Administrative Code

Virginia Administrative Code
2/5/2023

Part VI. Variances, Ordinances, and Approvals

9VAC5-170-140. Variances.

A. Pursuant to § 10.1-1307 C of the Virginia Air Pollution Control Law, the department may grant local variances to a provision of the regulations of the board after an investigation and public hearing; except that no local variances shall be granted from regulations adopted by the board pursuant to § 10.1-1308 of the Code of Virginia related to the requirements of § 10.1-1308 E of the Code of Virginia or Article 4 (§ 10.1-1329 et seq.) of Chapter 13 of Title 10.1 of the Code of Virginia. If a local variance is appropriate, the department shall issue an order to this effect. The order shall be subject to amendment or revocation at any time.

B. The department shall adopt variances and amend or revoke variances if warranted only after conducting a public hearing pursuant to public advertisement in at least one major newspaper of general circulation in the affected area of the subject, date, time, and place of the public hearing at least 30 days prior to the scheduled hearing.

C. The public participation procedures of § 10.1-1307.01 of the Virginia Air Pollution Control Law shall be followed in the consideration of variances.

D. Notwithstanding the requirements of subsection B of this section, if the department finds that there is a locality particularly affected by a variance involving (i) a new fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (ii) a major modification to an existing source that is a fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iii) a new fossil fuel-fired compressor station facility used to transport natural gas, or (iv) a major modification to an existing source that is a fossil fuel-fired compressor station facility used to transport natural gas:

1. The applicant shall perform the following:

a. Publish a notice in at least one local paper of general circulation in any locality particularly affected at least 60 days prior to the close of any public comment period. Such notice shall (i) contain a statement of the estimated local impact of the proposed action; (ii) provide information regarding specific pollutants and the total quantity of each that may be emitted; (iii) list the type, quantity, and source of any fuel to be used; (iv) advise the public as to the date and location of a public hearing; and (v) advise the public where to obtain information regarding the proposed action. The department shall post such notice on the department website and on a department social media account; and

b. Mail the notice to (i) the chief elected official of, chief administrative officer of, and planning district commission for each locality particularly affected; (ii) every public library and public school located within five miles of such facility; and (iii) the owner of each parcel of real property that is depicted as adjacent to the facility on the current real estate tax assessment maps of the locality.

2. The department shall post the notice required in subdivision 1 a of this subsection on the department website and on a department social media account.

3. Written comments shall be accepted by the department for at least 30 days after any hearing on such variance or permit, unless the director chooses to shorten the period.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 37, Issue 4, eff. November 11, 2020; Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-150. Local ordinances.

A. Local ordinances shall be established and approved as follows:

1. The governing body of any locality proposing to adopt an ordinance, or an amendment to an existing ordinance, relating to air pollution shall first obtain the approval of the department as to the provisions of the ordinance or amendment. Except for an ordinance or amendment pertaining solely to open burning, the department shall not approve an ordinance or amendment which regulates an emission source that is required to register with the department or to obtain a permit pursuant to Virginia Air Pollution Control Law and the regulations of the board. The department in approving local ordinances will consider, but will not be limited to, the following criteria:

a. The local ordinance shall provide for intergovernmental cooperation and exchange of information.

b. Adequate local resources will be committed to enforcing the proposed local ordinance.

c. The provisions of the local ordinance shall be as strict as state regulations, except as provided for leaf burning in § 10.1-1308 of the Virginia Air Pollution Control Law.

2. Approval of a local ordinance shall be withdrawn if the department determines that the local ordinance is less strict than state regulations, or if the locality fails to enforce the ordinance.

3. If a local ordinance must be amended to conform to an amendment to state regulations, the local amendment will be made within six months. If the necessary amendment is not made within six months, the department may rescind its approval of the ordinance.

B. Local ordinances shall provide for reporting information required by the department to fulfill its responsibilities under the Virginia Air Pollution Control Law and the federal Clean Air Act. Reports shall include, but are not limited to monitoring data, surveillance programs, procedures for investigation of complaints, variance hearings, and status of control programs and permits.

C. Local ordinances are a supplement to state regulations. Provisions of local ordinances which have been approved by the department and are more strict than state regulations shall take precedence over state regulations within the respective locality. It is the intention of the department to coordinate activities among the enforcement officers of the various localities in the enforcement of local ordinances and state regulations. The department will also provide technical and other assistance to local authorities in the investigation and study of air pollution problems, and in the enforcement of local ordinances and state regulations. The department emphasizes its intention to assist in the local enforcement of local ordinances. If a locality fails to enforce its own ordinance, the department reserves the right to enforce state regulations.

D. A local governing body may grant a variance to a provision of its air pollution control ordinance provided that:

1. A public hearing is held by the locality prior to granting the variance;

2. The public is notified of the application for a variance by advertisement in at least one major newspaper of general circulation in the affected locality and a major newspaper of general circulation in the state capital area at least 30 days prior to the date of the public hearing by the locality; and

3. The variance does not permit an owner or other person to take action that would result in a violation of a provision of state regulations unless a variance is granted by the department. The local public hearing required for the variances to the local ordinance and the public hearing required under state regulations may be conducted jointly as one proceeding.

E. This section shall not apply to the approval of local ordinances concerning open burning established pursuant to 9VAC5-40-5640 D.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; Errata, 14:7 VA.R. 1175 December 22, 1997; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-160. Conditions on approvals.

A. The department may impose conditions upon permits and other approvals which may be necessary to carry out the policy of the Virginia Air Pollution Control Law, and which are consistent with the regulations of the board. Except as otherwise specified, nothing in this chapter shall be understood to limit the power of the department in this regard. If the owner or other person fails to adhere to the conditions, the department may automatically cancel the permit or approvals. This section shall apply, but not be limited, to approval of variances, approval of control programs, and granting of permits.

B. An owner may consider a condition imposed by the department as a denial of the requested approval or permit, which shall entitle the applicant to appeal the decision of the department pursuant to 9VAC5-170-200.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC5-170-170. Considerations for approval actions.

Pursuant to the provisions of § 10.1-1307 E of the Virginia Air Pollution Control Law, the board in making regulations and the department in approving variances, control programs, or permits, shall consider facts and circumstances relevant to the reasonableness of the activity involved and the regulations proposed to control it, including:

1. The character and degree of injury to, or interference with safety, health, or the reasonable use of property which is caused or threatened to be caused;

2. The social and economic value of the activity involved;

3. The suitability of the activity to the area in which it is located, except that consideration of this factor shall be satisfied if the local governing body of a locality in which a facility or activity is proposed has resolved that the location and operation of the proposed facility or activity is suitable to the area in which it is located; and

4. The scientific and economic practicality of reducing or eliminating the discharge resulting from the activity.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

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