Part I. Certain Permit Actions Before the Department
9VAC5-80-5. Definitions.
A. For the purpose of applying this chapter 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. Unless otherwise required by context, all terms not defined herein shall have the meaning given them in 9VAC5-170 (Regulation for General Administration), 9VAC5-10 (General Definitions), or commonly ascribed to them by recognized authorities, in that order of priority.
C. Terms defined.
"Applicable federal requirement" means all of, but not limited to, the following as they apply to affected emissions units subject to this chapter (including requirements that have been promulgated or approved by the administrator through rulemaking at the time of permit issuance but have future-effective compliance dates):
1. Any standard or other requirement provided for in an implementation plan established pursuant to § 110, 111(d) or 129 of the federal Clean Air Act, including any source-specific provisions such as consent agreements or orders.
2. Any term or condition in any construction permit issued under the new source review program or in any operating permit issued pursuant to the state operating permit program. However, those terms or conditions designated as state-only enforceable shall not be applicable federal requirements.
3. Any emission standard, alternative emission standard, alternative emissions limitation, equivalent emissions limitation or other requirement established pursuant to § 112 or 129 of the federal Clean Air Act as amended in 1990.
4. Any new source performance standard or other requirement established pursuant to § 111 of the federal Clean Air Act, and any emission standard or other requirement established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.
5. Any limitations and conditions or other requirement in a Virginia regulation or program that has been approved by EPA under Subpart E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112 of the federal Clean Air Act.
6. Any requirement concerning accident prevention under § 112(r)(7) of the federal Clean Air Act.
7. Any compliance monitoring requirements established pursuant to either § 504(b) or § 114(a)(3) of the federal Clean Air Act.
8. Any standard or other requirement for consumer and commercial products under § 183(e) of the federal Clean Air Act.
9. Any standard or other requirement for tank vessels under § 183(f) of the federal Clean Air Act.
10. Any standard or other requirement in 40 CFR Part 55 to control air pollution from outer continental shelf sources.
11. Any standard or other requirement of the regulations promulgated to protect stratospheric ozone under Title VI of the federal Clean Air Act, unless the administrator has determined that such requirements need not be contained in a federal operating permit.
12. With regard to temporary sources subject to 9VAC5-80-130, (i) any ambient air quality standard, except applicable state requirements, and (ii) requirements regarding increments or visibility as provided in Article 8 (9VAC5-80-1605 et seq.) of Part II of this chapter.
13. Any standard or other requirement under § 126(a)(1) and (c) of the federal Clean Air Act.
"Controversial permit" means an air permitting action for which a public hearing has been granted pursuant 9VAC5-80-35. "Controversial permit" also means an air permitting action where a public hearing is required for (i) the construction of a new major source or for a major modification to an existing source, (ii) a new fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iii) a major modification to an existing source that is a fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iv) a new fossil fuel-fired compressor station facility used to transport natural gas, or (v) a major modification to an existing source that is a fossil fuel-fired compressor station facility used to transport natural gas.
"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 emissions limitations, and equivalent emissions limitations established pursuant to § 112 of the federal Clean Air Act as amended in 1990.
2. New source performance standards established pursuant to § 111 of the federal Clean Air Act, and emission standards established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.
3. All terms and conditions (unless expressly designated as state-only enforceable) in a federal operating permit, including any provisions that limit a source's potential to emit.
4. Limitations and conditions that are part of an implementation plan established pursuant to § 110, 111(d) or 129 of the federal Clean Air Act.
5. Limitations and conditions (unless expressly designated as state-only enforceable) that are part of a federal construction permit issued under 40 CFR 52.21 or any construction permit issued under regulations approved by EPA into the implementation plan.
6. Limitations and conditions (unless expressly designated as state-only enforceable) that are part of a state operating permit where the permit and the permit program pursuant to which it was issued meet all of the following criteria:
a. The operating permit program has been approved by EPA into the implementation plan under § 110 of the federal Clean Air Act.
b. The operating permit program 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 emissions 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 implementation plan or enforceable under the implementation plan, 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 implementation plan, 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.
e. The permit in question was issued only after adequate and timely notice and opportunity for comment by EPA and the public.
7. Limitations and conditions in a regulation of the board or program that has been approved by EPA under Subpart E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112 of the federal Clean Air Act.
8. Individual consent agreements that EPA has legal authority to create.
"Federal hazardous air pollutant new source review (NSR) program" means a program for the preconstruction review and approval of the construction, reconstruction or modification of any stationary source in accordance with regulations specified in subdivisions 1 through 3 of this definition and promulgated to implement the requirements of § 112 (relating to hazardous air pollutants) of the federal Clean Air Act. Any permit issued under this program is a major NSR permit.
1. The provisions of 40 CFR 61.05, 40 CFR 61.06, 40 CFR 61.07, 40 CFR 61.08 and 40 CFR 61.15 for issuing approvals of the construction of any new source or modification of any existing source subject to the provisions of 40 CFR Part 61.
2. The provisions of 40 CFR 63.5 for issuing approvals to construct a new source or reconstruct a source subject to the provisions of 40 CFR Part 63, except for Subparts B, D and E.
3. The provisions of 40 CFR 63.50 through 40 CFR 63.56 for issuing Notices of MACT Approval prior to the construction of a new emissions unit.
"Federal hazardous air pollutant new source review (NSR) permit" means a permit issued under the federal hazardous air pollutant new source review program.
"Federal operating permit" means a permit issued under the federal operating permit program.
"Federal operating permit program" means an operating permit system (i) for issuing terms and conditions for major stationary sources, (ii) established to implement the requirements of Title V of the federal Clean Air Act and associated regulations, and (iii) 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 this chapter.
"Major new source review (NSR) permit" means a permit issued under the major new source review program.
"Major new source review (major NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of §§ 112, 165 and 173 of the federal Clean Air Act and associated regulations, and (iii) codified in 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 this chapter.
"Minor new source review (NSR) permit" means a permit issued under the minor new source review program.
"Minor new source review (minor NSR) program" means a preconstruction review and permit program (i) for regulated air pollutants from new stationary sources or projects that are not subject to review under the major new source review program, (ii) established to implement the requirements of §§ 110(a)(2)(C) and 112 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 6 (9VAC5-80-1100 et seq.) of Part II of this chapter. The minor NSR program may also be used to implement the terms and conditions designated as state-only enforceable; however, those terms and conditions shall not be applicable federal requirements.
"New source review (NSR) permit" means a permit issued under the new source review program.
"New source review (NSR) program" means a preconstruction review and permit program (i) for regulated air pollutants from new stationary sources or projects (physical changes or changes in the method of operation), (ii) established 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 and associated regulations, and (iii) 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 this chapter. The NSR program may also be used to implement the terms and conditions designated as state-only enforceable; however, those terms and conditions shall not be applicable federal requirements.
"Nonattainment major new source review (NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of § 173 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 9 (9VAC5-80-2000 et seq.) of Part II of this chapter. Any permit issued under this program is a major NSR permit.
"Nonattainment major new source review (NSR) permit" means a permit issued under the nonattainment major new source review program.
"Permit action" means the activities associated with, and preliminary to, a decision of the department to approve, approve with conditions, or disapprove permit applications; actions to amend or modify permit terms or conditions; actions to renew, reopen, invalidate, suspend, revoke or enforce permit terms or conditions. The term "permit action" does not include actions to combine permit terms and conditions, provided there are no changes to any permit term or condition.
"Prevention of Significant Deterioration (PSD) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation), (ii) established to implement the requirements of § 165 of the federal Clean Air Act and associated regulations, and (iii) codified in Article 8 (9VAC5-80-1605 et seq.) of Part II of this chapter. Any permit issued under this program is a major NSR permit.
"Prevention of Significant Deterioration permit" means a permit issued under the Prevention of Significant Deterioration program.
"Public comment period" means a time during which the public shall have the opportunity to comment on the permit application information (exclusive of confidential information) for a new stationary source or project, the preliminary review and analysis of the effect of the source upon the ambient air quality, and the preliminary decision of the department regarding the permit application.
"Public hearing" means, unless indicated otherwise, an informal proceeding, similar to that provided for in § 2.2-4007 of the Administrative Process Act, held to afford people an opportunity to submit views and data relative to a matter on which a decision of the department is pending.
"Public participation process" means any element of a department decision-making process that provides an opportunity to submit views and data relative to a matter on which a decision of the department is pending.
"State operating permit" means a permit issued under the state operating permit program.
"State operating permit program" means an operating permit program (i) for issuing limitations and conditions for stationary sources, (ii) promulgated to meet 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, and (iii) codified in Article 5 (9VAC5-80-800 et seq.) of Part II of this chapter.
Statutory Authority
§ 10.1-1308 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 25, Issue 6, eff. December 31, 2008; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.
9VAC5-80-10. (Repealed.)
Historical Notes
Derived from VR120-08-01, eff. January 1, 1993, and Virginia Register Volume 13, Issue 18, eff. July 1, 1997; amended, Virginia Register Volume 18, Issue 7, eff. February 1, 2002; repealed, Virginia Register Volume 18, Issue 20, eff. September 1, 2002.
9VAC5-80-15. Applicability.
A. The provisions of this part, unless specified otherwise, shall apply to only permit actions subject to a public comment period.
B. The provisions of this part do not apply to the appeal of the promulgation of regulations. Appeals of the promulgation of regulations shall be pursued under § 10.1-1317 of the Virginia Air Pollution Control Law and § 2.2-4026 of the Administrative Process Act.
C. The provisions of this part do not apply to the appeal of case decisions and other actions or inactions of the board or the department.
Statutory Authority
§ 10.1-1308 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 25, Issue 6, eff. December 31, 2008; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.
9VAC5-80-20. (Repealed.)
Historical Notes
Derived from VR120-08-02, eff. July 1, 1988; amended, Virginia Register Volume 7, Issue 20, eff. August 1, 1991; Volume 9, Issue 3, eff. January 1, 1993; Volume 9, Issue 22, eff. September 1, 1993; repealed, Virginia Register Volume 13, Issue 5, eff. January 1, 1997.
9VAC5-80-25. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 25, Issue 6, eff. December 31, 2008; amended, Virginia Register Volume 26, Issue 3, eff. November 12, 2009; repealed, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.
9VAC5-80-30. (Repealed.)
Historical Notes
Derived from VR120-08-03, eff. January 1, 1993; repealed, Virginia Register Volume 15, Issue 11, eff. April 1, 1999.
9VAC5-80-35. Public hearings for controversial permits.
A. During the public comment period on a permit action, in those instances where a public hearing is not mandatory under state or federal law or regulation, interested persons may request a public hearing to contest such action or the terms and conditions thereof. The public participation process requirements for the permit programs subject to this section are specified in subdivisions 1 and 2 of this subsection.
1. 9VAC5-80-270 and 9VAC5-80-670 for the federal (Title V) operating permit program.
2. 9VAC5-80-1020 for the state operating permit program.
B. Requests for a public hearing shall contain the following information:
1. The name and postal mailing or email address of the requester;
2. The names and addresses of all persons for whom the requester is acting as a representative; for the purposes of this requirement, a "person" includes an unincorporated association;
3. The reason for the request for a public hearing;
4. A brief, informal statement setting forth the factual nature and the extent of the interest of the requester or of the persons for whom the requester is acting as representative in the application or tentative determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial, amendment, modification, or revocation of the permit in question; and
5. Where possible, specific references to the terms and conditions of the permit in question, together with suggested revisions and alterations of those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the Virginia Air Pollution Control Law.
C. Upon completion of the public comment period on a permit action in accordance with subsection A of this section, the director shall review all timely requests for public hearing filed during the public comment period on the permit action and within 30 calendar days following the expiration of the time period for the submission of requests shall grant a public hearing, unless the permittee or applicant agrees to a later date, if the director finds the following:
1. That there is a significant public interest in the issuance, denial, amendment, modification, or revocation of the permit in question as evidenced by receipt of a minimum of 25 individual requests for a public hearing;
2. That the requesters raise substantial, disputed issues relevant to the issuance, denial, amendment, modification, or revocation of the permit in question; and
3. That the action requested by the interested party is not on its face inconsistent with, or in violation of, the Virginia Air Pollution Control Law, federal law or any regulation promulgated thereunder.
D. The director shall, forthwith, notify by email or postal mail at his last known address (i) each requester and (ii) the applicant or permittee of the decision to grant or deny a public hearing.
E. In addition to subsections C and D of this section, the director may, in the director's discretion, convene a public hearing on a permit action.
F. If the request for a public hearing is granted, the director shall schedule the hearing at a time between 45 and 75 days after emailing or mailing the notice of the decision to grant the public hearing.
G. The director shall cause, or require the applicant to publish, notice of a public hearing to be published once, in a newspaper of general circulation in the city or county where the facility or operation that is the subject of the permit or permit application is located, at least 30 days before the hearing date.
Statutory Authority
§ 10.1-1308 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 25, Issue 6, eff. December 31, 2008; amended, Virginia Register Volume 26, Issue 3, eff. November 12, 2009; Volume 39, Issue 5, eff. November 23, 2022.
9VAC5-80-37. Notification of pending controversial permits by the department to the board.
At each regular meeting of the board, the department will provide an overview and update regarding any controversial permits pending before the department. Immediately after such presentation by the department, the board will have an opportunity to respond to the department's presentation and provide commentary regarding such pending permits.
Statutory Authority
§ 10.1-1308 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.
9VAC5-80-40. (Repealed.)
Historical Notes
Derived from VR120-08-04, eff. July 1, 1991; repealed, Virginia Register Volume 14, Issue 11, eff. April 1, 1998.
9VAC5-80-45. Additional public hearing for controversial permits.
A. Before rendering a final decision on a controversial permit, the department shall hold an additional public hearing in accordance with subdivisions 1 through 3 of this subsection except as provided in subdivision 4 of this subsection:
1. Publish a summary of public comments received during the applicable public comment period and public hearing.
2. Publish responses to the public comment summary.
3. Hold a public hearing for the controversial permit for individuals who previously commented, either at a public hearing or in writing during the applicable public comment period, to respond to the department's public comment summary and response. No new information will be accepted at this public hearing for controversial permits.
4. Subdivisions 1 through 3 of this subsection shall not apply to controversial permits where no public comments were received at a public hearing or in writing during the applicable public comment period. These actions shall proceed with a final determination in accordance with the subsection B of this section and the applicable permit program regulations.
B. In making its decision, the department shall consider (i) the verbal and written comments received during the public comment period and public hearing made part of the record, (ii) comments made at the additional public hearing held to address the department's summary of comments as provided in subsection A of this section, (iii) commentary of the board, and (iv) the agency files.
Statutory Authority
§ 10.1-1308 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.