Part II. General Provisions
9VAC5-91-30. Applicability and authority of the department.
A. The provisions of this chapter, unless specified otherwise, apply to the following:
1. Any owner of an affected motor vehicle, including new motor vehicles, specified in subsection B of this section. References made to responsibilities or requirements applicable to an affected motor vehicle shall mean that the owner shall be responsible for compliance with all applicable provisions of this chapter.
2. Any owner of an emissions inspection station or fleet emissions inspection station under the auspices of the enhanced emissions inspection program. References made to responsibilities or requirements of emissions inspection stations or fleet emissions inspection stations shall mean that the owner, permittee or certificate holder, as appropriate, shall be responsible for compliance with all applicable provisions of this chapter.
3. Any person who conducts an emissions inspection under the auspices of the enhanced emissions inspection program.
4. Any owner of an emissions repair facility performing emissions repairs on motor vehicles affected by this chapter. References made to responsibilities or requirements of certified emissions repair facilities shall mean that the owner, permittee or certificate holder, as appropriate, shall be responsible for compliance with all applicable provisions of this chapter.
5. Any emissions repair technician performing emissions repairs on motor vehicles affected by this chapter.
6. Any on-road emissions inspector conducting on-road testing.
7. Any person or corporation that has entered into a contract with the director to provide services in accordance with this chapter.
B. The provisions of this chapter, unless specified otherwise, apply to the following affected motor vehicles:
1. Any affected motor vehicle, including new motor vehicles, registered by the Virginia Department of Motor Vehicles and garaged within the Northern Virginia program area.
2. Any affected motor vehicle, including new motor vehicles, registered by the Virginia Department of Motor Vehicles and garaged outside of the Northern Virginia program area but operated primarily in the Northern Virginia program area.
3. Any affected motor vehicle, including new motor vehicles not registered by the Department of Motor Vehicles but operated primarily in the Northern Virginia program area.
4. Any affected motor vehicle, including new motor vehicles owned or operated as part of a fleet located outside the Northern Virginia program area but operated primarily in the Northern Virginia program area.
C. As provided in the Virginia Motor Vehicle Emissions Control Law, affected motor vehicles shall be submitted for biennial emissions inspections and shall be in compliance with this chapter.
1. Motor vehicles having obtained a valid enhanced emissions inspection pass from another program area or another state within the most recent 12 months may be determined by the director to be in compliance with the enhanced emissions inspection required by this chapter for initial registration in Virginia. The valid period for such emissions inspection shall be one year. The proof of emissions inspection results from an enhanced emissions inspection program shall be presented to the Department of Motor Vehicles in such cases. The vehicle and proof of compliance may be presented to the department for verification purposes in order to resolve questions or disputes. Such vehicles are subject to all other provisions of this chapter.
2. The director may temporarily defer the emissions inspection requirement for motor vehicles registered in but temporarily located outside the program area at the time of such requirement based on information including, but not limited to, the location of the vehicle, the reason for and length of its temporary location, and demonstration that it is not practical or reasonable to return the vehicle to the program area for inspection. All such information shall be provided by the owner and is subject to verification by the department.
3. Clean screen vehicles may be determined by the director to be in compliance with the enhanced emissions inspection required by this chapter.
D. Motor vehicles being titled for the first time shall be considered to have an enhanced emissions inspection valid for four years from the month of the first titling unless identified by the remote sensing program as violating the emissions standards for that program. A vehicle manufactured for the current model year or any of the three immediately preceding model years shall be considered to have a valid emissions inspection unless identified by the remote sensing program as violating the emissions standards established for that program. Such vehicles are not exempt from the emissions inspection program and are subject to all other provisions of this chapter.
E. Pursuant to § 46.2-1180 B of the Motor Vehicle Emissions Control Law, motor vehicles of the current model year and the four immediately preceding model years, held for resale in a licensed motor vehicle dealer's inventory, may be registered for one year upon sale without obtaining an emissions inspection in accordance with conditions enumerated below.
1. The vehicle must be registered in the program area.
2. The vehicle has not failed nor received a waiver during its most recent emissions inspection.
3. The vehicle has not previously been registered under the provisions of this subsection.
4. The motor vehicle dealer guarantees in writing to the customer and to the department that the emissions equipment on the motor vehicle is operating in compliance with the warranty of the manufacturer or distributor, or both if applicable, at the time of sale.
a. The document supplied must describe the method by which this compliance was determined and provide a copy of any emissions readings obtained from the vehicle for the purpose of making this showing.
b. The document must state in prominent or bold print that the certification in no way warrants or guarantees that the vehicle complied with the emission standards used in the Virginia enhanced emissions inspection program, or similar language approved by the department and that the customer has a right to request an emissions inspection, which may be at the expense of the customer, in lieu of the one year emissions validation period authorized by this subsection.
5. A written request, including the documentation cited above, must be presented to the department not more than 30 days prior to the date of sale so that the department can record such temporary emissions validation period and furnish it to the Department of Motor Vehicles.
6. Such temporary validation period shall not be granted more than once for any motor vehicle.
7. For the purposes of this subsection, any used motor vehicle will be considered to be one model year old on the first day of October of the next calendar year after the model year described on the vehicle title or registration, and shall increase in age by one year on the first day of each October thereafter.
F. Owners or operators of fleets, including fleets of government vehicles and sensitive mission vehicles, shall provide a report to the department annually containing information regarding vehicles operated in the program area sufficient to determine compliance with this chapter. The report shall contain information deemed necessary by the department to determine compliance. Such information shall include, but not be limited to, (i) number of vehicles, (ii) compliance method, and (iii) results of any inspections. Reports shall be in a format and according to a schedule acceptable to the department.
G. Manufacturers and distributors of emissions testing equipment are prohibited from directly or indirectly owning or operating any emissions testing facility or having any direct or indirect financial interest in any such facility other than the leasing of or providing financing for equipment related to emissions testing.
H. The provisions of this chapter, unless specified otherwise, apply only to those pollutants for which emission standards are set forth in Part III (9VAC5-91-160 et seq.) and Part XIV (9VAC5-91-790 et seq.).
I. Applicants for inspection station permits and emissions repair facility certificates shall have a Virginia business license and the application shall only be for a facility in Virginia.
J. By the adoption of this chapter, the board confers upon the department the administrative, enforcement and decision making authority enumerated herein.
Statutory Authority
§ 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 29, Issue 9, eff. December 15, 2012; Volume 29, Issue 24, eff. August 28, 2013; Volume 31, Issue 23, eff. August 12, 2015.
9VAC5-91-40. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.
9VAC5-91-41. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 14, Issue 3, eff. January 1, 1998; repealed, Virginia Register Volume 18, Issue 20, eff. October 1, 2002.
9VAC5-91-50. Documents incorporated by reference.
A. The Administrative Process Act and Virginia Register Act provide that state regulations may incorporate documents by reference. Throughout this chapter, documents of the types specified below have been incorporated by reference.
1. United States Code.
2. Code of Virginia.
3. Code of Federal Regulations.
4. Federal Register.
5. Technical and scientific reference documents.
Additional information on key federal regulations and nonstatutory documents incorporated by reference and their availability may be found in subsection E of this section.
B. Any reference in this chapter to any provision of the Code of Federal Regulations (CFR) shall be considered as the adoption by reference of that provision. The specific version of the provision adopted by reference shall be that contained in the latest revision to the CFR in effect on July 1, 2018, unless noted otherwise. In making reference to the Code of Federal Regulations, 40 CFR Part 35 means Part 35 of Title 40 of the Code of Federal Regulations; 40 CFR 35.20 means § 35.20 in Part 35 of Title 40 of the Code of Federal Regulations.
C. Failure to include in this section any document referenced in this chapter shall not invalidate the applicability of the referenced document.
D. Copies of materials incorporated by reference in this section may be examined by the public at the central office of the Department of Environmental Quality, Air Division, 1111 East Main Street, Suite 1400, Richmond, Virginia, between 8:30 a.m. and 4:30 p.m. of each business day.
E. Information on federal regulations and nonstatutory documents incorporated by reference and their availability may be found below in this subsection.
1. Code of Federal Regulations.
a. The provisions specified below from the Code of Federal Regulations (CFR) are incorporated herein by reference:
(1) 40 CFR Part 51 - Requirements for Preparation, Adoption and Submittal of Implementation Plans, specifically Subpart S (Inspection and Maintenance Program Requirements).
(2) 40 CFR Part 85 - Control of Air Pollution from Mobile Sources, specifically Subpart W (Emission Control System Performance Warranty Short Tests).
b. Copies may be obtained from: Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402; phone (202) 783‑3238.
2. Environmental Protection Agency, Motor Vehicle Emissions Laboratory.
a. The following document is incorporated herein by reference: Environmental Protection Agency technical report, "EPA Recommended Practice for Naming I/M Calibration Gas," EPA-AA-TSS-83‑8‑B, September 1983.
b. The following document is incorporated herein by reference: Environmental Protection Agency technical guidance, Acceleration Simulation Mode Test Procedures, Emission Standards, Quality Control Requirements, and Equipment Specifications," EPA420-B-04‑011, July 2004.
c. Copies may be obtained from: Environmental Protection Agency, Office of Transportation and Air Quality, 2000 Traverwood, Ann Arbor, MI 48105.
3. Building Officials & Code Administrators International, Inc.
a. The following document is incorporated herein by reference: The BOCA National Mechanical Code/1993, Eighth Edition.
b. Copies may be obtained from: Building Officials & Code Administrators International, Inc., 4051 West Flossmoor Road, Country Club Hills, Illinois 60478-5795.
Statutory Authority
§ 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 29, Issue 24, eff. August 28, 2013; Volume 34, Issue 13, eff. February 19, 2018; Volume 35, Issue 5, eff. November 28, 2018.
9VAC5-91-60. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.
9VAC5-91-70. Appeal of case decisions.
A. Any owner, emissions inspector, emissions repair technician, or other party significantly affected by any action of the director or the department taken without a formal hearing may request a formal hearing in accordance with § 2.2-4020 of the Administrative Process Act, provided a formal hearing has not been waived and a petition requesting such formal hearing is filed with the director within 30 days after notice of the action is mailed, by postal or electronic delivery, or delivered to such owner, emissions inspector, emissions repair technician, or party requesting notification of such action.
B. In cases where the director or the department fails to make a case decision within the time frame specified by § 2.2-4021, the owner, emissions inspector, emissions repair technician, or other party significantly affected, may provide written notice to the director that a decision is due in accordance with § 2.2-4021 of the Administrative Process Act. Appeals thereafter shall be in accordance with the Administrative Process Act.
C. Prior to any formal hearing, an informal fact finding shall be held pursuant to § 2.2-4019 of the Administrative Process Act, unless the named party and the director consent to waive the informal fact finding and go directly to a formal hearing.
D. Any decision of the director resulting from a formal hearing or from an informal fact finding wherein the parties have agreed to waive a formal hearing shall constitute the final decision for purposes of Article V (§ 2.2-4025 et seq.) of the Administrative Process Act.
E. Judicial review of any final decision shall be in accordance with Article V (§ 2.2-4025 et seq.) of the Administrative Process Act.
F. Nothing in this section shall prevent disposition of any case by consent.
G. Any petition for a formal hearing or any notice or petition for an appeal by itself shall not constitute a stay of decision or action.
Statutory Authority
§ 46.2-1180 of the Code of Virginia; § 182 of the Clean Air Act; 40 CFR Part 51, Subpart S.
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002; Volume 29, Issue 24, eff. August 28, 2013.
9VAC5-91-80. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.
9VAC5-91-90. Right of entry.
Whenever it is necessary for the purposes of this chapter, the department may enter, at reasonable times, any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys, audits or investigations as authorized by § 46.2-1187.1 of the Virginia Motor Vehicle Emissions Control Law.
Statutory Authority
§§ 46.2-1178.1, 46.2-1179, 46.2-1180, and 46.2-1187.2 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997.
9VAC5-91-100. Conditions on approvals.
A. The director may impose conditions upon permits, licenses, certifications and other approvals issued pursuant to this chapter, (i) which may be necessary to carry out the Virginia Motor Vehicle Emissions Control Law and (ii) which are consistent with this chapter. Except as specified herein, nothing in this chapter shall be understood to limit the power of the department in this regard.
B. A license, permit, or certification applicant may consider any condition imposed by the director as a denial of the requested permit, license, certification or other approval, which shall entitle the applicant to appeal the decision pursuant to 9VAC5-91-70.
C. The existence of a permit, license or certification under this chapter shall not constitute a defense to a violation of the Virginia Air Pollution Control Law, the Virginia Motor Vehicle Emissions Control Law or this chapter and shall not relieve any owner of the responsibility to comply with any applicable regulations, laws, ordinances and orders of any governmental entities having jurisdiction.
Statutory Authority
§§ 46.2-1178.1, 46.2-1179, 46.2-1180, and 46.2-1187.2 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997.
9VAC5-91-110. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; repealed, Virginia Register Volume 14, Issue 3, eff. January 1, 1998.
9VAC5-91-120. Export and import of motor vehicles.
A. The catalyst and fuel filler inlet restrictor may be removed from, installed or reinstalled on used motor vehicles scheduled for shipment to or from a foreign country provided that:
1. The export or import of the motor vehicle meets the provisions of subsection B of this section; and
2. The removal of the emissions control equipment does not take place prior to 10 days before the vehicle is turned over to the port authorities and the reinstallation of the emissions control equipment takes place within 10 days after receipt of the vehicle by the motor vehicle owner from the port authorities in the United States if such equipment is required for the vehicle configuration.
B. To be exempted under the provisions of subsection A of this section, the motor vehicle must:
1. Be exported or imported under a U.S. Environmental Protection Agency approved catalyst control program;
2. Be exported or imported under a Department of Defense privately owned vehicle import control program; or
3. Be entered through U.S. Customs under cash bond and formal entry procedures, (19 CFR Part 12—Special classes of merchandise) and be modified to bring it into conformity with applicable federal motor vehicle emission standards (40 CFR Part 86—Control of air pollution from new motor vehicle engines: Certification and test procedures).
C. Nonconforming vehicles may be granted an exemption from the emissions inspection requirement upon (i) submittal and subsequent verification, at the department's discretion, of nonconformity documentation, or (ii) department observation of the vehicle that verifies its status as a nonconforming vehicle.
Statutory Authority
§ 46.2-1180 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002.
9VAC5-91-130. Relationship of state regulations to federal regulations.
A. In order for the Commonwealth to fulfill its obligations under the federal Clean Air Act, some provisions of this chapter are required to be approved by the U.S. Environmental Protection Agency and when approved those provisions become federally enforceable.
B. In cases where this chapter specifies that procedures or methods shall be approved by, acceptable to or determined by the director or the department or specifically provides for decisions to be made by the director or the department, it may be necessary to have such actions (approvals, determinations, exemptions, exclusions, or decisions) reviewed and confirmed as acceptable or approved by the U.S. Environmental Protection Agency in order to make them federally enforceable. Determination of which state actions require federal confirmation or approval and the administrative mechanism for making associated confirmation or approval decisions shall be made on a case-by-case basis in accordance with U.S. Environmental Protection Agency regulations and policy.
Statutory Authority
§§ 46.2-1178.1, 46.2-1179, 46.2-1180, and 46.2-1187.2 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997.
9VAC5-91-140. Delegation of authority.
In accordance with the Motor Vehicle Emissions Control Law, the director, or a designee acting for him, may perform any act provided under this chapter.
Statutory Authority
§§ 46.2-1178.1, 46.2-1179, 46.2-1180, and 46.2-1187.2 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997.
9VAC5-91-150. Availability of information.
A. Emissions data in the possession of the department shall be available to the public without exception.
B. Any other records, reports or information in the possession of the department shall be available to the public with the following exception:
The department shall consider such records, reports or information, or particular part thereof, confidential in accordance with the Virginia Uniform Trade Secrets Act (§ 59.1-336 et seq. of the Code of Virginia) upon a showing satisfactory to the department by any station owner that such records, reports or information, or particular part thereof, meet the criteria in subsection C of this section and the station owner provides a certification to that effect signed by a responsible person for such owner. Such records, reports or information, or particular part thereof, may be disclosed, however, to other officers, employees or authorized representatives of the Commonwealth of Virginia and the U.S. Environmental Protection Agency concerned with carrying out the provisions of the Motor Vehicle Emissions Control Law and the federal Clean Air Act.
C. In order to be exempt from disclosure to the public under subsection B of this section, the information must satisfy the following criteria:
1. Information for which the station owner has been taking and will continue to take measures to protect confidentiality;
2. Information that has not been and is not presently reasonably obtainable without the consent of the station owner or motor vehicle owner by private citizens or other firms through legitimate means other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding;
3. Information which is not publicly available from sources other than the station owner; and
4. Information the disclosure of which would cause substantial harm to the station owner.
Statutory Authority
§§ 46.2-1178.1, 46.2-1179, 46.2-1180, and 46.2-1187.2 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 5, eff. January 24, 1997.