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Code of Virginia
Title 10.1. Conservation
Chapter 13. Air Pollution Control Board
11/27/2020

Chapter 13. Air Pollution Control Board.

Article 1. General Provisions.

§ 10.1-1300. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Advisory Board" means the State Advisory Board on Air Pollution.

"Air pollution" means the presence in the outdoor atmosphere of one or more substances which are or may be harmful or injurious to human health, welfare or safety, to animal or plant life, or to property, or which unreasonably interfere with the enjoyment by the people of life or property.

"Board" means the State Air Pollution Control Board.

"Department" means the Department of Environmental Quality.

"Director" or "Executive Director" means the Executive Director of the Department of Environmental Quality.

"Owner" shall have no connotation other than that customarily assigned to the term "person," but shall include bodies politic and corporate, associations, partnerships, personal representatives, trustees and committees, as well as individuals.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or any other legal entity.

"Special order" means a special order issued under § 10.1-1309.

"Wood heater" means a wood stove, pellet stove, wood-fired hydronic heater, wood-burning forced-air furnace, or masonry wood heater, any of which is solely designed for heating a home or a business and with either (i) uncontrolled fine particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers (PM2.5) emissions of less than 10 tons per year or with a maximum heat input of less than 1,000,000 Btu/hr or (ii) uncontrolled fine particulate matter with an aerodynamic diameter less than or equal to 10 micrometers (PM10) emissions of less than 15 tons per year or with a maximum heat input of less than 1,000,000 Btu/hr.

1966, c. 497, § 10-17.10; 1968, c. 311; 1970, c. 469; 1971, Ex. Sess., c. 91; 1972, c. 781; 1985, c. 448; 1988, c. 891; 1990, c. 238; 1991, c. 702; 2004, c. 408; 2015, c. 471.

§ 10.1-1300.1. Certified mail; subsequent mail or notices may be sent by regular mail.

Whenever in this chapter the Board, the Department, or the Director is required to send any mail or notice by certified mail and such mail or notice is sent certified mail, return receipt requested, then any subsequent, identical mail or notice that is sent by the Board, the Department, or the Director may be sent by regular mail.

2011, c. 566.

§ 10.1-1301. State Air Pollution Control Board; membership; terms; vacancies.

The State Air Pollution Control Board shall be composed of seven members appointed by the Governor for four-year terms. Vacancies other than by expiration of term shall be filled by the Governor by appointment for the unexpired term.

1966, c. 497, § 10-17.11; 1988, c. 891; 2008, cc. 276, 557.

§ 10.1-1302. Qualifications of members of Board.

The members of the Board shall be citizens of the Commonwealth and shall be selected from the Commonwealth at large on the basis of merit without regard to political affiliation. Members shall, by their education, training, or experience, be knowledgeable of air quality control and regulation, and shall be fairly representative of conservation, public health, business, and agriculture. No person appointed to the Board shall be employed by persons subject to permits or enforcement orders of the Board or receive a significant portion of his income, whether directly or indirectly, from persons subject to permits or enforcement orders of the Board. Income from a vested retirement benefit shall not be considered income for purposes of this section. Notwithstanding any other provision of this section relating to Board membership, the qualifications for Board membership shall not be more strict than those that are required by federal statute or regulations of the United States Environmental Protection Agency. The provisions of this section shall be in addition to the requirements of the State and Local Government Conflict of Interests Act (§ 2.2-3100 et seq.).

1966, c. 497, § 10-17.12; 1979, c. 117; 1987, Sp. Sess., c. 1; 1988, c. 891; 1992, c. 675; 1994, c. 461; 2008, cc. 276, 557.

§ 10.1-1303. Chairman of the Board; Executive Director; cooperation of state agencies.

The Board shall elect its own chairman. The Governor shall appoint an Executive Director who shall serve as executive officer of the Board, but shall not serve as a member thereof. The Board may call upon any state department or agency for technical assistance. All departments and agencies of the Commonwealth shall, upon request, assist the Board in the performance of its duties.

1966, c. 497, § 10-17.14; 1972, c. 781; 1984, c. 444; 1985, c. 397; 1988, c. 891; 1990, c. 238.

§ 10.1-1304. Meetings of Board; quorum.

The Board shall meet at least four times a year. Special meetings may be held at any time or place to be determined by the Board upon the call of the chairman or upon written request of any two members. All members shall be notified of the time and place of any meeting at least five days in advance of the meeting. A majority of the members of the Board shall constitute a quorum for the transaction of business.

1966, c. 497, § 10-17.15; 1988, c. 891; 2008, cc. 276, 557.

§ 10.1-1305. Records of proceedings of Board.

The Board shall keep a complete and accurate record of the proceedings at all its meetings, a copy of which shall be kept on file in the office of the Director and available for public inspection.

1966, c. 497, § 10-17.16; 1977, c. 31; 1988, cc. 26, 891.

§ 10.1-1306. Inspections, investigations, etc.

The Board shall make, or cause to be made, such investigations and inspections and do such other things as are reasonably necessary to carry out the provisions of this chapter, within the limits of the appropriations, study grants, funds, or personnel which are available for the purposes of this chapter, including the achievement and maintenance of such levels of air quality as will protect human health, welfare and safety and to the greatest degree practicable prevent injury to plant and animal life and property and which will foster the comfort and convenience of the people of the Commonwealth and their enjoyment of life and property and which will promote the economic and social development of the Commonwealth and facilitate enjoyment of its attractions.

1966, c. 497, § 10-17.17; 1988, c. 891.

§ 10.1-1307. Further powers and duties of Board.

A. The Board shall have the power to control and regulate its internal affairs; initiate and supervise research programs to determine the causes, effects, and hazards of air pollution; initiate and supervise statewide programs of air pollution control education; cooperate with and receive money from the federal government or any county or municipal government, and receive money from any other source, whether public or private; develop a comprehensive program for the study, abatement, and control of all sources of air pollution in the Commonwealth; and advise, consult, and cooperate with agencies of the United States and all agencies of the Commonwealth, political subdivisions, private industries, and any other affected groups in furtherance of the purposes of this chapter.

B. The Board may adopt by regulation emissions standards controlling the release into the atmosphere of air pollutants from motor vehicles, only as provided in Article 22 (§ 46.2-1176 et seq.) of Chapter 10 of Title 46.2.

C. After any regulation has been adopted by the Board pursuant to § 10.1-1308, it may in its discretion grant local variances therefrom, if it finds after an investigation and hearing that local conditions warrant. If local variances are permitted, the Board shall issue an order to this effect. Such order shall be subject to revocation or amendment at any time if the Board after a hearing determines that the amendment or revocation is warranted. Variances and amendments to variances shall be adopted only after a public hearing has been conducted pursuant to the public advertisement of the subject, date, time, and place of the hearing at least 30 days prior to the scheduled hearing. The hearing shall be conducted to give the public an opportunity to comment on the variance.

D. After the Board has adopted the regulations provided for in § 10.1-1308, it shall have the power to: (i) initiate and receive complaints as to air pollution; (ii) hold or cause to be held hearings and enter orders diminishing or abating the causes of air pollution and orders to enforce its regulations pursuant to § 10.1-1309; and (iii) institute legal proceedings, including suits for injunctions for the enforcement of its orders, regulations, and the abatement and control of air pollution and for the enforcement of penalties.

E. The Board in making regulations and in approving variances, control programs, or permits, and the courts in granting injunctive relief under the provisions of this chapter, 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; and

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

F. The Board may designate one of its members, the Director, or a staff assistant to conduct the hearings provided for in this chapter. A record of the hearing shall be made and furnished to the Board for its use in arriving at its decision.

G. The Board shall not:

1. Adopt any regulation limiting emissions from wood heaters; or

2. Enforce against a manufacturer, distributor, or consumer any federal regulation limiting emissions from wood heaters adopted after May 1, 2014.

H. The Board shall submit an annual report to the Governor and General Assembly on or before October 1 of each year on matters relating to the Commonwealth's air pollution control policies and on the status of the Commonwealth's air quality.

1966, c. 497, §§ 10-17.16, 10-17.18; 1968, c. 311; 1969, Ex. Sess., c. 8; 1970, c. 469; 1972, c. 781; 1973, c. 251; 1977, c. 31; 1980, c. 469; 1984, c. 734; 1988, cc. 26, 891; 1990, c. 231; 2004, c. 650; 2015, c. 471.

§ 10.1-1307.01. Further duties of Board; localities particularly affected.

A. Before promulgating a regulation under consideration, granting a variance to an existing regulation, or issuing a permit for the construction of a new major source or for a major modification to an existing source, if the Board finds that there is a locality particularly affected by the regulation, variance, or permit, the Board shall:

1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in each locality affected at least 30 days prior to the close of any public comment period. Such notice shall contain a statement of the estimated local impact of the proposed action, which at a minimum shall provide information regarding specific pollutants and the total quantity of each that may be emitted and shall list the type and quantity of any fuels to be used.

2. Mail the notice to the chief elected official and chief administrative officer of and the planning district commission for such locality.

Written comments shall be accepted by the Board for at least 15 days after any hearing on the regulation, variance, or permit, unless the Board votes to shorten the period.

B. Before granting any variance to an existing regulation or issuing any permit for (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, if the Board finds that there is a locality particularly affected by such variance or permit, the Board shall:

1. Require the applicant to 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 how to request Board consideration or 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.

2. Require the applicant to 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.

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

C. For the purposes of this section, the term "locality particularly affected" means any locality that bears any identified disproportionate material air quality impact that would not be experienced by other localities.

1993, c. 944; 1997, c. 612; 2020, c. 1110.

§ 10.1-1307.02. Permit for generation of electricity during ISO-declared emergency.

A. As used in this section:

"Emergency generation source" means a stationary internal combustion engine that operates according to the procedures in the ISO's emergency operations manual during an ISO-declared emergency.

"ISO-declared emergency" means a condition that exists when the independent system operator, as defined in § 56-576, notifies electric utilities that an emergency exists or may occur and that complies with the definition of "emergency" adopted by the Board pursuant to subsection B.

"Retail customer" has the same meaning ascribed thereto in § 56-576.

B. The Board shall adopt a general permit or permits for the use of back-up generation to authorize the construction, installation, reconstruction, modification, and operation of emergency generation sources during ISO-declared emergencies. Such general permit or permits shall include a definition of "emergency" that is compatible with the ISO's emergency operations manual. After adoption of such general permit or permits, any amendments to the Board's regulations necessary to carry out the provisions of this section shall be exempt from Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act.

2009, cc. 752, 855.

§ 10.1-1307.03. Requirements applicable to Outer Continental Shelf sources.

A. As used in this section:

"Outer Continental Shelf" has the meaning provided by § 2 of the federal Outer Continental Shelf Lands Act (43 U.S.C. § 1331).

"Outer Continental Shelf sources" has the same meaning ascribed thereto in § 328(a)(4)(C) of the Clean Air Act (42 U.S.C. § 7627 (a)(4)(C)).

B. The Board, by January 1, 2011, shall adopt any regulations necessary to implement and enforce the requirements of § 328 of the Clean Air Act (42 U.S.C. § 7627) relating to requirements to control air pollution from Outer Continental Shelf sources located offshore of the Commonwealth. The regulations adopted by the Board shall not differ materially from the regulations promulgated by the U.S. Environmental Protection Agency in implementing § 328 of the Clean Air Act.

2010, c. 689.

§ 10.1-1307.1. Department continued; appointment of Director.

A. The Department of Air Pollution Control is continued as an agency within the Secretariat of Natural Resources. The Department shall be headed by a Director appointed by the Governor, subject to confirmation by the General Assembly, to serve at the pleasure of the Governor.

B. In addition to the powers designated elsewhere in this chapter, the Department shall have the power to:

1. Administer the policies and regulations established by the Board pursuant to this chapter;

2. Employ such personnel as may be required to carry out the duties of the Department;

3. Make and enter into all contracts and agreements necessary or incidental to the performance of the Department's duties and the execution of its powers under this chapter, including, but not limited to, contracts with the United States, other states, agencies, and governmental subdivisions of the Commonwealth;

4. Accept grants from the United States government and agencies and instrumentalities thereof and any other source. To these ends, the Department shall have the power to comply with such conditions and execute such agreements as may be necessary, convenient, or desirable; and

5. Perform all acts necessary or convenient to carry out the purposes of this chapter.

1990, c. 238.

§ 10.1-1307.2. Powers and duties of the Executive Director.

A. The Executive Director, under the direction and control of the Governor, shall exercise such powers and perform such duties as are conferred or imposed upon him by the law and shall perform such other duties required of him by the Governor and the Board.

B. The Executive Director may be vested with the authority of the Board when it is not in session, subject to such regulations or delegation as may be prescribed by the Board.

In no event shall the Executive Director have the authority to adopt or promulgate any regulation.

C. In addition to the powers designated elsewhere in this chapter, the Director shall have the following general powers:

1. Supervise and manage the Department;

2. Prepare and submit all requests for appropriations and be responsible for all expenditures pursuant to appropriations;

3. Provide investigative and such other services as needed by the Department to enforce applicable laws and regulations;

4. Provide for the administrative functions and services of the Department;

5. Provide such office facilities as will allow the Department to carry out its duties; and

6. Assist the citizens (including corporate citizens) of the Commonwealth by providing guidelines, time tables, suggestions and in general being helpful to applicants seeking state and federal air pollution control permits.

1990, c. 238.

§ 10.1-1307.3. Executive Director to enforce laws.

A. The Executive Director or his duly authorized representative shall have the authority to:

1. Supervise, administer, and enforce the provisions of this chapter and regulations and orders of the Board as are conferred upon him by the Board;

2. Investigate any violations of this chapter and regulations and orders of the Board;

3. Require that air pollution records and reports be made available upon request, and require owners to develop, maintain, and make available such other records and information as are deemed necessary for the proper enforcement of this chapter and regulations and orders of the Board;

4. Upon presenting appropriate credentials to the owner, operator, or agent in charge:

a. Enter without delay and at reasonable times any business establishment, construction site, or other area, workplace, or environment in this Commonwealth; and

b. Inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, without prior notice, unless such notice is authorized by the Director or his representative, any such business establishment or place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and question privately any such employer, officer, owner, operator, agent, or employee. If such entry or inspection is refused, prohibited, or otherwise interfered with, the Director shall have the power to seek from a court having equity jurisdiction an order compelling such entry or inspection; and

5. Temporarily suspend the enforcement of any regulation or permit requirement applicable to any part of an electrical generation and transmission system, whether owned or contracted for, when a public electric utility providing power within the Commonwealth so requests and has suffered a force majeure event as defined in subdivision 7 of § 59.1-21.18:2.

B. The Executive Director or his duly authorized representative may pursue enforcement action for a violation of opacity requirements or limits based on (i) visual observations conducted pursuant to methods approved by the U.S. Environmental Protection Agency, (ii) data from certified continuous opacity monitors, or (iii) other methods approved by the U.S. Environmental Protection Agency.

1990, c. 238; 1995, c. 184; 2007, c. 148.

§ 10.1-1308. Regulations.

A. The Board, after having studied air pollution in the various areas of the Commonwealth, its causes, prevention, control and abatement, shall have the power to promulgate regulations, including emergency regulations, abating, controlling and prohibiting air pollution throughout or in any part of the Commonwealth in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.), except that a description of provisions of any proposed regulation which are more restrictive than applicable federal requirements, together with the reason why the more restrictive provisions are needed, shall be provided to the standing committee of each house of the General Assembly to which matters relating to the content of the regulation are most properly referable. No such regulation shall prohibit the burning of leaves from trees by persons on property where they reside if the local governing body of the county, city or town has enacted an otherwise valid ordinance regulating such burning. The regulations shall not promote or encourage any substantial degradation of present air quality in any air basin or region which has an air quality superior to that stipulated in the regulations. Any regulations adopted by the Board to have general effect in part or all of the Commonwealth shall be filed in accordance with the Virginia Register Act (§ 2.2-4100 et seq.).

B. Any regulation that prohibits the selling of any consumer product shall not restrict the continued sale of the product by retailers of any existing inventories in stock at the time the regulation is promulgated.

C. Any regulation requiring the use of stage 1 vapor recovery equipment at gasoline dispensing facilities may be applicable only in areas that have been designated at any time by the U.S. Environmental Protection Agency as nonattainment for the pollutant ozone. For purposes of this section, gasoline dispensing facility means any site where gasoline is dispensed to motor vehicle tanks from storage tanks.

D. No regulation of the Board shall require permits for the construction or operation of qualified fumigation facilities, as defined in § 10.1-1308.01.

E. Notwithstanding any other provision of law and no earlier than July 1, 2024, the Board shall adopt regulations to reduce, for the period of 2031 to 2050, the carbon dioxide emissions from any electricity generating unit in the Commonwealth, regardless of fuel type, that serves an electricity generator with a nameplate capacity equal to or greater than 25 megawatts that supplies (i) 10 percent or more of its annual net electrical generation to the electric grid or (ii) more than 15 percent of its annual total useful energy to any entity other than the manufacturing facility to which the generating source is interconnected (covered unit).

The Board may establish, implement, and manage an auction program to sell allowances to carry out the purposes of such regulations or may in its discretion utilize an existing multistate trading system.

The Board may utilize its existing regulations to reduce carbon dioxide emissions from electric power generating facilities; however, the regulations shall provide that no allowances be issued for covered units in 2050 or any year beyond 2050. The Board may establish rules for trading, the use of banked allowances, and other auction or market mechanisms as it may find appropriate to control allowance costs and otherwise carry out the purpose of this subsection.

In adopting such regulations, the Board shall consider only the carbon dioxide emissions from the covered units. The Board shall not provide for emission offsetting or netting based on fuel type.

Regulations adopted by the Board under this subsection shall be subject to the requirements set out in §§ 2.2-4007.03, 2.2-4007.04, 2.2-4007.05, and 2.2-4026 through 2.2-4030 of the Administrative Process Act (§ 2.2-4000 et seq.) and shall be published in the Virginia Register of Regulations.

1966, c. 497, §§ 10-17.16, 10-17.18; 1968, c. 311; 1969, Ex. Sess., c. 8; 1970, c. 469; 1972, c. 781; 1973, c. 251; 1980, c. 469; 1984, c. 734; 1988, cc. 26, 891; 1993, c. 456; 1997, c. 55; 2005, c. 66; 2006, c. 71; 2011, c. 393; 2020, cc. 1193, 1194.

§ 10.1-1308.01. Qualified fumigation facilities.

A. For the purposes of this section, a "qualified fumigation facility" means a facility that:

1. Conducts commodity fumigation using any chemical regulated under Section 112(b) of the federal Clean Air Act of foods, products, components, livestock or materials including fumigation subject to regulation by either the U.S. Department of Agriculture or the U.S. Food and Drug Administration, or conducts such fumigation as required by other international, federal, or state regulations or requirements;

2. Is not otherwise exempt under regulations of the Board for toxic air pollutants;

3. Has the potential to emit less than 10 tons per year of any hazardous air pollutant or 25 tons per year of any combination of hazardous air pollutants regulated by the Board pursuant to its regulations in Articles 4 (9VAC5-60-200 et seq.) and 5 (9VAC5-60-300 et seq.) of Chapter 60 (9VAC5-60); or is not otherwise subject to regulation under the provisions of the federal Clean Air Act (42 U.S.C. § 7401 et seq.) related to hazardous air pollutants. For determining potential to emit, "facility" means any building, structure, facility or installation that emits or may emit any regulated air pollutant. A facility shall include all of the pollutant-emitting activities that belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person or persons under common control;

4. Operates in compliance with all federal and state regulations for licensing and operation of fumigation facilities and licensing of fumigant applicators; and

5. Conducts fumigation activities that are, at a minimum, one of the following:

a. Performed in buildings or locations within the facility that are no closer than 300 feet from any building, structure, or area not within the facility if such building, structure, or area is regularly occupied by the public. The conditions in this subdivision may be waived or reduced by the Department, in consultation with the Department of Agriculture and Consumer Services;

b. Performed in buildings or containers that are sealed during fumigation and that voluntarily employ capture and control technologies for the fumigant emissions; or

c. Monitored utilizing equipment and methods recognized by the National Institute for Occupational Safety and Health, or other equipment and methods widely accepted as an industry standard, to ensure the applicable fumigant airborne concentrations referenced in the permissible exposure limits established by the Department of Labor and Industry or the parts per million standard stipulated in the federally approved pesticide labeling, whichever is more stringent, is not exceeded at the fence or property line during active fumigation and fumigation aeration.

B. The operator of a qualified fumigation facility shall provide to the Department, by first-class mail, facsimile, or electronic mail:

1. A written notice prior to conducting fumigation activity at the facility that shall include:

a. Exact physical location at the facility of the particular fumigation operation and distance from any building, structure, or other area regularly occupied by the public;

b. Object being fumigated (e.g. rail car, truck container, warehouse, bin, storage silo, open pallet of product);

c. Product being fumigated;

d. Number of objects and quantity of product being fumigated;

e. Containment system (e.g. tarp, sealed container);

f. Fumigant to be used;

g. Expected quantity of fumigant to be used;

h. Expected duration of fumigation;

i. Expected duration of aeration;

j. Material safety data sheet (MSDS) for fumigant; and

k. A brief description of capture and control device, if used pursuant to subdivision A 5 b.

2. A written report completed within four business days following the completion of the fumigation activity that shall include:

a. Total quantity of fumigant actually used;

b. Actual duration of aeration; and

c. Monitoring results for fumigation operations conducted pursuant to subdivision A 5 c.

C. Prior to the application of fumigant at the site, a facility shall post visible and legible signs at the facility fence or property line closest to any public right-of-way. The signs shall remain in place until completion of the aeration process and shall conform to the format for placards mandated by the federally approved fumigant label.

D. In-transit fumigations where the planned aeration is scheduled to occur outside of the Commonwealth are not subject to Board regulations.

2011, c. 393.

§ 10.1-1308.1. Streamlined permitting process for qualified energy generators.

A. As used in this section:

"Biomass" means organic material that is available on a renewable or recurring basis, including:

1. Forest-related materials, including mill residues, logging residues, forest thinnings, slash, brush, low-commercial value materials or undesirable species, and woody material harvested for the purpose of forest fire fuel reduction or forest health and watershed improvement;

2. Agricultural-related materials, including orchard trees, vineyard, grain or crop residues, including straws, aquatic plants and agricultural processed co-products and waste products, including fats, oils, greases, whey, and lactose;

3. Animal waste, including manure and slaughterhouse and other processing waste;

4. Solid woody waste materials, including landscape trimmings, waste pallets, crates and manufacturing, construction, and demolition wood wastes, excluding pressure-treated, chemically treated or painted wood wastes and wood contaminated with plastic;

5. Crops and trees planted for the purpose of being used to produce energy;

6. Landfill gas, wastewater treatment gas, and biosolids, including organic waste byproducts generated during the wastewater treatment process; and

7. Municipal solid waste, excluding tires and medical and hazardous waste.

"Expedited process" means a process that (i) requires the applicant to pay fees to the Commonwealth in connection with the issuance and processing of the permit application that do not exceed $50 and (ii) has a duration, from receipt of a complete permit application until final action by the Board or Department on the application, not longer than 60 days.

"Qualified energy generator" means a commercial facility located in the Commonwealth with the capacity annually to generate no more than five megawatts of electricity, or produce the equivalent amount of energy in the form of fuel, steam, or other energy product, that is generated or produced from biomass, and that is sold to an unrelated person or used in a manufacturing process.

B. The Board shall develop an expedited process for issuing any permit that the Board is required to issue for the construction or operation of a qualified energy generator. The development of the expedited permitting process shall be in accordance with subdivision A 8 of § 2.2-4006; however, if the construction or operation of a qualified energy generator is subject to a major new source review program required by § 110(a)(2)(C) of the federal Clean Air Act, this section shall not apply.

2008, c. 258; 2010, c. 65.

§ 10.1-1309. Issuance of special orders; civil penalties.

A. The Board shall have the power to issue special orders to:

(i) owners who are permitting or causing air pollution as defined by § 10.1-1300, to cease and desist from such pollution;

(ii) owners who have failed to construct facilities in accordance with or have failed to comply with plans for the control of air pollution submitted by them to and approved by the Board, to construct such facilities in accordance with or otherwise comply with, such approved plans;

(iii) owners who have violated or failed to comply with the terms and provisions of any Board order or directive to comply with such terms and provisions;

(iv) owners who have contravened duly adopted and promulgated air quality standards and policies, to cease such contravention and to comply with air quality standards and policies;

(v) require any owner to comply with the provisions of this chapter and any Board decision; and

(vi) require any person to pay civil penalties of up to $32,500 for each violation, not to exceed $100,000 per order, if (a) the person has been issued at least two written notices of alleged violation by the Department for the same or substantially related violations at the same site, (b) such violations have not been resolved by demonstration that there was no violation, by an order issued by the Board or the Director, or by other means, (c) at least 130 days have passed since the issuance of the first notice of alleged violation, and (d) there is a finding that such violations have occurred after a hearing conducted in accordance with subsection B. The actual amount of any penalty assessed shall be based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty. The Board shall provide the person with the calculation for the proposed penalty prior to any hearing conducted for the issuance of an order that assesses penalties pursuant to this subsection. Penalties shall be paid to the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§ 10.1-2500 et seq.). The issuance of a notice of alleged violation by the Department shall not be considered a case decision as defined in § 2.2-4001. Any notice of alleged violation shall include a description of each violation, the specific provision of law violated, and information on the process for obtaining a final decision or fact finding from the Department on whether or not a violation has occurred, and nothing in this section shall preclude an owner from seeking such a determination.

B. Such special orders are to be issued only after a hearing before a hearing officer appointed by the Supreme Court in accordance with § 2.2-4020 with reasonable notice to the affected owners of the time, place and purpose thereof, and they shall become effective not less than five days after service as provided in subsection C below. Should the Board find that any such owner is unreasonably affecting the public health, safety or welfare, or the health of animal or plant life, or property, after a reasonable attempt to give notice, it shall declare a state of emergency and may issue without hearing an emergency special order directing the owner to cease such pollution immediately, and shall within 10 days hold a hearing, after reasonable notice as to the time and place thereof to the owner, to affirm, modify, amend or cancel such emergency special order. If the Board finds that an owner who has been issued a special order or an emergency special order is not complying with the terms thereof, it may proceed in accordance with § 10.1-1316 or 10.1-1320.

C. Any special order issued under the provisions of this section need not be filed with the Secretary of the Commonwealth, but the owner to whom such special order is directed shall be notified by certified mail, return receipt requested, sent to the last known address of such owner, or by personal delivery by an agent of the Board, and the time limits specified shall be counted from the date of receipt.

D. Nothing in this section or in § 10.1-1307 shall limit the Board's authority to proceed against such owner directly under § 10.1-1316 or 10.1-1320 without the prior issuance of an order, special or otherwise.

1971, Ex. Sess., c. 91, § 10-17.18:1; 1973, c. 251; 1988, c. 891; 2005, c. 706.

§ 10.1-1309.1. Special orders; penalties.

The Board is authorized to issue special orders in compliance with the Administrative Process Act (§ 2.2-4000 et seq.) requiring that an owner file with the Board a plan to abate, control, prevent, remove, or contain any substantial and imminent threat to public health or the environment that is reasonably likely to occur if such source ceases operations. Such plan shall also include a demonstration of financial capability to implement the plan. Financial capability may be demonstrated by the establishment of an escrow account, the creation of a trust fund to be maintained within the Department, submission of a bond, corporate guarantee based on audited financial statements, or such other instruments as the Board may deem appropriate. The Board may require that such plan and instruments be updated as appropriate. The Board shall give due consideration to any plan submitted by the owner in accordance with §§ 10.1-1410, 10.1-1428, and 62.1-44.15:1.1, in determining the necessity for and suitability of any plan submitted under this section.

For the purposes of this section, "ceases operation" means to cease conducting the normal operation of a source which is regulated under this chapter under circumstances where it would be reasonable to expect that such operation will not be resumed by the owner at the source. The term shall not include the sale or transfer of a source in the ordinary course of business or a permit transfer in accordance with Board regulations.

Any person who ceases operations and who knowingly and willfully fails to implement a closure plan or to provide adequate funds for implementation of such plan shall, if such failure results in a significant harm or an imminent and substantial threat of significant harm to human health or the environment, be liable to the Commonwealth and any political subdivision thereof for the costs incurred in abating, controlling, preventing, removing, or containing such harm or threat.

Any person who ceases operations and who knowingly and willfully fails to implement a closure plan or to provide adequate funds for implementation of such plan shall, if such failure results in a significant harm or an imminent and substantial threat of significant harm to human health or the environment, be guilty of a Class 4 felony.

1991, c. 702.

§ 10.1-1310. Decision of Board pursuant to hearing.

Any decision by the Board rendered pursuant to hearings under § 10.1-1309 shall be reduced to writing and shall contain the explicit findings of fact and conclusions of law upon which the Board's decision is based. Certified copies of the written decision shall be delivered or mailed by certified mail to the parties affected by it. Failure to comply with the provisions of this section shall render such decision invalid.

1971, Ex. Sess., c. 91, § 10-17.18:2; 1973, c. 251; 1988, c. 891.

§ 10.1-1310.1. Notification of local government.

Upon determining that there has been a violation of this chapter or any regulation promulgated under this chapter or order of the Board, and such violation poses an imminent threat to the health, safety or welfare of the public, the Director shall immediately notify the chief administrative officer of any potentially affected local government. Neither the Director, the Commonwealth, nor any employee of the Commonwealth shall be liable for a failure to provide, or a delay in providing, the notification required by this section.

1988, cc. 434, 891; 1990, c. 238.

§ 10.1-1311. Penalties for noncompliance; judicial review.

A. The Board is authorized to promulgate regulations providing for the determination of a formula for the basis of the amount of any noncompliance penalty to be assessed by a court pursuant to subsection B hereof, in conformance with the requirements of Section 120 of the federal Clean Air Act, as amended, and any regulations promulgated thereunder. Any regulations promulgated pursuant to this section shall be in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

B. Upon a determination of the amount by the Board, the Board shall petition the circuit court of the county or city wherein the owner subject to such noncompliance assessment resides, regularly or systematically conducts affairs or business activities, or where such owner's property affected by the administrative action is located for an order requiring payment of a noncompliance penalty in a sum the court deems appropriate.

C. Any order issued by a court pursuant to this section may be enforced as a judgment of the court. All sums collected, less the assessment and collection costs, shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 (§ 10.1-2500 et seq.) of this title.

D. Any penalty assessed under this section shall be in addition to permits, fees, orders, payments, sanctions, or other requirements under this chapter, and shall in no way affect any civil or criminal enforcement proceedings brought under other provisions of this chapter.

1979, c. 65, § 10-17.18:3; 1988, c. 891; 1991, c. 718.

§ 10.1-1312. Air pollution control districts.

A. The Board may create, within any area of the Commonwealth, local air pollution control districts comprising a city or county or a part or parts of each, or two or more cities or counties, or any combination or parts thereof. Such local districts may be established by the Board on its own motion or upon request of the governing body or bodies of the area involved.

B. In each district there shall be a local air pollution control committee, the members of which shall be appointed by the Board from lists of recommended nominees submitted by the respective governing bodies of each locality, all or a portion of which are included in the district. The number of members on each committee shall be in the discretion of the Board. When a district includes two or more localities or portions thereof, the Board shall apportion the membership of the committee among the localities, provided that each locality shall have at least one representative on the committee. The members shall not be compensated out of state funds, but may be reimbursed for expenses out of state funds. Localities may provide for the payment of compensation and reimbursement of expenses to the members and may appropriate funds therefore. The portion of such payment to be borne by each locality shall be prescribed by agreement.

C. The local committee is empowered to observe compliance with the regulations of the Board and report instances of noncompliance to the Board, to conduct educational programs relating to air pollution and its effects, to assist the Department in its air monitoring programs, to initiate and make studies relating to air pollution and its effects, and to make recommendations to the Board.

D. The governing body of any locality, wholly or partially included within any such district, may appropriate funds for use by the local committee in air pollution control and studies.

1966, c. 497, § 10-17.19; 1969, Ex. Sess., c. 8; 1972, c. 781; 1988, c. 891.

§ 10.1-1313. State Advisory Board on Air Pollution.

The Board is authorized to name qualified persons to a State Advisory Board on Air Pollution.

1966, c. 497, § 10-17.20; 1985, c. 448; 1988, c. 891.

§ 10.1-1314. Owners to furnish plans, specifications and information.

Every owner which the Board has reason to believe is causing, or may be about to cause, an air pollution problem shall on request of the Board furnish such plans, specifications and information as may be required by the Board in the discharge of its duties under this chapter. Any information, except emission data, as to secret processes, formulae or methods of manufacture or production shall not be disclosed in public hearing and shall be kept confidential. If samples are taken for analysis, a duplicate of the analytical report shall be furnished promptly to the person from whom such sample is requested.

1966, c. 497, § 10-17.21; 1968, c. 311; 1975, c. 126; 1988, c. 891.

§ 10.1-1314.1. Protection of trade secrets.

Any information, except emissions data, reported to or otherwise obtained by the Director, the Board, or the agents or employees of either which contains or might reveal a trade secret shall be confidential and shall be limited to those persons who need such information for purposes of enforcement of this chapter or the federal Clean Air Act or regulations and orders of the Board. It shall be the duty of each owner to notify the Director or his representatives of the existence of trade secrets when he desires the protection provided herein.

1990, c. 238.

§ 10.1-1315. Right of entry.

Whenever it is necessary for the purposes of this chapter, the Board or any member, agent or employee thereof, when duly authorized by the Board, may at reasonable times enter any establishment or upon any property, public or private, to obtain information or conduct surveys or investigations.

1966, c. 497, § 10-17.22; 1988, c. 891.

§ 10.1-1316. Enforcement and civil penalties.

A. Any owner violating or failing, neglecting or refusing to obey any provision of this chapter, any Board regulation or order, or any permit condition may be compelled to comply by injunction, mandamus or other appropriate remedy.

B. Without limiting the remedies which may be obtained under subsection A, any owner violating or failing, neglecting or refusing to obey any Board regulation or order, any provision of this chapter, or any permit condition shall be subject, in the discretion of the court, to a civil penalty not to exceed $32,500 for each violation. Each day of violation shall constitute a separate offense. In determining the amount of any civil penalty to be assessed pursuant to this subsection, the court shall consider, in addition to such other factors as it may deem appropriate, the size of the owner's business, the severity of the economic impact of the penalty on the business, and the seriousness of the violation. Such civil penalties shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 (§ 10.1-2500 et seq.) of this title. Such civil penalties may, in the discretion of the court assessing them, be directed to be paid into the treasury of the county, city or town in which the violation occurred, to be used to abate environmental pollution in such manner as the court may, by order, direct, except that where the owner in violation is the county, city or town itself, or its agent, the court shall direct the penalty to be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 of this title.

C. With the consent of an owner who has violated or failed, neglected or refused to obey any Board regulation or order, or any provision of this chapter, or any permit condition, the Board may provide, in any order issued by the Board against the owner, for the payment of civil charges in specific sums, not to exceed the limit of subsection B. Such civil charges shall be in lieu of any civil penalty which could be imposed under subsection B. Such civil charges shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 of this title.

D. The Board shall develop and provide an opportunity for public comment on guidelines and procedures that contain specific criteria for calculating the appropriate penalty for each violation based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty.

1966, c. 497, § 10-17.23; 1976, c. 622; 1978, c. 475; 1980, c. 378; 1988, c. 891; 1991, c. 718; 1993, c. 13; 2005, c. 706.

§ 10.1-1316.1. Severe ozone nonattainment areas; fees.

A. Except as provided in subsection C, any owner of a stationary source that emits or has the potential to emit 25 tons or more per year of volatile organic compounds or 25 tons or more of nitrogen oxides and is located in an area designated by the U.S. Environmental Protection Agency as a severe ozone nonattainment area shall pay a fee to the Department for deposit in the Vehicle Emissions Inspection Program Fund, established pursuant to § 46.2-1182.2 to be used for air quality evaluation and improvements, if the area fails to attain the ambient air quality standard for ozone by the applicable attainment date established pursuant to 42 U.S.C. §§ 7502 and 7511 of the Clean Air Act. Such fees shall be assessed for emissions in each calendar year beginning in the year after the attainment date and for each calendar year thereafter as set forth in this section and shall continue until the area is redesignated as an attainment area for the ozone standard.

B. The fee shall be determined in accordance with the following:

1. The fee shall equal $5,000, adjusted in accordance with subdivision B 3, per ton of volatile organic compounds or nitrogen oxides emitted by the stationary source during the previous calendar year in excess of 80 percent of the baseline amount, computed under subdivision B 2.

2. For purposes of this section, the baseline amount shall be the lower of (i) the amount of actual volatile organic compounds or nitrogen oxide emissions or (ii) the amount of volatile organic compounds or nitrogen oxide emissions allowed under the permit applicable to the stationary source during the attainment year, or, if no such permit has been issued for the attainment year, the amount of volatile organic compounds or nitrogen oxide emissions allowed under the applicable implementation plan during the attainment year. The Department may calculate the baseline amount over a period of more than one calendar year, provided such determination is consistent with federal requirements.

3. The fee amount under subdivision B 1 shall be adjusted each year beginning in 1991 by the percentage, if any, by which the Consumer Price Index for the most recent calendar year ending before the beginning of such year exceeds the Consumer Price Index for the calendar year 1989. The Consumer Price Index for any calendar year is the average of the Consumer Price Index for all urban consumers published by the U.S. Department of Labor as of the close of the 12-month period ending on August 31 of each calendar year. The revision of the Consumer Price Index that is most consistent with the Consumer Price Index for the calendar year 1989 shall be used.

C. Notwithstanding any provision of this section, no owner shall be required to pay any fee under subsection A with respect to emissions during any year that is treated as an extension year under 42 U.S.C. § 7511 (a)(5) of the Clean Air Act and no owner shall be required to pay any fee under subsection A if such fees would not otherwise be imposed pursuant to 42 U.S.C. § 7511d.

D. Payment is due by August 31 of each year. The Department shall issue annual notices of the fees to owners on or before August 1 of each year. Each notice shall include a summary of the data on which the fee is based. The Board may establish additional procedures for the assessment and collection of such fees. The failure to pay within 90 days from the receipt of the notice shall be grounds to institute a collection action against the owner of the stationary source.

E. Fees collected pursuant to this section shall not supplant or reduce the general fund appropriation to the Department.

F. These fees shall be used to pay expenses related to air quality monitoring and evaluation in the Commonwealth and measures to improve air quality in areas designated by the U.S. Environmental Protection Agency as severe nonattainment areas. The fees that may be generated may be used for matching grants.

2004, c. 408.

§ 10.1-1317. Judicial review of regulations of Board.

The validity of any regulation may be determined through judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

1971, Ex. Sess., c. 91, § 10-17.23:1; 1986, c. 615; 1988, c. 891.

§ 10.1-1318. Appeal from decision of Board.

A. Any owner aggrieved by a final decision of the Board under § 10.1-1309, § 10.1-1322 or subsection D of § 10.1-1307 is entitled to judicial review thereof in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

B. Any person who has participated, in person or by submittal of written comments, in the public comment process related to a final decision of the Board under § 10.1-1322 and who has exhausted all available administrative remedies for review of the Board's decision, shall be entitled to judicial review of the Board's decision in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) if such person meets the standard for obtaining judicial review of a case or controversy pursuant to Article III of the United States Constitution. A person shall be deemed to meet such standard if (i) such person has suffered an actual or imminent injury which is an invasion of a legally protected interest and which is concrete and particularized; (ii) such injury is fairly traceable to the decision of the Board and not the result of the independent action of some third party not before the court; and (iii) such injury will likely be redressed by a favorable decision by the court.

1971, Ex. Sess., c. 91, § 10-17.23:2; 1986, c. 615; 1988, c. 891; 1993, c. 997; 1996, c. 1032.

§ 10.1-1319. Appeal to Court of Appeals.

The Commonwealth or any party aggrieved by any final decision of the judge shall have, regardless of the amount involved, the right to appeal to the Court of Appeals. The procedure shall be the same as that provided by law concerning appeals and supersedeas.

1966, c. 497, § 10-17.28; 1984, c. 703; 1988, c. 891.

§ 10.1-1320. Penalties; chapter not to affect right to relief or to maintain action.

Any owner knowingly violating any provision of this chapter, Board regulation or order, or any permit condition shall upon conviction be guilty of a misdemeanor and shall be subject to a fine of not more than $10,000 for each violation within the discretion of the court. Each day of violation shall constitute a separate offense.

Nothing in this chapter shall be construed to abridge, limit, impair, create, enlarge or otherwise affect substantively or procedurally the right of any person to damages or other relief on account of injury to persons or property.

1966, c. 497, § 10-17.29; 1972, c. 781; 1973, c. 251; 1988, c. 891; 1993, c. 13; 1995, c. 135.

§ 10.1-1320.1. Duty of attorney for the Commonwealth.

It shall be the duty of every attorney for the Commonwealth to whom the Director or his authorized representative has reported any violation of this chapter or any regulation or order of the Board, to cause proceedings to be prosecuted without delay for the fines and penalties in such cases.

1990, c. 238.

§ 10.1-1321. Local ordinances.

A. Existing local ordinances adopted prior to July 1, 1972, shall continue in force; however, in the event of a conflict between a Board regulation and a local ordinance adopted prior to July 1, 1972, the Board regulation shall govern, except when the conflicting local ordinance is more stringent.

B. The governing body of any locality proposing to adopt an ordinance, or an amendment to an existing ordinance, relating to air pollution after June 30, 1972, shall first obtain the approval of the Board as to the provisions of the ordinance or amendment. No ordinance or amendment, except an ordinance or amendment pertaining solely to open burning, shall be approved by the Board which regulates any emission source that is required to register with the Board or to obtain a permit pursuant to this chapter and the Board's regulations.

1966, c. 497, § 10-17.30; 1972, c. 781; 1988, c. 891; 1994, c. 358.

§ 10.1-1321.1. When application for permit considered complete.

A. No application for a permit for a new or major modified stationary air pollution source shall be considered complete unless the applicant has provided the Director with notification from the governing body of the county, city, or town in which the source is to be located that the location and operation of the source are consistent with all ordinances adopted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2.

B. The governing body shall inform in writing the applicant and the Department of the source's compliance or noncompliance not more than forty-five days from receipt by the chief executive officer, or his agent, of a request from the applicant.

C. Should the governing body fail to provide written notification as specified in subsection B of this section, the requirement for such notification as specified in subsection A of this section is waived.

D. The provisions of this section shall apply only to applications received after July 1, 1990.

1990, c. 235; 1993, c. 739.

§ 10.1-1322. Permits.

A. Pursuant to regulations adopted by the Board and subject to § 10.1-1322.01, permits may be issued, amended, revoked or terminated and reissued by the Department and may be enforced under the provisions of this chapter in the same manner as regulations and orders. Failure to comply with any condition of a permit shall be considered a violation of this chapter and investigations and enforcement actions may be pursued in the same manner as is done with regulations and orders of the Board under the provisions of this chapter. To the extent allowed by federal law, any person holding a permit who is intending to upgrade the permitted facility by installing technology, control equipment, or other apparatus that the permittee demonstrates to the satisfaction of the Director will result in improved energy efficiency, will reduce the emissions of regulated air pollutants, and meets the requirements of Best Available Control Technology shall not be required to obtain a new, modified, or amended permit. The permit holder shall provide the demonstration anticipated by this subsection to the Department no later than 30 days prior to commencing construction.

B. The Board by regulation may prescribe and provide for the payment and collection of annual permit program fees for air pollution sources. Annual permit program fees shall not be collected until (i) the federal Environmental Protection Agency approves the Board's operating permit program established pursuant to Title V of the federal Clean Air Act or (ii) the Governor determines that such fees are needed earlier to maintain primacy over the program. The annual fees shall be based on the actual emissions (as calculated or estimated) of each regulated pollutant, as defined in § 502 of the federal Clean Air Act, in tons per year, not to exceed 4,000 tons per year of each pollutant for each source. The annual permit program fees shall not exceed a base year amount of $25 per ton using 1990 as the base year, and shall be adjusted annually by the Consumer Price Index as described in § 502 of the federal Clean Air Act. Permit program fees for air pollution sources who receive state operating permits in lieu of Title V operating permits shall be paid in the first year and thereafter shall be paid biennially. The fees shall approximate the direct and indirect costs of administering and enforcing the permit program, and of administering the small business stationary source technical and environmental compliance assistance program as required by the federal Clean Air Act. The Board shall also collect permit application fee amounts not to exceed $30,000 from applicants for a permit for a new major stationary source. The permit application fee amount paid shall be credited towards the amount of annual fees owed pursuant to this section during the first two years of the source's operation. The fees shall be exempt from statewide indirect costs charged and collected by the Department of Accounts.

C. When adopting regulations for permit program fees for air pollution sources, the Board shall take into account the permit fees charged in neighboring states and the importance of not placing existing or prospective industry in the Commonwealth at a competitive disadvantage.

D. On or before January 1 of every even-numbered year, the Department shall make an evaluation of the implementation of the permit fee program and provide this evaluation in writing to the Senate Committee on Agriculture, Conservation and Natural Resources, the Senate Committee on Finance, the House Committee on Appropriations, the House Committee on Agriculture, Chesapeake and Natural Resources, and the House Committee on Finance. This evaluation shall include a report on the total fees collected, the amount of general funds allocated to the Department, the Department's use of the fees and the general funds, the number of permit applications received, the number of permits issued, the progress in eliminating permit backlogs, and the timeliness of permit processing.

E. To the extent allowed by federal law and regulations, priority for utilization of permit fees shall be given to cover the costs of processing permit applications in order to more efficiently issue permits.

F. Fees collected pursuant to this section shall not supplant or reduce in any way the general fund appropriation to the Department.

G. The permit fees shall apply to permit programs in existence on July 1, 1992, any additional permit programs that may be required by the federal government and administered by the Board, or any new permit program required by the Code of Virginia.

H. The permit program fee regulations promulgated pursuant to this section shall not become effective until July 1, 1993.

I. [Expired.]

1978, c. 818, § 10-17.30:1; 1988, c. 891; 1992, c. 488; 1993, c. 711; 1994, c. 227; 1995, c. 158; 2004, cc. 249, 324; 2005, c. 633; 2008, cc. 276, 557; 2012, c. 581.

§ 10.1-1322.01. Permits; procedures for public hearings and permits before the Board.

A. During the public comment period on a permit action, interested persons may request a public hearing to contest such action or the terms and conditions thereof. Where public hearings are mandatory under state or federal law or regulation, interested persons may request, during the public comment period on the permit action, that the Board consider the permit action pursuant to the requirements of this section.

B. Requests for a public hearing or Board consideration shall contain the following information:

1. The name, mailing address, and telephone number 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, an unincorporated association is a person);

3. The reason why a public hearing or Board consideration is requested;

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, 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 State Air Pollution Control Law (§ 10.1-1300 et seq.).

C. Upon completion of the public comment period on a permit action, the Director shall review all timely requests for public hearing or Board consideration 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 or Board consideration after the public hearing required by state or federal law or regulation, 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, modification, or revocation of the permit in question as evidenced by receipt of a minimum of 25 individual requests for a public hearing or Board consideration;

2. That the requesters raise substantial, disputed issues relevant to the issuance, denial, 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 State Air Pollution Control Law (§ 10.1-1300 et seq.), federal law or any regulation promulgated thereunder.

D. Either the Director or a majority of the Board members, acting independently, may request a meeting of the Board to be convened within 20 days of the Director's decision pursuant to subsection C in order to review such decision and determine by a majority vote of the Board whether or not to grant a public hearing or Board consideration, or to delegate the permit to the Director for his decision.

For purposes of this subsection, if a Board meeting is held via electronic communication means, the meeting shall be held in compliance with the provisions of § 2.2-3708.2, except that a quorum of the Board is not required to be physically assembled at one primary or central meeting location. Discussions of the Board held via such electronic communication means shall be specifically limited to a (i) review of the Director's decision pursuant to subsection C, (ii) determination of the Board whether or not to grant a public hearing or Board consideration, or (iii) delegation of the permit to the Director for his decision. No other matter of public business shall be discussed or transacted by the Board during any such meeting held via electronic communication means.

E. The Director shall, forthwith, notify by 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 or Board consideration.

F. In addition to subsections C, D, and E, the Director may, in his discretion, convene a public hearing on a permit action or submit a permit action to the Board for its consideration.

G. If a determination is made to hold a public hearing, the Director shall schedule the hearing at a time between 45 and 75 days after mailing of the notice required by subsection E.

H. 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.

I. The Director may, on his own motion or at the request of the applicant or permittee, for good cause shown, reschedule the date of the public hearing. In the event the Director reschedules the date for the public hearing after notice has been published, he shall, or require the applicant to, provide reasonable notice of the new date of the public hearing. Such notice shall be published once in the same newspaper where the original notice was published.

J. Public hearings held pursuant to these procedures may be conducted by (i) the Board at a regular or special meeting of the Board or (ii) one or more members of the Board. A member of the Board shall preside over the public hearing.

K. The presiding Board member shall have the authority to maintain order, preserve the impartiality of the decision process, and conclude the hearing process expeditiously. The presiding Board member, in order to carry out his responsibilities under this subsection, is authorized to exercise the following powers, including but not limited to:

1. Prescribing the methods and procedures to be used in the presentation of factual data, arguments, and proof orally and in writing including the imposition of reasonable limitations on the time permitted for oral testimony;

2. Consolidating the presentation of factual data, arguments, and proof to avoid repetitive presentation of them;

3. Ruling on procedural matters; and

4. Acting as custodian of the record of the public hearing causing all notices and written submittals to be entered in it.

L. The public comment period will remain open for 15 days after the close of the public hearing if required by § 10.1-1307.01.

M. When the public hearing is conducted by less than a quorum of the Board, the Department shall, promptly after the close of the public hearing comment period, make a report to the Board.

N. After the close of the public hearing comment period, the Board shall, at a regular or special meeting, take final action on the permit. Such decision shall be issued within 90 days of the close of the public comment period or from a later date, as agreed to by the permittee or applicant and the Board or the Director. The Board shall not take any action on a permit where a public hearing was convened solely to satisfy the requirements of state or federal law or regulation unless the permit was provided to the Board for its consideration pursuant to the provisions of this section.

O. When the public hearing was conducted by less than a quorum of the Board, persons who commented during the public comment period shall be afforded an opportunity at the Board meeting when final action is scheduled to respond to any summaries of the public comments prepared by the Department for the Board's consideration subject to such reasonable limitations on the time permitted for oral testimony or presentation of repetitive material as are determined by the Board.

P. In making its decision, the Board shall consider (i) the verbal and written comments received during the public comment period made part of the record, (ii) any explanation of comments previously received during the public comment period made at the Board meeting, (iii) the comments and recommendation of the Department, and (iv) the agency files. When the decision of the Board is to adopt the recommendation of the Department, the Board shall provide in writing a clear and concise statement of the legal basis and justification for the decision reached. When the decision of the Board varies from the recommendation of the Department, the Board shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the variation and how the Board's decision is in compliance with applicable laws and regulations. The written statement shall be provided contemporaneously with the decision of the Board. Copies of the decision, certified by the Director, shall be mailed by certified mail to the permittee or applicant.

2008, cc. 276, 557; 2009, c. 627; 2018, c. 55.

§ 10.1-1322.1. Air Pollution Permit Program Fund established; use of moneys.

A. Notwithstanding the provisions of § 2.2-1802, all moneys collected pursuant to §§ 10.1-1322 and 10.1-1322.2 shall be paid into the state treasury and credited to a special nonreverting fund known as the Air Pollution Permit Program Fund, which is hereby established.

B. Any moneys remaining in the Fund shall not revert to the general fund but shall remain in the Fund. Interest earned on such moneys shall remain in the Fund and be credited to it.

C. The Department of Air Pollution Control is authorized and empowered to release moneys from the Fund, on warrants issued by the State Comptroller, for the purposes of carrying out the provisions of this chapter under the direction of the Executive Director.

D. An accounting of moneys received by and distributed from the permit fund shall be kept by the Comptroller and furnished upon request to the Governor or the General Assembly.

1992, c. 488.

§ 10.1-1322.2. Preliminary program permit fees.

A. Prior to the adoption and implementation of a permit fee schedule as authorized under subsection B of § 10.1-1322, the owners of sources of air pollution which are registered by the Department in accordance with the regulations of the Board are assessed preliminary program permit fees on an annual basis in accordance with subsection C of this section. These fees shall be deposited in the Air Pollution Permit Program Fund established by § 10.1-1322.1. The Department shall issue annual notices of the fees to owners of registered sources on or before August 1 of each fiscal year. Each notice of a fee shall include a summary of the data on which the fee is based. Fees shall be payable thirty days after receipt of notice. Failure to make timely payment within ninety days shall be grounds to institute a collection action against the owner of the registered source by the Attorney General.

B. The provisions of this section shall be applicable to all owners in cases where the aggregate of all pollutants emitted (as calculated or estimated) by all sources owned or controlled by the same owner, or by any entity controlling, controlled by, or under common control with such owner, are greater than 500 tons per year. Any individual stationary source with actual emissions (as calculated or estimated) of less than 100 tons per year shall not be subject to a fee under subsection C of this section. Determination of the tons per year of air pollution shall be based on all actual pollutants emitted during the prior calendar year.

C. The Department shall assess preliminary program permit fees uniformly, based on the aggregate of all pollutants emitted (as calculated or estimated) during the calendar year immediately preceding the fiscal year, in an amount calculated to produce revenue totaling $3.1 million. In no instance shall a preliminary fee assessed in any calendar year exceed $100,000 per source. The establishment of a fee schedule under this subsection shall be exempt from the provisions of Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2.

D. Notices of preliminary program permit fees shall not be issued for any fiscal year in which the fees for the operating permit program are in effect in accordance with regulations adopted pursuant to subsection B of § 10.1-1322. Should a permit program fee become due and payable during a fiscal year when the owner has paid a preliminary program permit fee, the permit program fee shall be reduced in an amount equal to the pro rata share of the preliminary program permit fee for the months remaining in the fiscal year. The pro rata share is determined by dividing the fee into twelve equal parts and multiplying that sum by the number of months remaining in the fiscal year.

E. Utilization of the fees collected pursuant to this section shall be limited to the agency's direct and indirect costs of processing permits in order to more efficiently issue permits and to prepare for and begin implementation of the federal Clean Air Act requirements. The fees shall be exempt from statewide indirect costs charged and collected by the Department of Accounts.

F. Fees collected pursuant to this section shall not supplant or reduce in any way the general fund appropriation to the Department.

1992, c. 488.

§ 10.1-1322.3. Emissions trading programs; emissions credits; Board to promulgate regulations.

In accordance with § 10.1-1308, the Board may promulgate regulations to provide for emissions trading programs to achieve and maintain the National Ambient Air Quality Standards established by the United States Environmental Protection Agency, under the federal Clean Air Act. The regulations shall create an air emissions banking and trading program for the Commonwealth, to the extent not prohibited by federal law, that results in net air emission reductions, creates an economic incentive for reducing air emissions, and allows for continued economic growth through a program of banking and trading credits or allowances. The regulations applicable to the electric power industry shall foster competition in the electric power industry, encourage construction of clean, new generating facilities, provide without charge new source set-asides of five percent for the first five plan years and two percent per year thereafter, and provide an initial allocation period of five years. In promulgating such regulations the Board shall consider, but not be limited to, the inclusion of provisions concerning (i) the definition and use of emissions reduction credits or allowances from mobile and stationary sources, (ii) the role of offsets in emissions trading, (iii) interstate or regional emissions trading, (iv) the mechanisms needed to facilitate emissions trading and banking, and (v) the role of emissions allocations in emissions trading. No regulations shall prohibit the direct trading of air emissions credits or allowances between private industries, provided such trades do not adversely impact air quality in Virginia.

1994, c. 204; 1999, c. 1022; 2001, c. 580; 2004, c. 334.

§ 10.1-1322.4. Permit modifications for alternative fuels or raw materials.

Unless required by federal law or regulation, no additional permit or permit modifications shall be required by the Board for the use, by any source, of an alternative fuel or raw material, if the owner demonstrates to the Board that as a result of trial burns at his facility or other facilities or other sufficient data that the emissions resulting from the use of the alternative fuel or raw material supply are decreased. To the extent allowed by federal law or regulation, no demonstration shall be required for the use of processed animal fat, processed fish oil, processed vegetable oil, distillate oil, or any mixture thereof in place of the same quantity of residual oil to fire industrial boilers.

1994, c. 717; 2008, c. 282.

Article 2. Small Business Technical and Environmental Compliance Assistance Program.

§ 10.1-1323. Small business stationary source technical and environmental compliance assistance program.

A. There is hereby created within the Department a small business stationary source technical and environmental compliance assistance program to facilitate compliance by small business stationary sources with the provisions of the federal Clean Air Act. The program shall be administered by the Department.

B. Except as provided in subsections C and D of this section, any stationary source is eligible for the program that:

1. Is owned or operated by a person that employs 100 or fewer individuals;

2. Is a small business concern as defined in the federal Small Business Act;

3. Is not a major stationary source;

4. Does not emit fifty tons or more per year of any regulated pollutant; and

5. Emits less than seventy-five tons per year of all regulated pollutants.

C. Upon petition by a source owner, the Board may, after notice and opportunity for public comment, include as a small business stationary source for purposes of this section any stationary source which does not meet the criteria of subdivision B 3, B 4 or B 5 of this section but which does not emit more than 100 tons per year of all regulated pollutants.

D. The Board, in consultation with the Administrator of the United States Environmental Protection Agency and the Administrator of the United States Small Business Administration and after providing notice and opportunity for public hearing, may exclude as a small business stationary source for purposes of this article any category or subcategory of sources that the Board determines to have sufficient technical and financial capabilities to meet the requirements of the federal Clean Air Act without the application of this section.

1992, c. 303.

§ 10.1-1324. Office of Small Business Ombudsman created.

An Office of Small Business Ombudsman is hereby created within the Department. The Office shall be headed by an ombudsman appointed by the Executive Director. The Small Business Ombudsman shall provide direct oversight of the small business stationary source technical and environmental compliance assistance program.

1992, c. 303.

§ 10.1-1325. Small Business Environmental Compliance Advisory Panel created; membership; terms; compensation and expenses.

The Small Business Environmental Compliance Advisory Panel (the Panel) is hereby established as an advisory panel in the executive branch of state government. It shall be composed of seven members appointed for four years or until their successors have been appointed. Vacancies occurring other than by expiration of a term shall be filled for the unexpired term. Vacancies shall be filled in the same manner as the original appointments. Appointments shall be made in compliance with the Clean Air Act pursuant to 42 U.S.C. § 7661f, as amended, as follows:

1. Two members, who are not owners, or representatives of owners, of small business stationary sources, appointed by the Governor to represent the general public;

2. Two members appointed by the House of Delegates who are owners, or who represent owners, of small business stationary sources (one member each by the Speaker of the House of Delegates and Minority Leader of the House of Delegates);

3. Two members appointed by the Senate who are owners, or who represent owners, of small business stationary sources (one member each by the Majority and Minority Leaders of the Senate); and

4. One member appointed by the Executive Director.

Members of Panel shall receive no compensation for their service, but shall be entitled to reimbursement for all reasonable and necessary expenses incurred in the performance of their duties as provided in §§ 2.2-2813 and 2.2-2825. The costs of expenses of the members shall be paid from such funds as may be available under Subchapter V (42 U.S.C. § 7661 et seq.) of the Clean Air Act, as amended.

1992, c. 303; 2004, c. 1000.

§ 10.1-1326. Duties of the Advisory Board.

The Small Business Environmental Compliance Advisory Board shall:

1. Render advisory opinions concerning the effectiveness of the Small Business Stationary Source Technical and Environmental Compliance Assistance Program, difficulties encountered, and degree and severity of enforcement;

2. Make periodic reports to the General Assembly and the Administrator of the U.S. Environmental Protection Agency concerning the compliance of the State Small Business Stationary Source Technical and Environmental Compliance Assistance Program with the requirements of the federal Paperwork Reduction Act, the federal Regulatory Flexibility Act, and the federal Equal Access to Justice Act;

3. Review information for small business stationary sources to ensure that such information is understandable by the layperson; and

4. Develop and disseminate reports and advisory opinions through the Office of Small Business Ombudsman.

1992, c. 303.

Article 3. Air Emissions Control.

§ 10.1-1327. Repealed.

Repealed by Acts 2011, c. 291, cl. 1.

Article 4. Clean Energy and Community Flood Preparedness Act.

§ 10.1-1329. Definitions.

As used in this article, unless the context requires a different meaning:

"Allowance" means an authorization to emit a fixed amount of carbon dioxide.

"Allowance auction" means an auction in which the Department or its agent offers allowances for sale.

"DHCD" means the Department of Housing and Community Development.

"DMME" means the Department of Mines, Minerals and Energy.

"Energy efficiency program" has the same meaning as provided in § 56-576.

"Fund" means the Virginia Community Flood Preparedness Fund created pursuant to § 10.1-603.25.

"Housing development" means the same as that term is defined in § 36-141.

"Regional Greenhouse Gas Initiative" or "RGGI" means the program to implement the memorandum of understanding between signatory states dated December 20, 2005, and as may be amended, and the corresponding model rule that established a regional carbon dioxide electric power sector cap and trade program.

"Secretary" means the Secretary of Natural Resources.

2020, cc. 1219, 1280.

§ 10.1-1330. Clean Energy and Community Flood Preparedness.

A. The provisions of this article shall be incorporated by the Department, without further action by the Board, into the final regulation adopted by the Board on April 19, 2019, and published in the Virginia Register on May 27, 2019. Such incorporation by the Department shall be exempt from the provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq.).

B. The Director is hereby authorized to establish, implement, and manage an auction program to sell allowances into a market-based trading program consistent with the RGGI program and this article. The Director shall seek to sell 100 percent of all allowances issued each year through the allowance auction, unless the Department finds that doing so will have a negative impact on the value of allowances and result in a net loss of consumer benefit or is otherwise inconsistent with the RGGI program.

C. To the extent permitted by Article X, Section 7 of the Constitution of Virginia, the state treasury shall (i) hold the proceeds recovered from the allowance auction in an interest-bearing account with all interest directed to the account to carry out the purposes of this article and (ii) use the proceeds without further appropriation for the following purposes:

1. Forty-five percent of the revenue shall be credited to the account established pursuant to the Fund for the purpose of assisting localities and their residents affected by recurrent flooding, sea level rise, and flooding from severe weather events.

2. Fifty percent of the revenue shall be credited to an account administered by DHCD to support low-income energy efficiency programs, including programs for eligible housing developments. DHCD shall review and approve funding proposals for such energy efficiency programs, and DMME shall provide technical assistance upon request. Any sums remaining within the account administered by DHCD, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in such account to support low-income energy efficiency programs.

3. Three percent of the revenue shall be used to (i) cover reasonable administrative expenses of the Department in the administration of the revenue allocation, carbon dioxide emissions cap and trade program, and auction and (ii) carry out statewide climate change planning and mitigation activities.

4. Two percent of the revenue shall be used by DHCD, in partnership with DMME, to administer and implement low-income energy efficiency programs pursuant to subdivision 2.

D. The Department, the Department of Conservation and Recreation, DHCD, and DMME shall prepare a joint annual written report describing the Commonwealth's participation in RGGI, the annual reduction in greenhouse gas emissions, the revenues collected and deposited in the interest-bearing account maintained by the Department pursuant to this article, and a description of each way in which money was expended during the fiscal year. The report shall be submitted to the Governor and General Assembly by January 1, 2022, and annually thereafter.

2020, cc. 1219, 1280.

§ 10.1-1331. Energy conversion or energy tolling agreements.

If the Governor seeks to include the Commonwealth as a full participant in RGGI or another carbon trading program with an open auction of allowances, or if the Department implements the final carbon trading regulation as approved by the Board on April 19, 2019, (the Final Regulation) in order to establish a carbon dioxide cap and trade program that limits and reduces the total carbon dioxide emissions released by certain electric generation facilities and that complies with the RGGI model rule, then (i) the definition of the term "life-of-the-unit contractual arrangement" under the Final Regulation shall include any energy conversion or energy tolling agreement that has a primary term of 20 years or more and pursuant to which the purchaser is required to deliver fuel to the CO2 budget source or CO2 budget unit and is entitled to receive all of the nameplate capacity and associated energy generated by such source or unit for the entire contractual period and (ii) any purchaser under an energy conversion or energy tolling agreement shall be responsible for acquiring any CO2 allowances required under the Final Regulation in relation to a CO2 budget source or CO2 budget unit that is subject to such agreement.

2020, cc. 1219, 1280.