article apply to any owner or other person who sells, supplies, offers for sale, advertises for sale, or manufactures for sale portable fuel containers or spouts.

C. The provisions of this article apply only to owners and other persons in the Northern Virginia, Fredericksburg, and Richmond Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-170. Exemptions.

B. The provisions of this article do not apply to a manufacturer or distributor who sells, supplies, or offers for sale a portable fuel container or spout that does not comply with the emission standards specified in 9VAC5-45-190, as long as the manufacturer or distributor can demonstrate that: (i) the portable fuel container or spout is intended for shipment and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-160 C; and (ii) the manufacturer or distributor has taken reasonable prudent precautions to assure that the portable fuel container or spout is not distributed within the applicable volatile organic compound emissions control areas designated in 9VAC5-45-160 C. This subsection does not apply to portable fuel containers or spouts that are sold, supplied, or offered for sale to retail outlets.

C. The provisions of this article do not apply to safety cans meeting the requirements of 29 CFR Part 1926 Subpart F.

D. The provisions of this article do not apply to portable fuel containers with a nominal capacity less than or equal to one quart.

E. The provisions of this article do not apply to rapid refueling devices with nominal capacities greater than or equal to four gallons provided (i) such devices are designed for use in officially sanctioned off-highway motor sports such as car racing or motorcycle competitions, and (ii) such devices either create a leak-proof seal against a stock target fuel tank, or are designed to operate in conjunction with a receiver permanently installed on the target fuel tank.

G. The provisions of this article do not apply to closed-system portable fuel containers that are used exclusively for fueling remote control model airplanes.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-180. Definitions.

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

C. Terms defined.

"ASTM" means the American Society for Testing and Materials.

"CARB" means California Air Resources Board.

"CARB certification executive order" means a CARB decision, signed by the CARB Executive Officer and specifying that one or more portable fuel containers or spouts has been certified by CARB to meet the requirements of CARB "Certification Procedure 501 for Portable Fuel Containers and Spill-Proof Spouts, CP-501" (see 9VAC5-20-21)

"Kerosene" or "kerosine" means any light petroleum distillate that is commonly or commercially known, sold, or represented as kerosene, that is used in space heating, cook stoves, and water heaters, and that is suitable for use as a light source when burned in wick-fed lamps.

"Manufacturer" means any person who imports, manufactures, assembles, produces, packages, repackages, or re-labels a portable fuel container or spout.

"Nominal capacity" means the volume indicated by the manufacturer that represents the maximum recommended filling level.

"Permeation" means the process by which individual fuel molecules may penetrate the walls and various assembly components of a portable fuel container directly to the outside ambient air.

"Portable fuel container" means any container or vessel with a nominal capacity of 10 gallons or less intended for reuse that is designed, used, sold, advertised for sale, or offered for sale for receiving, transporting, storing, and dispensing fuel or kerosene. Portable fuel containers do not include containers or vessels permanently embossed or permanently labeled as described in 49 CFR 172.407 (a) with language indicating that the containers or vessels are solely intended for use with nonfuel or nonkerosene products.

"Product category" means the applicable category that best describes the product with respect to its nominal capacity, material construction, fuel flow rate, and permeation rate, as applicable, as determined by the board.

"Retail outlet" means any establishment at which portable fuel containers or spouts are sold, supplied, or offered for sale.

"Retailer" means any person who owns, leases, operates, controls, or supervises a retail outlet.

"Spill-proof spout" means any spout that is certified by the board to be in compliance with the standards specified in 9VAC5-45-190 B and complies with the administrative requirements in 9VAC5-45-220.

"Spill-proof system" means any configuration of portable fuel container and firmly attached spout that is certified by the board to be in compliance with the standards in 9VAC5-45-190 B and complies with the administrative requirements in 9VAC5-45-220.

"Target fuel tank" means any receptacle that receives fuel from a portable fuel container.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-190. Standard for volatile organic compounds.

A. The following provisions apply to portable fuel containers and spouts manufactured on or after August 1, 2010:

1. No owner or other person shall sell, supply, offer for sale, or advertise for sale any portable fuel container or spout manufactured on or after August 1, 2010, unless that portable container or spout is certified by the board to be a spill-proof system or spill-proof spout that is in compliance with the standards in subsection B of this section in accordance with the certification procedures specified in 9VAC5-45-200.

2. No owner or other person shall manufacture for sale any portable fuel container or spout on or after August 1, 2010, unless that portable container or spout is certified by the board to be a spill-proof system or spill-proof spout that is in compliance with the standards in subsection B of this section in accordance with the certification procedures specified in 9VAC5-45-200.

B. The following standards apply to each portable fuel container or spout manufactured on or after August 1, 2010, that is subject to the provisions of this article:

1. Portable fuel containers shall be color coded and marked as follows:

a. Portable fuel containers shall be color coded for specific fuels:

(1) Gasoline – red;

(2) Diesel – yellow; and

(3) Kerosene – blue.

b. Each portable fuel container shall have identification markings on the container and on the spill-proof spout.

(1) Red containers shall be permanently identified with the embossed language or permanent durable label "GASOLINE" in minimum 34-point Arial font or a font of equivalent proportions.

(2) Yellow containers shall be permanently identified with the embossed language or permanent durable label "DIESEL" in minimum 34-point Arial font or a font of equivalent proportions.

(3) Blue containers shall be permanently identified with the embossed language or permanent durable label "KEROSENE" in minimum 34-point Arial font or a font of equivalent proportions.

2. Portable fuel containers shall comply with emissions standards as follows:

a. Portable fuel containers that are equipped with an intended spill-proof spout shall emit no more than 0.3 grams per gallon per day.

b. Compliance with emission standards in this subdivision shall be determined using the test procedure specified in 9VAC5-45-250 B 2.

c. Portable fuel containers that share similar designs, that are constructed of identical materials, and that are manufactured using identical processes, but vary only in size or color may be considered for certification as a product family.

3. Portable fuel containers and spouts shall comply with the specifications for durability in subsection 7.4 of the test procedure specified in 9VAC5-45-250 B 2.

4. There shall be no fluid leakage from any point in the spill-proof system or spill-proof spout as specified in the test procedures specified in 9VAC5-45-250 B 1 and 2.

5. The spill-proof system or spill-proof spout shall automatically close when the spill-proof spout is removed from the target tank, seal, and remain completely closed when not dispensing fuel, as specified in the test procedure specified in 9VAC5-45-250 B 1. Also, no liquid, beyond wetted surfaces, shall be retained in the spill-proof spout after fueling that may evaporate into the atmosphere.

6. An applicant seeking certification of a portable fuel container or spout from the board pursuant to this article shall also:

a. Warrant that its spill-proof system or spill-proof spout is free from defects in materials and workmanship that cause such systems or spill-proof spouts to fail to conform with each of the certification and compliance standards specified in CARB "Certification Procedure 501 for Portable Fuel Containers and Spill-Proof Spouts, CP-501," for a period of one year from the date of sale; and

b. Supply a copy of the warranty language specified in subdivision a of this subdivision that is supplied to the buyer in the packaging for each spill-proof system or spill-proof spout at the time of sale identifying the following minimum requirements:

(1) A statement of the terms and length of the warranty period;

(2) An unconditional statement that the spill-proof system or spill-proof spout is certified to the requirements in subdivision a of this subdivision (which may be referred to as being certified to California requirements); and

(3) A listing of the specific certification requirements or limitations to which it was certified.

7. An applicant shall supply a copy of the operating instructions intended for each spill-proof system or spill-proof spout, and fueling application, as supplied to the buyer in the packaging for each spill-proof system or spill-proof spout at the time of sale. These instructions shall include, at a minimum, the following specifications:

a. A listing of any specific equipment types, such as passenger cars and trucks, lawn and garden equipment, off-road motorcycles and snowmobiles, industrial equipment, and marine vessels that the spill-proof system or spill-proof spout, is not intended to refuel; and

b. Other instructions, such as the recommended fueling angle(s) or special instructions such as venting prior to use.

8. Spill-proof systems, spill-proof spouts and all components incorporated therein, such as gaskets, seals, or O-rings must demonstrate compliance with the requirements specified in 9VAC5-45-250 B 3 and 4. Applicants may request limited certification for use with only specified fuel blends. Such fuel-specific certifications shall clearly specify the limits and restrictions of the certification.

9. A portable fuel container may incorporate a secondary opening or vent hole (i.e., an opening other than the opening needed for the spout) provided the secondary opening or vent hole is not easily tampered by a consumer, and it does not emit hydrocarbon vapors in excess of the amounts specified in this section during fueling, storage, transportation, or handling events.

C. The test procedures for determining compliance with the standards in this section are set forth in 9VAC5-45-250. The manufacturer of portable fuel containers or spouts shall perform the tests for determining compliance as set forth in 9VAC5-45-250 to show that its product meets the standards of this section prior to allowing the product to be offered for sale. The manufacturer shall maintain records of these compliance tests for as long as the product is available for sale and shall make those test results available within 60 days of request.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-200. Certification procedures.

A. Provisions follow concerning the requirements and process for board certification of a portable fuel container or spout manufactured on or after August 1, 2010, as a spill-proof system or spill-proof spout.

B. To be considered by the board for certification, an application for certification shall be submitted in writing to the board by the manufacturer of the portable fuel container or spout.

1. Except as provided in subdivision D 2 of this section, the application shall contain the following information:

a. An identification of the names, addresses, and phone numbers of the company, owner or other persons that are submitting the application, and the names and phone numbers of contact persons that are knowledgeable concerning the application.

b. Model numbers and sizes of spill-proof systems or spill-proof spouts for which certification is requested.

c. Test data that demonstrates that the spill-proof systems or spill-proof spouts comply with each of the certification requirements identified in 9VAC5-45-190 B.

d. Engineering drawings of the spill-proof system or spill-proof spout detailing dimensions specific to each component. If an application is submitted for a spill-proof system (i.e., container and spout), separate dimensioned drawings for the portable fuel container and for the spill-proof spout are required. If more than one type or size of portable fuel container or more than one type of spill-proof spout is included in the application, separate dimensioned drawings are required for each component.

e. Test data from each of the test procedures specified in 9VAC5-45-250 B 1 and 2 demonstrating that the spill-proof system, spill-proof spout, or component meets the applicable criteria.

f. Any other test data that supports the requirements in subdivision e of this subsection and that would assist in the determination of certification.

g. The language, symbols, or patterns that will actually be permanently embossed on the spill-proof system or spill-proof spout. This shall include examples of date code wheels as well as all other permanent markings and their locations on the container and/or spill-proof spout. Once the board certifies a spill-proof system or spill-proof spout, these permanent markings cannot be altered or modified in any way without first obtaining the board's approval.

h. The language or labels that may be affixed to the spill-proof system or spill-proof spout at the time of sale.

i. The manufacturer's recommended instructions, instruction decals, or any other type of placard attached to the spill-proof system or spill-proof spout at the time of sale. Include examples of actual decals or placards if available. Proposed placards or decals are sufficient if actual samples are not available. Once the board certifies a spill-proof system or spill-proof spout, these decals or placards cannot be altered or modified in any way without first obtaining the board's approval.

j. The manufacturer warranty(s) as defined in 9VAC5-45-190 B 6.

k. A description of the materials used in the construction of the spill-proof system or spill-proof spout. Material compositions of gaskets, O-rings, and seals must be described.

l. If the applicant is not the manufacturer of all system components incorporated in a spill-proof system or spill-proof spout, the applicant must include evidence that the component manufacturers have been notified of the applicant's intended use of the manufacturers' components in the spill-proof system or spill-proof spout for which the application is being made.

(1) If the applicant is requesting inclusion of one or more components not manufactured by it on the applicable spill-proof system or spill-proof spout, the applicant shall notify the component manufacturers and obtain the information required of the application as specified in this subsection.

(2) If the component design and material specifications requested for inclusion in the certification have not been previously incorporated in a spill-proof system or spill-proof spout that has been issued a CARB certification executive order or has been certified by the board pursuant to these procedures, then each of the components shall be subject to each of the application and test requirements specified in this article.

m. A sample of the spill-proof system or spill-proof spout is not required as part of the initial application for certification. The board may later require that a sample be provided if it is deemed necessary to make the proper certification determination.

n. The document certification statement required by 9VAC5-20-230, signed by a responsible official as defined in that section.

o. The information required by subdivision B 1 a of this section is public information that may not be claimed as confidential. Other information submitted to the board to meet the requirements of this article shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

2. In accordance with the time periods specified in subsection C of this section, the board will certify a portable fuel container or spout. The board will specify such terms and conditions as are necessary to ensure that the emissions from the portable fuel containers or spouts do not exceed the VOC standards specified in 9VAC5-45-190. The certification shall also include operational terms, conditions, and data to be reported to the board to ensure that all requirements of this article are met.

C. Provisions follow concerning the portable fuel container or spout certification time frames.

1. The board will take appropriate action on an application within the following time periods:

a. Within 30 working days of receipt of an application, the board will inform the applicant in writing that either:

(1) The application is complete and accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

b. Within 30 working days of receipt of additional information provided in response to a determination that an application is deficient, the board will inform the applicant in writing that either:

(1) The additional information is sufficient to make the application complete, and the application is accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

c. If the board finds that an application meets the requirements of subsection B of this section, then it shall certify that the requirements have been met in accordance with the requirements of this article. The board will normally act to approve or disapprove a complete application within 90 working days after the application is deemed complete. The board may extend this time period if additional information is needed.

2. Before the end of each time period specified in this section, the board and the applicant may mutually agree to a longer time period for the board to take the appropriate action.

D. In accordance with the following procedures, the board will take into consideration whether the portable fuel container or spout has been certified by CARB.

1. In lieu of granting certification based upon review of an application as required under subsection B of this section, certification may be granted by the board as follows:

a. Certification may be granted solely on the basis of the effective CARB certification executive order, or

b. Certification may be granted on the basis of the effective CARB certification executive order, modified as necessary by the board to meet the requirements of this article.

2. An abbreviated application may be submitted by a manufacturer requesting certification by the board under subdivision 1 of this subsection. The abbreviated application shall include, as a minimum:

a. A request by the manufacturer that certification be granted by the board based upon an effective CARB certification executive order.

b. A copy of the effective CARB certification executive order, including all conditions established by CARB applicable to the CARB certification executive order.

c. A certification that the manufacturer will (i) comply with the applicable CARB certification executive order within the volatile organic compound emissions control areas specified in 9VAC5-45-160 C and (ii) comply with any additional terms and conditions that the board may specify in granting certification under this subsection.

d. Manufacturer and product information as specified in subdivisions B 1 a and b of this section.

e. The document certification statement required by 9VAC5-20-230 certifying the information in the application and signed by a responsible official.

3. The board's certification shall contain such terms and conditions as necessary to adapt terms and conditions in the CARB certification executive order to satisfy the provisions of this article.

4. Any board certification granted under this subsection is contingent upon the effective CARB certification executive order provided with the application. Board certification granted on the basis of this subsection automatically expires on the date that the CARB certification executive order upon which it was based is no longer effective.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-210. Innovative products.

Manufacturers of portable fuel containers or spouts may seek an innovative products exemption in accordance with the following criteria:

1. The board will exempt a portable fuel container or spout from one or more of the requirements specified in 9VAC5-45-190 if a manufacturer demonstrates by clear and convincing evidence that, due to some characteristic of the product formulation, design, delivery systems, or other factors, the use of the product will result in cumulative VOC emissions below the highest emitting representative spill-proof system or representative spill-proof spout in its product category as determined from applicable testing.

2. A manufacturer (applicant) shall apply in writing to the board for an innovative product exemption. The application shall include the supporting documentation that quantifies the emissions from the innovative product, including the actual physical test methods used to generate the data. In addition, the applicant must provide the information necessary to enable the board to establish enforceable conditions for granting the exemption. The application shall also include the certification statement required by 9VAC5-20-230 signed by a responsible official. Information submitted by a manufacturer pursuant to this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

3. Within 30 days of receipt of the exemption application, the board will determine whether an application is complete.

4. Within 90 days after an application has been deemed complete, the board will determine whether, under what conditions, and to what extent an exemption from the requirements of 9VAC5-45-190 will be permitted. The board may extend this time period if additional time is needed to reach a decision. An applicant may submit additional supporting documentation before a decision has been reached. The board will notify the applicant of the decision in writing and specify such terms and conditions as are necessary to insure that emissions from the product will meet the emissions reductions specified in subdivision 1 of this section, and that such emissions reductions can be enforced.

5. In granting an innovative product exemption for a portable fuel container or spout, the board will specify the test methods for determining conformance to the conditions established pursuant to subdivision 4 of this section. The test methods may include criteria for reproducibility, accuracy, and sampling and laboratory procedures.

6. For any portable fuel container or spout for which an innovative product exemption has been granted pursuant to this section, the manufacturer shall notify the board in writing at least 30 days before the manufacturer changes a product's design, delivery system, or other factors that may effect the VOC emissions during recommended usage. The manufacturer shall also notify the board within 30 days after the manufacturer learns of any information that would alter the emissions estimates submitted to the board in support of the exemption application.

7. If the standards specified in 9VAC5-45-190 are amended for a product category, all innovative product exemptions granted for products in the product category, except as provided in subdivision 8 of this subsection, have no force and effect as of the effective date of the amended standards.

8. If the board believes that a portable fuel container or spout for which an exemption has been granted no longer meets the criteria for an innovative product specified in subdivision 1 of this section, the board may modify or revoke the exemption as necessary to assure that the product will meet these criteria.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-220. Administrative requirements.

A. Each manufacturer of a portable fuel container subject to and complying with 9VAC5-45-190 shall clearly display on each spill-proof system:

1. The phrase "Spill-Proof System";

2. A date of manufacture or representative date code; and

3. A representative code identifying either:

a. The portable fuel container as subject to and complying with 9VAC5-45-190; or

b. The effective CARB certification executive order issued for the portable fuel container.

B. Each manufacturer of a spout subject to and complying with 9VAC5-45-190 shall clearly display on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto:

1. The phrase "Spill-Proof Spout";

2. A date of manufacture or representative date code; and

3. A representative code identifying either:

a. The spout as subject to and complying with 9VAC5-45-190; or

b. The effective CARB certification executive order issued for the spout.

C. Each manufacturer subject to subsection A or B of this section shall file an explanation of both the date code and representative code with the board no later than the later of three months after the effective date of this article or within three months of production, and within three months after any change in coding upon request of the board.

D. Each manufacturer of a spout subject to subsection B of this section shall clearly display the make, model number, and size of those portable fuel containers the spout is designed to accommodate and for which the manufacturer can demonstrate the container's compliance with 9VAC5-45-190 on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto.

E. Manufacturers of portable fuel containers not subject to or not in compliance with 9VAC5-45-190 may not display the phrase "Spill-Proof System" or "Spill-Proof Spout" on the portable fuel container or spout or on any sticker or label affixed thereto or on any accompanying package.

F. Each manufacturer of a portable fuel container or spout subject to and complying with 9VAC5-45-190 that due to its design or other features cannot be used to refuel on-road motor vehicles shall clearly display the phrase "Not Intended For Refueling On-Road Motor Vehicles" in type of 34 point or greater on each of the following:

1. For a portable fuel container sold as a spill-proof system, on the system or on a label affixed thereto, and on the accompanying package, if any; and

2. For a spill-proof spout sold separately from a spill-proof system, on either the spill-proof spout, or a label affixed thereto, and on the accompanying package, if any.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 40, Issue 14, eff. April 11, 2024.

9VAC5-45-230. Compliance.

The provisions of subsections B, D, F, and G of 9VAC5-45-20 (Compliance) apply. The other provisions of 9VAC5-45-20 do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-240. Compliance schedules.

A. Affected persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. August 1, 2010, in the Northern Virginia and Fredericksburg VOC Emissions Control Areas; or

2. March 1, 2014, in the Richmond VOC Emissions Control Area.