Current through Register Vol. 41, No. 3, September 23, 2024
A. Ninety days
after the effective date of any emission standard prescribed under this
chapter, no owner or other person shall operate any existing source in
violation of such standard.
1. Compliance
with standards in this chapter, other than opacity standards, shall be
determined by emission tests established by
9VAC5-40-30, unless specified
otherwise in the applicable standard.
2. Compliance with federal requirements in
this chapter may be determined by alternative or equivalent methods only if
approved by the administrator. For purposes of this subsection, federal
requirements consist of the following:
a. New
source performance standards established pursuant to § 111 of the federal
Clean Air Act.
b. All terms and
conditions in a federal operating permit, including any provisions that limit a
source's potential to emit, unless expressly designated as not federally
enforceable.
c. Limitations and
conditions that are part of an implementation plan.
d. Limitations and conditions that are part
of a section 111(d) or section 111(d)/129 plan.
e. Limitations and conditions that are part
of a federal construction permit issued under
40 CFR
52.21 or any construction permit issued under
regulations approved by EPA in accordance with 40 CFR Part 51.
f. Limitations and conditions that are part
of an operating permit issued pursuant to a program approved by EPA into an
implementation plan as meeting EPA's minimum criteria for federal
enforceability, including adequate notice and opportunity for EPA and public
comment prior to issuance of the final permit and practicable
enforceability.
3.
Compliance with opacity standards in this chapter may be determined by one or
more of the following means:
a. Conducting
observations in accordance with Reference Method 9 or any alternative method
approved by EPA. For purposes of determining initial compliance, the minimum
total time of observations shall be three hours (30 six-minute averages) for
the emission test or other set of observations (meaning those fugitive-type
emission sources subject only to an opacity standard). Opacity readings of
portions of plumes which contain condensed, uncombined water vapor shall not be
used for purposes of determining compliance with opacity standards.
b. Evaluation of data resulting from use of
continuous monitoring by transmissometer, provided the instrument used meets
Performance Specification 1 in Appendix B of 40 CFR Part 60 and has been
properly maintained and that the resulting data have not been altered in any
way.
c. Use of any other method
approved by EPA.
4. The
opacity standards prescribed under this chapter shall apply at all times except
during periods of startup, shutdown, malfunction, and as otherwise provided in
the applicable standard. This exception shall not apply to the following
federal requirements:
a. Limitations and
conditions that are part of an implementation plan.
b. Limitations and conditions that are part
of a federal construction permit issued under
40 CFR
52.21 or any construction permit issued under
regulations approved by EPA in accordance with 40 CFR Part 51.
c. Limitations and conditions that are part
of an operating permit issued pursuant to a program approved by EPA into an
implementation plan as meeting EPA's minimum criteria for federal
enforceability, including adequate notice and opportunity for EPA and public
comment prior to issuance of the final permit and practicable
enforceability.
B. No owner of an existing source subject to
the provisions of this chapter shall fail to conduct emission tests as required
under this chapter.
C. No owner of
an existing source subject to the provisions of this chapter shall fail to
install, calibrate, maintain and operate equipment for continuously monitoring
and recording emissions or process parameters or both as required under this
chapter.
D. No owner of an existing
source subject to the provisions of this chapter shall fail to provide
notifications and reports, revise reports, maintain records or report emission
test or monitoring results as required under this chapter.
E. At all times, including periods of
startup, shutdown, soot blowing and malfunction, owners shall, to the extent
practicable, maintain and operate any affected facility including associated
air pollution control equipment in a manner consistent with air pollution
control practices for minimizing emissions. Determination of whether acceptable
operating and maintenance procedures are being used will be based on
information available to the board, which may include, but is not limited to,
monitoring results, opacity observations, review of operating and maintenance
procedures, and inspection of the source.
F. At all times the disposal of volatile
organic compounds shall be accomplished by taking measures, to the extent
practicable, consistent with air pollution control practices for minimizing
emissions. Volatile organic compounds shall not be intentionally spilled,
discarded in sewers which are not connected to a treatment plant, or stored in
open containers or handled in any other manner that would result in evaporation
beyond that consistent with air pollution control practices for minimizing
emissions.
G. The following
provisions apply with respect to demonstrating compliance with opacity
standards.
1. For the purpose of demonstrating
initial compliance, opacity observations shall be conducted concurrently with
the initial emission test unless one of the following conditions apply:
a. If no emission test is required, then
opacity observations shall be conducted within 60 days after achieving the
maximum production rate at which the affected facility will be operated but no
later than 180 days after the compliance date.
b. If visibility or other conditions prevent
the opacity observations from being conducted concurrently with the initial
emission test, the owner shall reschedule the opacity observations as soon
after the initial emission test as possible, but not later than 30 days
thereafter, and shall advise the board of the rescheduled date. In these cases,
the 30-day prior notification to the board required by
9VAC5-40-50 A 3 shall be waived.
The rescheduled opacity observations shall be conducted (to the extent
possible) under the same operating conditions that existed during the initial
emission test. The visible emissions observer shall determine whether
visibility or other conditions prevent the opacity observations from being made
concurrently with the initial emission test in accordance with procedures
contained in Reference Method 9.
Opacity readings of portions of plumes which contain
condensed, uncombined water vapor shall not be used for purposes of determining
compliance with opacity standards. The owner of an affected facility shall make
available, upon request by the board, such records as may be necessary to
determine the conditions under which the visual observations were made and
shall provide evidence indicating proof of current visible observer emission
certification. The results of continuous monitoring by transmissometer which
indicate that the opacity at the time visual observations were made was not in
excess of the standard are probative but not conclusive evidence of the actual
opacity of an emission, provided the source meets the burden of proving that
the instrument used meets (at the time of the alleged violation) Performance
Specification 1 in Appendix B of 40 CFR Part 60 and has been properly
maintained and (at the time of the alleged violation) that the resulting data
have not been altered in any way.
2. Except as provided in subdivision 3 of
this subsection, the owner of an affected facility to which an opacity standard
in this chapter applies shall conduct opacity observations in accordance with
subdivision A 3 of this section, shall record the opacity of emissions, and
shall report to the board the opacity results along with the results of the
initial emission test. The inability of an owner to secure a visible emissions
observer shall not be considered a reason for not conducting the opacity
observations concurrent with the initial emission test.
3. The owner of an affected facility to which
an opacity standard in this chapter applies may request the board to determine
and to record the opacity of emissions from the affected facility during the
initial emission test and at such times as may be required. The owner of the
affected facility shall report the opacity results. Any request to the board to
determine and to record the opacity of emissions from an affected facility
shall be included in the notification required in
9VAC5-40-50 A 3. If, for some
reason, the board cannot determine and record the opacity of emissions from the
affected facility during the emission test, then the provisions of subdivision
1 of this subsection shall apply.
4. An owner of an affected facility using a
continuous opacity monitor (transmissometer) shall record the monitoring data
produced during the initial emission test and shall furnish the board a written
report of the monitoring results along with the Reference Method 9 and initial
emission test results.
H. The following provisions apply with
respect to new or more stringent emission standards:
1. The following provisions apply with
respect to emission standards for volatile organic compounds:
a. In the case of any emission standard for
volatile organic compounds adopted by the board which is more stringent than
the emission standard for the source in effect prior to such adoption, if any,
or where there was no emission standard, the source shall not be considered in
violation of the newly adopted emission standard provided that the owner
accomplishes the following:
(1) Complies with
the emission standard as expeditiously as possible but in no case later than
one year after the effective date of the emission standard.
(2) Within one month of achieving compliance,
notifies the board of same.
(3)
Within six months of achieving compliance, demonstrates to the satisfaction of
the board compliance with the emission standard.
b. The reprieve provided by subdivision 1 a
of this subsection shall only apply in cases where it is necessary for the
owner to:
(1) Install emission control
equipment or other equipment that alters the facility in order to comply with
the emission standard; or
(2)
Switch fuel or raw materials or both in order to comply with the emission
standard.
c. Owners of
sources not in compliance with the newly adopted emission standard, but in
compliance with the provisions of subdivision 1 a of this subsection shall not
be subject to any penalties for violation of the newly adopted emission
standard that may be required by the Virginia Air Pollution Control
Law.
d. Any reprieve from the
sanctions of any provision of the Virginia Air Pollution Control Law pursuant
to subdivision 1 a of this subsection shall not extend beyond the date by which
compliance is to be achieved.
e.
Nothing in subdivision 1 a of this subsection shall prevent the board from
promulgating a separate compliance schedule for any source if the board finds
that it is technologically infeasible or it is infeasible due to the
nonavailability of necessary equipment or materials or other circumstances
beyond the owner's control for the source to achieve compliance within one year
of the effective date of an emission standard.
f. All compliance schedules proposed or
prescribed under this section shall provide for compliance with the applicable
emission standards as expeditiously as practicable.
g. Any compliance schedule approved under
this subsection may be revoked at any time if the source owner does not meet
the stipulated increments of progress, and if the failure to meet an increment
is likely to result in failure to meet the date for final compliance, and the
failure to meet the increment is due to causes within the owner's
control.
2. The
following provisions apply with respect to emission standards for pollutants
other than volatile organic compounds:
a. In
the case of any emission standard adopted by the board which is more stringent
than the emission standard for the source in effect prior to such adoption, if
any, or where there was no emission standard, the source shall not be
considered in violation of the newly adopted emission standard provided that
the owner accomplishes the following:
(1)
Submits in a form and manner satisfactory to the board, a control program
showing how compliance shall be achieved within the time frame in the
applicable compliance schedule prescribed under
9VAC5-40-21; or, where no
applicable compliance schedule is prescribed under
9VAC5-40-21, how compliance shall
be achieved as expeditiously as possible; but in no case later than three years
after the effective date of such emission standard.
(2) Receives approval of the board of such
control program.
(3) Complies with
all provisions, terms and conditions of the control program including the
increments of progress.
b. The reprieve provided by subdivision 2 a
of this subsection shall only apply in cases where it is necessary for the
owner to:
(1) Install emission control
equipment or other equipment that alters the facility in order to comply with
the emission standard; or
(2)
Switch fuel or raw materials or both in order to comply with the emission
standard.
c. Owners of
sources not in compliance with the newly adopted emission standard, but in
compliance with the provisions of subdivision 2 a of this subsection shall not
be subject to any penalties for violation of the newly adapted emission
standard that may be required by the Virginia Air Pollution Control
Law.
d. Any reprieve from the
sanctions of any provision of the Virginia Air Pollution Control Law pursuant
to subdivision 2 a of this subsection shall not extend beyond the date,
specified in the emission standard or approved control program, by which
compliance is to be achieved.
e.
Control programs submitted under the provisions of subdivision 2 a of this
subsection shall be processed in accordance with the provisions of
9VAC5-20-170. However, if the
control program contains a compliance schedule which conforms to the applicable
schedule prescribed in
9VAC5-40-21, the public hearing
provision of
9VAC5-20-170 shall not
apply.
f. Nothing in this section
shall prevent the board from promulgating a separate compliance schedule for
any source if the board finds that the application of a compliance schedule in
9VAC5-40-21 is technologically
infeasible, or if the board finds that the application of a compliance schedule
in 9VAC5-40-21 is infeasible due to
the nonavailability of necessary equipment or materials or other circumstances
beyond the owner's control.
g.
Nothing in this section shall prevent the owner of a source subject to a
compliance schedule in
9VAC5-40-21 from submitting to the
board a proposed alternative compliance schedule provided the following
conditions are met:
(1) The proposed
alternative compliance schedule is submitted within six months of the effective
date of the emission standard;
(2)
The final control plans for achieving compliance with the applicable emission
standard are submitted simultaneously;
(3) The alternative compliance schedule
contains the same increments of progress as the schedule for which it is
proposed as an alternative; and
(4)
Sufficient documentation is submitted by the owner of the source to justify the
alternative dates proposed for the increments of progress.
h. All compliance schedules proposed or
prescribed under this section shall provide for compliance with the applicable
emission standards as expeditiously as practicable.
i. Any compliance schedule approved under
this subsection may be revoked at any time if the source owner does not meet
the stipulated increments of progress, and if the failure to meet an increment
is likely to result in failure to meet the date for final compliance, and the
failure to meet the increment is due to causes within the owner's
control.
j. The provisions of
9VAC5-40-21 shall not apply to
owners of sources which are in compliance with the applicable emission standard
and for which the owners have determined and certified compliance to the
satisfaction of the board within 12 months of the effective date of the
applicable emission standard.
I. The following provisions apply with
respect to stack heights:
1. The degree of
emission limitation required of any source owner for control of any air
pollutant shall not be affected in any manner by:
a. So much of the stack height of any source
as exceeds good engineering practice; or
b. Any other dispersion technique.
2. The provisions of subdivision 1
of this subsection shall not apply to:
a.
Stack heights in existence, or dispersion techniques implemented on or before
December 31, 1970, except where pollutants are being emitted from such stacks
or using such dispersion techniques by sources, as defined in § 111(a)(3)
of the federal Clean Air Act, which were constructed, or reconstructed, or for
which major modifications, as defined in Article 8 (9VAC5-80-1700 et seq.) and Article
9 (9VAC5-80-2000 et seq.) of Part II
of 9VAC5 Chapter 80, were carried out after December 31, 1970; or
b. Coal-fired steam electric generating units
subject to the provisions of § 118 of the federal Clean Air Act, which
commenced operation before July 1, 1957, and whose stacks were constructed
under a construction contract awarded before February 8, 1974.
3. Prior to the adoption of a new
or revised emission limitation that is based on a good engineering practice
stack height that exceeds the height allowed by subdivision 1 or 2 of the GEP
definition, the board shall notify the public of the availability of the
demonstration study and shall provide the opportunity for public hearing on
it.
4. For purposes of this
subsection, such height shall not exceed the height allowed by subdivision 1 or
2 of the GEP definition unless the owner demonstrates to the satisfaction of
the board, after 30 days notice to the public and opportunity for public
hearing, that a greater height is necessary as provided under subdivision 3 of
the GEP definition.
5. In no event
may the board prohibit any increase in any stack height or restrict in any
manner the maximum stack height of any source.
6. Compliance with emission standards in this
chapter shall not be affected in any manner by the stack height of any source
or any other dispersion technique.
J. For the purpose of submitting compliance
certifications or establishing whether or not a person has violated or is in
violation of any standard in this chapter, nothing in this chapter shall
preclude the use, including the exclusive use, of any credible evidence or
information, relevant to whether a source would have been in compliance with
applicable requirements if the appropriate emission or compliance test or
procedure had been performed.
Statutory Authority
§ 10.1-1308 of the Code of Virginia; §§
110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 40 CFR Parts 51 and
60.
