			UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

						REGION III

					      1650 Arch Street

				   Philadelphia, Pennsylvania 19103-2029			

 ADVANCE \x 0 

DATE:	 May 22, 2008

SUBJECT:	Technical Support Document – Limited Approval of 

Virginia State Implementation Plan Revisions – Nonattainment New
Source Review (NSR) & Prevention of Significant Deterioration (PSD) 	

			/s/	

 ADVANCE \x 0 FROM:	Sharon McCauley

                      Permits and Technical Assessment Branch

 ADVANCE \x 0 TO:               David Campbell, Chief

                      Permits and Technical Assessment Branch

TECHNICAL SUPPORT DOCUMENT

EPA-R03-OAR-2007-0521

LIMITED APPROVAL

AMENDMENTS TO PREVENTION OF SIGNIFICANT DETERIORATION (PSD) 

AIR PERMIT PROGRAM

EPA-R03-OAR-2007-0522

LIMITED APPROVAL

AMENDMENTS TO NONATTAINMENT NEW SOURCE REVIEW (NSR) 

AIR PERMIT PROGRAM  

I.	 	BACKGROUND

	On December 31, 2002, the U.S. Environmental Protection Agency (EPA)
published revisions to the Federal prevention of significant
deterioration (PSD) and nonattainment new source review (NSR)
regulations (67 FR 80186).  These revisions are commonly referred to as
EPA’s “NSR Reform” regulations and became effective on March 3,
2003.  These regulatory revisions included provisions for baseline
emissions determinations, actual-to-future actual methodology, Plantwide
Applicability Limits (PALs), Clean Units, and Pollution Control Projects
(PCPs).  The December 2002 rulemaking action required State and local
permitting authorities to include the NSR Reform measures as minimum
program elements in their State implementation plans (SIP) and to submit
these revisions to EPA by January 2, 2006.

	The United States Court of Appeals for the District of Columbia Circuit
ruled in New York v. EPA, 413 F.3d 3 (D.C. Cir. June 24, 2005) that EPA
did not have the authority to promulgate the Clean Unit provisions, and
the Court requested that EPA vacate that portion of the 2002 Federal
regulation, codified at 40 CFR 52.21(x), as contrary to the statute. 
Also, the Court determined that EPA did not have the authority to create
PCP exceptions from NSR and vacated those parts of the 1991 and 2002
rules, codified at 40 CFR 52.21(b)(32) and 52.21(z), as contrary to the
statute.  

	On October 10, 2006 and February 12, 2007, The Virginia Department of
Environmental Quality (VADEQ) submitted State Implementation Plan (SIP)
revision requests to the EPA Region III.  The October 10, 2006, 2006 SIP
revision request consisted of changes to Legislative Rule 9 VAC 5
Chapter 50 Article 4 - Stationary Sources, 9 VAC 5 Chapter 80 Article 6
– Permits for New and Modified Stationary Sources, and 9 VAC 5 Chapter
80 Article 8 - Permits for Construction and Major Modification of Major
Stationary Sources of Air Pollution for the Prevention of Significant
Deterioration.  The February 12, 2007 SIP revision request consisted of
Legislative Rule 9 VAC 5 Chapter 80 Article 9 - Permits for Construction
and Major Modification of Major Stationary Sources of Air Pollution
which Cause or Contribute to Nonattainment.  These rules were adopted by
the Commonwealth of Virginia State Air Pollution Control Board on June
21, 2006 and became effective September 1, 2006.  The Commonwealth
adopted the regulations in order to meet the relevant plan requirements
of 40 CFR 51.166 and 40 CFR 51.165, respectively.  

	The VADEQ is seeking approval of amendments to these rules in order to
meet the minimum requirements of 40 CFR 51.165, 40 CFR 51.166 and the
Clean Air Act.

II.	SUMMARY OF ACTION

	As stated in the December 31, 2002 “NSR Reform” rulemaking, State
and local permitting agencies were required to adopt and submit
revisions to their part 51 permitting programs, implementing the minimum
program elements of that rulemaking no later then January 2, 2006 (67 FR
80240).  With this submittal, Virginia requests approval of program
revisions to satisfy this requirement.  In addition, Virginia has
updated their stationary source permit regulations in Chapter 50,
Article 4 to conform to the new NSR regulatory program and translated
the Federal NSR requirements into their regulatory text in Chapter 80,
Articles 8 and 9 in a manner that is consistent with State regulatory
development procedures.  

	EPA is proposing limited approval of the revisions to the Virginia
pre-construction permitting program as submitted on October 10, 2006 and
February 12, 2007 in two separate rulemaking actions.  The submittals
consist of rules titled “Chapter 50, Article 4 – Stationary
Sources”, “Chapter 80, Article 8 - Permits for Construction and
Major Modification of Major Stationary Sources of Air Pollution for the
Prevention of Significant Deterioration (PSD)” and “Chapter 80,
Article 9 - Permits for Construction and Major Modification of Major
Stationary Sources of Air Pollution Which Cause or Contribute to
Nonattainment” adopted June 21, 2006 and effective September 1, 2006. 
Virginia also submitted changes to 9 VAC Chapter 80 Article 6 –
Permits for New and Modified Stationary Sources as part of the SIP
revision, however Article 6 has not previously been approved as part of
the Virginia SIP and  EPA will not be taking any rulemaking action on
this portion of the SIP submittal at this time.  This limited approval
action will revise the previously-approved versions of these rules as
approved into the Virginia SIP on April 21, 2000 (65 FR 21315), March
23, 1998 (63 FR 13795) and September 21, 1999 (64 FR 51047).  

III.	INTRODUCTION

	In its December 2002 regulatory action, EPA dramatically changed many
aspects of the regulations governing the PSD and nonattainment NSR
programs (together, as “NSR”).  Virginia accepted the conceptual
framework of EPA’s NSR reform revisions but tailored the program to
their State-specific objectives.  In general, EPA has concluded that
Virginia’s regulations, overall, conform to the minimum program
elements in 40 CFR 51.165 and 51.166 despite some variations in their
rules from the federal program.  This TSD will describe where these
variations occur and why they are acceptable but, in general, the
following discussion and that in Section IV. of this document outlines
the conceptual framework for EPA’s limited approval action.  

During the public comment period for Virginia’s NSR rules, EPA
submitted comments to the record requesting a justification for the
State’s deviations from the federal rules and an explanation for how
their rules still conform to the minimum program elements outlined in 40
CFR part 51.  In both Virginia’s response-to-comment document and also
in a Technical Support Document submitted with its SIP revision (see
Attachment 1), the State posited that EPA admitted in its
“Supplemental Analysis of the Environmental Impact of the 2002 Final
NSR Improvement Rules,” (“Supplemental Analysis”) that it
“…cannot quantify with specificity the emissions changes for a given
pollutant or pollutants, if any, that result from the NSR rule changes
now being adopted, nor can [it] reliably determine the anticipated
locations of any emissions changes.”  Furthermore, Virginia noted that
EPA has acknowledged that its impact analysis is based on incomplete
data and has been unable to reasonably quantify the 2002 rule’s impact
on public health.  According to the State, the impact of the rule was
also addressed in a General Accounting Office (GAO) Report to Congress
which stated that the economic and environmental impacts of the 2002
rule are “uncertain because of limited data and difficulty in
determining how industrial companies will respond to the rule.” 
Therefore, the State has determined that:

“While many aspects of the EPA regulations will likely result in some
air quality benefit when applied in Virginia, the Commonwealth’s
overall air quality situation can benefit from a number of changes to
the EPA requirements.  § 10.1-1308 of the Code of Virginia states,
“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.”  In
other words, no regulation may contribute to the deterioration of air
quality.  Given the uncertainty of specific impacts that implementing
the federal regulations will have on the areas of the state that are
attaining the national standards, certain limitations on some aspects of
the federal regulations may help ensure that this state-specific need is
met.

While it is true that the Commonwealth has met and continues to meet its
overall SIP requirements, nothing in the federal code or regulations
prevents states from revising their SIPs as needed to meet the National
Ambient Air Quality Standards (NAAQS).  A state may have a complete and
approved SIP while continuing to have violations of the NAAQS, which is
very much the case in Virginia.  In the larger context of Virginia’s
overall air quality situation, it is clear that the state needs to take
additional steps beyond the immediate legal requirements for
nonattainment areas if larger, statewide issues of air quality are to be
addressed.  Given the uncertainty surrounding the specific impacts of
the federal regulations, the state is exercising its responsibility to
consider a somewhat more closely scrutinized process for implementing
the basic elements of NSR reform.”

	Finally, Virginia believes that as long as the State’s regulations do
not impede a source's ability to use the basic elements of the NSR
program, EPA should consider the State regulations to be equally as
protective.  Furthermore, the State argues that it should be allowed to
exercise its discretion, which is established in both the Clean Air Act
and the Code of Federal Regulations, to modify EPA’s baseline program
in order to meet state needs.

	EPA agrees that Virginia’s regulations, while different in some
limited respects, will not prevent companies from benefiting from most,
if not all of the goals of NSR reform, which are aimed at “providing
much needed flexibility and regulatory certainty, and at removing
barriers and creating incentives for sources to improve environmental
performance through emissions reductions, pollution prevention, and
improved energy efficiency.”  As will be demonstrated in the
discussions regarding specific rule variations below, every element of
NSR reform is present in Virginia’s rules but these elements may be
implemented in a way that allows the State more scrutiny with respect to
how NSR applies to a facility.  

LIMITED APPROVAL       

The Clean Air Act does not expressly provide for limited approvals,
therefore EPA is using its gap-filling authority under section 301 (a)
of the Act in conjunction with the section 110 (k) (3) approval
provision to interpret the Act to provide for this type of limited
approval action.    A key aspect of these limited approval actions is
that they encompass the entire rule based on the fact that even with
limitations, the approval of the entire rule will strengthen the
Common-wealth’s SIP.  The primary advantage to using this limited
approval is that it will make the Commonwealth’s revision submittal
federally enforceable and will increase the SIP’s potential to achieve
additional reductions. 

The following is an explanation for the limited approval of these SIP
revisions by EPA.  In Virginia’s regulations under 9 VAC 5-80-1615 and
9 VAC 5-80-2010 new definitions were added to reflect the necessary
changes to the program found in the 2002 federal NSR Reform rule.     

Virginia’s definition for “baseline actual emissions” varies from
the federal definition at 40 CFR 51.166(b)(47) in two ways.  First, for
both electric generating units (EGUs) and non-EGUs, Virginia’s rule
allows the use of different baselines for different pollutants if the
owner can demonstrate to the satisfaction of the Board that a different
baseline period for a different pollutant(s) is more appropriate due to
extenuating circumstances.  EPA is proposing full approval on this
variation.  However in the second instance, for non-EGUs, the 24-month
baseline period must occur within the five-year period preceding the
date the owner begins actual construction or the permit application is
deemed complete, whichever is earlier, unless the Board allows a
different time period that it deems is more representative of normal
source operations.  The allowance of a different or an extended time
period by the Board is acceptable as it allows a time period past the
more restrictive 5-year period, however, the Commonwealth’s
regulations do not further limit the Board from allowing a time period
which could extend past the 10-year period currently provided in the
federal NSR Reform rule.     

The Virginia regulations therefore meet the general federal criteria for
expanding the lookback period beyond the old requirement of the most
recent 24-month period, and are thus equivalent to the federal
requirement.  The purpose of an extended lookback is to establish a
period that is most representative of source operation.  Establishment
of the most representative operation not only enables sources to plan
effective emissions control strategies, it also provides Virginia with
more accurate information on which to base long-term air quality
planning strategies.  The 5-year lookback can be seen to be more
restrictive or at times more stringent than the Federal rule.  Requiring
a 5-year lookback instead of a 10-year lookback may, however, limit a
source’s potential to find a higher baseline.  This could in turn
restrict a source’s ability to emit and is thus inherently more
protective than the EPA regulations. 

The Commonwealth provided a more detailed explanation of the 5-year
lookback period in their SIP revision requests.  The following is an
excerpt from the Commonwealth’s “Technical Support Document”. 
This document is also an attachment (Attachment 1) to this Technical
Support Document prepared by EPA.  

“Virginia has numerous reasons for taking a somewhat conservative
approach to revising its new source review program.  These reasons cover
a variety of issues, from public health and air quality, to
administrative and operational concerns, and are discussed in detail
below. While many aspects of the EPA rule will likely result in some air
quality benefit when applied in Virginia, the Commonwealth’s overall
air quality situation can benefit from a certain changes to the EPA
requirements.  § 10.1-1308 of the Code of Virginia states, “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.”  In other
words, no regulation may contribute to the deterioration of air quality.
 Given the uncertainty of specific impacts that implementing the federal
rules will have on the areas of the state that are attaining the
national standards, it is believed that a certain limitations on some
aspects of the federal rules may help ensure that this state-specific
need is met.

In addition to ensuring that areas of the state that meet the national
standards continue to do so, the Commonwealth is also obligated to
actively improve air quality.  Currently, approximately one half of the
Commonwealth’s citizens live in areas that do not attain the national
standards.  Visibility problems have been identified in Virginia’s
Class I (national park) areas.  Additionally, nitrogen deposition from
airborne emissions is contributing to serious water quality problems in
Chesapeake Bay.  In this larger context, it is clear that the state
needs to take additional steps beyond the immediate legal requirements
for nonattainment and PSD areas if larger, statewide issues of air
quality are to be addressed.  Again, given the uncertainty surrounding
the specific impacts of the federal rule, the state rule is exercising
its responsibility to consider a somewhat more closely scrutinized
process for implementing the basic elements of NSR reform.  

Virginia has a legal obligation to incorporate the federal regulations
in a manner that will result in equal or better environmental benefit. 
In order to balance the need to meet Virginia’s specific air quality
needs with the need to improve permitting certainty and flexibility, a
number of revisions to the federal rules have been made...  

The 5-year period was selected in order to enable sources to utilize a
moderately extended lookback while providing the board assurance that no
unusually high or low periods would be selected.  A conservative
transition to the new system will assure permitting, compliance, and
enforcement reliability while allowing sources the enhanced flexibility
of an extended lookback.  Additionally, the regulation allows sources
the use of a different time period in determining baseline actual
emissions if a case can be made that the proposed alternative time
period is more representative of normal source operation.  This
provision will provide sources with additional flexibility when
appropriate, while providing the oversight necessary to monitor the
program and avoid compliance issues.”

Virginia further goes on to provide additional reasoning for why a
5-year lookback period in lieu of the federal 10-year approach was
selected for the facilities in the Commonwealth.  In their revision
request submittals, Virginia further adds how data was used to compare
the impacts of a 2-year, 5-year and 10-year lookback period.  This
discussion can also be found in the Attachment to this Technical Support
Document.  Thus, Virginia has chosen to limit the lookback period to 5
years, as noted above, with the possibility of extending the lookback
period past the 5 years upon Board approval.  It does not however, limit
the possibility of extending the lookback period past the 10 years
allowed in the federal regulations.   

Though it was not Virginia’s intention to exceed the 10-year lookback
limitation, EPA’s decision to propose limited approval is based the
Commonwealth’s interpretation of its regulations as provided in their
discussion, above.  Thus, EPA is proposing limited approval of these SIP
revision requests.  Furthermore, EPA would look unfavorably upon any use
of discretion by Virginia that would allow for baselines that exceed a
10-year lookback period.  EPA expects Virginia to correct these
definitions at 9 VAC 5-80-1615 and 9 VAC 5-80-2010 by limiting the
discretionary lookback period to 10 years.  When Virginia makes these
amendments, they will be eligible for consideration for full approval of
its NSR program.

In conclusion, the impact of Virginia’s tailored approach to NSR
Reform implementation will not be fully known until the program has been
in place for some time since implementation of some elements are left to
the discretion of the Board.  Until the Board has been given the
opportunity to exercise this discretion, EPA cannot say with certainty
that this variation from the federal rule has a measurable impact on
implementation relative to the federal program.  Therefore, EPA believes
it is appropriate that while EPA resolves the gaps in its own ability to
assess the impact of the federal rules as noted in Section III of this
document, that Virginia be given the opportunity to demonstrate that its
program meets the overall objectives of NSR reform in a manner that they
believe is environmentally sound.  EPA believes that this action is
necessary to further strengthen the Virginia SIP.   EPA is relying on
the State’s interpretation of its regulations as noted above and in
part, the basis for our limited approval.  

V.	PROGRAM REVIEW

 	This section outlines the changes Virginia has made to the existing
SIP for both the purposes of NSR reform and to update their regulations
so that they are consistent with both the federal rules and their own
re-codified rules.  Those rule changes that are significant are
discussed in detail.  Many of the rule changes in the SIP revision are
common to both the PSD and nonattainment NSR programs.  Where this
occurs, the discussion will not be repeated but reference will be made
to where the detailed discussion can be found.  

Chapter 50, Article 4 – Stationary Sources

9 VAC 5-50-250.B:  Typographical correction to citation.

9 VAC 5-50-250.C:  Modified the definition of “New Source Review
Program” to include citations of authority in the Federal CAA
provisions as well as the appropriate regulatory citations in
Virginia’s regulations.  Note that the modified provision includes
citations to CAA section 165 for hazardous air pollutants as well as a
citation to Chapter 80, Article 6 of Virginia’s regulations.  The
latter has not been approved as part of the Virginia State
Implementation Plan and including this reference to that Article in the
definition does not incorporate that Article into the SIP.

9 VAC 5-50-270.B and C:  Changes “qualifying” pollutant to
“regulated NSR pollutant” as defined in 9 VAC 5-80-2010.

9 VAC 5-50-280.B and C:  Changes “pollutant subject to regulation
under the federal Clean Air Act” to “regulated NSR pollutant” as
defined in 9 VAC 5-80-1615.

Chapter 80, Articles 8 – Permits for Major Stationary Sources and
Major Modifications Locating in Prevention of Significant Deterioration
Areas

These regulations were originally codified in the approved SIP in
sections 9 VAC 5-80-1700 through 9 VAC 5-80-1970.  Virginia has
re-codified the regulations and added or deleted sections as indicated
in the following tables.  In addition, Virginia has added new provisions
to address the administrative process for applying for and obtaining a
permit to construct that meshes with their existing permitting programs.
   

Table 1.	Citation Changes

Current SIP Citation	New Citation	Title

5-80-1700	5-80-1605	Applicability

5-80-1710	5-80-1615	Definitions

5-80-1720	5-80-1625	General

5-80-1730	5-80-1635	Ambient air increments

5-80-1740	5-80-1645	Ambient air ceilings

5-80-1750	5-80-1655	Applications

5-80-1760	5-80-1665	Compliance with local zoning requirements

5-80-1770	5-80-1675	Compliance determination and verification by
performance testing

5-80-1780	5-80-1685	Stack heights

5-80-1800	5-80-1705	Control technology review

5-80-1810	5-80-1715	Source impact analysis

5-80-1820	5-80-1725	Air quality models

5-80-1830	5-80-1735	Air quality analysis

5-80-1840	5-80-1745	Source information

5-80-1850	5-80-1755	Additional impact analysis

5-80-1860	5-80-1765	Sources affecting  federal class I areas –
additional requirements

5-80-1870	5-80-1775	Public participation

5-80-1880	5-80-1785	Source obligation

5-80-1890	5-80-1795	Environmental impact statements

5-80-1900	5-80-1805	Disputed permits

5-80-1910	5-80-1815	Interstate pollution abatement

5-80-1920	5-80-1825	Innovative control technology

5-80-1940	5-80-1975	Transfer of permits

5-80-1950	5-80-1985	Permit invalidation, revocation, and enforcement



Table 2.	Rules Repealed

Current SIP Citation	Title

5-80-1790	Review of major stationary sources and major modifications –
source applicability and exemptions

5-80-1930	Reactivation and permanent shutdown

5-80-1960	Circumvention

5-80-1970	Review and confirmation of this chapter by board



Table 3.	Rules Added.

New Citation	Title

5-80-1695	Exemptions

5-80-1835	Reserved

5-80-1845	Reserved

5-80-1855	Reserved

5-80-1865	Actuals plantwide applicability limits (PAL)

5-80-1925	Changes to permits

5-80-1935	Administrative permit amendments

5-80-1945	Minor permit amendments

5-80-1955	Significant amendment procedures

5-80-1965	Reopening for cause

5-80-1995	Existence of permit no defense



9 VAC 5-80-1605. Applicability

The following is a brief summary of the changes to 5-80-1605:

Subsection	Status	Description

A	Modified	Minor updates to text.

B	Unchanged	N/A

C	Modified	Existing text deleted and replaced with the source obligation
requirement in 40 CFR 51.166(r)(3) regarding NSR applicability when
limits are relaxed and the resulting change exceeds significant
threshold.   

D	Modified	Minor updates to text; added provision regarding
“state-only” permit limits.

E	Modified	Deleted provisions regarding pollutants regulated under CAA
§112(b).  Moved text of subsection F to E and updated effective date of
rule.

F	Modified	Added provision prohibiting circumvention through pattern of
ownership/development.

G	New	New applicability section explaining two-part NSR reform test and
method of calculation for each type of unit.  Mirrors 40 CFR part
51.166(a)(7)(iv)(a) through (f).

H	New	Applicability of PAL provisions, per 40 CFR part 51.166(7)(v).

I	New	Limits IBR when citing 40 CFR parts 60, 61 and 63.

J	New	Limits IBR when citing 40 CFR part 51 and 58.



These revisions are primarily updates to the rules with respect to
correct citations, consistency with definitions and the rule effective
date.  The new provisions in subsections G and H were specifically added
to meet the minimum program elements under the December 2002 federal
reform rules.   These new sections are the same provisions contained in
40 CFR part 51.166(a)(7)(iv)(a) through (f), except for (e), which was
vacated by the Third Circuit decision.

9 VAC 5-80-1615  Definitions.

The following table briefly summarizes the changes to this section of
Article 8.

Subsection	Status	Description

A	Modified	Minor text revisions.

B	Modified	Minor text revisions.

C	Modified	See below.



Many of the definitions currently in the SIP have been revised and many
terms have been added to accommodate the NSR reform regulations.  In
addition, Virginia has updated the text of some definitions and added
definitions that have existed in the federal program for many years
prior to NSR reform.  The following table summarizes the changes that
have been made.  Those terms appearing in bold text are NSR reform
minimum program elements.  Unless otherwise noted in the discussion
below, all other modifications to definitions are grammatical or
citation corrections or otherwise minor changes:

Modified definitions	“Actual emissions”, “adverse impact on
visibility”, “allowable emissions”, “baseline area”,
“baseline concentration”, “baseline date”, “begin actual
construction”, “best available control technology”, “building,
structure, facility or installation”, “commence”, “complete”,
“construction”, “emissions unit”, “federally enforceable”,
“fugitive emissions”, “locality particularly affected”, “major
modification”, “major stationary source”, “necessary
preconstruction approvals and permits”, net emissions increase”,
“potential to emit”, “secondary emissions”, “significant”,
“stationary source”.

New definitions	Actuals PAL for a major stationary source, applicable
federal requirement, baseline actual emissions, “clean coal
technology”, “clean coal technology demonstration project”,
“continuous emissions monitoring system”, “continuous emissions
rate monitoring system”, “continuous parameter monitoring system”,
“electric steam generating unit”, “enforceable as a practical
matter”, “federal operating permit”, federal operating permit
program”,  “lowest achievable emissions rate”, “major emissions
unit”, “major new source review permit”, “major new source
review permit program”, “minor new source review program”, “new
source review permit”, “new source review permit program”,
“plantwide applicability limitation”, “PAL effective date”, PAL
effective period”, “PAL major modification”, “PAL permit”,
“PAL pollutant”, “predictive emissions monitoring system”,
“project”, “projected actual emissions”, “reactivation of a
very clean coal-fired electric utility steam generating unit”,
“reasonably available control technology”, “regulated NSR
pollutant”, “repowering”, “significant emissions increase”,
significant emissions unit”, “small emissions unit”,
“state-enforceable”, “state operating permit”, “state
operating permit program”, “temporary clean coal technology
demonstration project”.



Except for the changes made to implement NSR reform, these definition
changes reflect minor word changes (e.g. changing “which” to
“that”), changes in citation or are updates that occurred in prior
SIP submittals prior to submittal of Virginia’s NSR reform rules that
EPA has not yet processed.  Virginia has also added terms that are
intended to help implement their state permit programs in general.  

EPA is proposing limited approval of these revisions and additions,
including definitions for terms that differ from the federal rules. 
Significant departures from the federal rules and EPA’s approval of
these deviations are explained below: 

“Baseline actual emissions”:  As previously noted above, in Section
IV of this Technical Support Document, the State’s definition  for
“baseline actual emissions” varies from the federal definition at 40
CFR 51.166(b)(47) in two ways.  First, for both EGUs and non-EGUs,
Virginia’s rule allows the use of different baselines for different
pollutants if the owner can demonstrate to the satisfaction of the Board
that a different baseline period for a different pollutant(s) is more
appropriate due to extenuating circumstances.  In the second instance,
for non-EGUs, the 24-month baseline period must be within the five years
preceding the date the owner begins actual construction or the permit
application is deemed complete, whichever is earlier, unless the Board
allows a different time period that it deems is more representative of
normal source operations.  

With respect to allowing different baseline periods for different
pollutants and allowing baseline periods to reach back ten years for
non-EGUs, Virginia’s regulations are different from the federal rules
in the sense that they use different “rebuttable presumptions”.  The
federal rules presume that different baseline periods are acceptable. 
Conversely, Virginia’s rules presume that a source must use the same
baseline period for each pollutant unless the source demonstrates that
different baseline periods are more representative.  Similarly, the
federal rules presume that any 24-month period within the past ten years
is acceptable (with some conditions) and there is no obligation on a
facility to demonstrate that any period chosen is representative of
normal source operation.  Virginia’s rules allow a presumptive
five-year lookback period but anything beyond five years must be
demonstrated to be representative of normal source operation.   

It is very possible, even likely, that the resulting baseline period(s)
for any given project will be the same, regardless of which presumption
is used at the start.  The difference will be that where a baseline
period extends beyond five years or where different baseline periods
will be used for different pollutants, Virginia’s rules dictate a
greater level of scrutiny on the part of the State.  Assuming that the
Board makes reasonable decisions, the downside of this approach is that
the permitting process in those limited situations that go beyond
Virginia’s presumed baseline periods will be less streamlined.  As
Virginia noted in its response to comments and provided in Section III
of this document.  The State makes a similar argument for its approach
to allowing different baseline periods for different pollutants on a
case by case basis.   The Region believes that these limited variations
from the federal rules will not prevent Virginia’s NSR program from
meeting the objectives of NSR reform.   

“Emissions unit”:  When EPA published the WEPCO rule on July 21,
1992, (57FR 32314) the rule precluded the
actual-to-representative-actual-emissions test for replacement units. 
This preclusion was extended to all source categories in our 1996
preamble to the proposed revisions to NSR (see 62 FR 38267).   However,
in the preamble to the December 31, 2002 rules, EPA determined that the
actual-to- projected-actual-emissions test would be appropriate for
replacement units: 

    

In addition, we now believe that, as with modified units, the fact that
replacement units are replacing similar units with a record of
historical operational data provides sufficient reasons to believe that
a projection of future actual emissions can be sufficiently reliable
that an up-front emissions cap based on PTE is unnecessary. In other
words, a source replacing a unit should be able to adequately project
and track emissions for the replacement unit based, in part, on the
operating history of the replaced unit. (See 67 FR 80194).

Therefore, the preclusion was removed from the final rule.  EPA received
a petition for reconsideration of the NSR reform rule for, among other
things, the new emissions test for replacement units.  On November 7,
2003, EPA issued a final action on the petition for reconsideration and
retained the actual-to-projected-actual emissions test for replacement
units.  Although EPA stated in the preamble that “We believe that the
current rules, as supplemented by the discussion in the December 2002
preamble, are self implementing for replacement units”, EPA concluded
that a clarification to the underlying rule was warranted.  In the
reconsideration notice the definition of “emissions unit” was
revised to include a statement that a replacement unit was an existing
unit and a separate definition of “replacement unit” was added.

In the response to public comment, Virginia outlined those areas where
it disagreed with EPA with respect to the December 2002 rules.  These
areas did not include the replacement unit provisions.  Therefore, EPA
concludes that Virginia adopted the same approach taken in the December
2002 rules, i.e., the rules are self-implementing with respect to
allowing the actual-to-projected-actual emissions test for replacement
units.  The fact that Virginia did not adopt the revisions outlined in
the notice of reconsideration should not affect their ability to
implement the replacement unit provisions in a manner consistent with
the federal rules.     

 “Federally enforceable”:  The State’s definition includes a
statement that this term means all limitations and conditions that are
enforceable by the administrator and citizens under the federal Clean
Air Act.  The State’s definition also includes as “federally
enforceable” individual consent agreements that the EPA has legal
authority to create.  In the first case, the State’s inclusion of
“citizens” does not add to the universe of terms and conditions that
are federally enforceable, above those that are enforceable by the
Administrator.  Therefore, although the definition varies from the
federal definition by including a redundant and somewhat unnecessary
statement on what is considered federally enforceable, it does not
change the scope or meaning of the term.  

In the second case, including federal consent decrees under the umbrella
of “federally enforceable” is not correct in the context of
permitting.  Consent agreements are not issued for the purpose of
creating independently enforceable terms and conditions outside of those
established in the CAA.  For instance, a consent agreement cannot be
used to restrict the potential to emit of a source or emissions unit
beyond any underlying federally enforceable term or condition
established in the SIP, a federally enforceable permit or any other
provision of the CAA.   Rather, in CAA §113, orders are issued to
require a person (or State) to comply with the requirements or
prohibitions that are already contained within a SIP or a permit and
that are already federally enforceable (see section 113(a)(1)). 
Furthermore, an order can be issued whenever the Administrator finds
that a person has violated any federally enforceable requirement in
title I, section 303, title IV, title V or title VI of the Act.  By
including consent agreements in the definition of “federally
enforceable”, the State is saying that a consent agreement creates
federally enforceable terms and conditions to comply with federally
enforceable terms and conditions.  This redundancy should not be
interpreted to effectively change the meaning of the term “federally
enforceable” as established in 40 CFR 51.166(b)(17).   EPA interprets
Virginia’s definition to mean that the underlying federally
enforceable terms and conditions that are the basis of a consent
agreement are “federally enforceable”.  For instance, where a person
or facility has failed to obtain a permit prior to constructing a new
major facility or modification to an existing major facility, a consent
agreement may compel them to correct the violation and obtain the permit
but, until the facility does so, nothing in the consent agreement can
create a federally enforceable obligation until the consent agreement
becomes part of a SIP or a federally enforceable permit.

“PAL effective period”:  Virginia has determined that PALs provide
outstanding environmental and administrative benefits and therefore have
incorporated in their rules all the federal PAL provisions, with the
exception of the PAL effective period.  Virginia sets the PAL term at
five years, versus the ten-year effective period under the federal
rules.  As with other aspects of their NSR reform program, the State has
adopted the flexibility of NSR reform but has chosen to provide a
greater level of oversight than required under the federal rules.

In the Supplemental Analysis, EPA stated that we set the term for a PAL
at ten years to provide regulatory certainty, balance the initial
resource investment to develop the PAL with the long term reduction in
administrative burden, and to provide incentives for sources to
participate in the PAL program.  With respect to regulatory certainty,
EPA states that this is the primary incentive for having a PAL:

“It is important to note that the incentive for sources to take PALs
stems from the more flexible and certain approach to NSR applicability
that PALs offer, which offers benefits for all sources, even those who
may not otherwise trigger major NSR. We expect that many sources might
seek to obtain PALs because of the regulatory certainty they offer, even
though they expect to have very few (or no) changes over the life of the
PAL that would trigger major NSR absent the PAL.” (Emphasis added).

In this analysis, “regulatory certainty” is described as certainty
with respect to whether any given change would be subject to NSR.   In
discussing the term of the PAL with respect to “contemporaneity”,
EPA states in the preamble to the December 2002 rule, that “As long as
the decreases that have occurred during the term of the PAL are
sufficient to offset any increase that occurs, total emissions for your
source will remain below the PAL, and your source will not experience a
‘‘significant net emissions increase.’’(See 67 FR 80216).  The
preamble at this point is attempting to use an analogy to describe how
the concept of contemporaneity is inherently part of a PAL.  If this
statement in the preamble were correct the duration of the PAL could
significantly impact “regulatory certainty” because a facility would
have more (or less time, in the case of sources in Virginia) over which
to spread the increases and compensating decreases in order to net out
of review.   A PAL provides considerable operational flexibility in
allowing a facility to operate in any manner it wishes so long as its
actual emissions do not equal or exceed the PAL.  The facility is not
required to make any demonstration that it has “netted” out of NSR
for any given change or over the life of the PAL.  The only relevant
question is whether or not the facility’s actual emissions, measured
in real time, equal or exceed the PAL.  Therefore, the Region believes
that Virginia’s variation on the duration of a PAL has little or no
impact on regulatory certainty with respect to whether any given change
triggers NSR.

Both EPA’s and Virginia’s TSDs indicate that considerable resources
are necessary to develop a PAL but this effort is more than offset by
the reduced administrative burden once a facility has a PAL.  However,
the State disagrees with the preamble where it states that a 5-year
period would be too short and hence not beneficial to either the
regulated community or the permitting authority.  Virginia believes that
the administrative burden of renewing a PAL is outweighed by the need to
review the PAL on a more frequent basis.  This position is somewhat
supported by the fact that the PAL must be adjusted downwards to reflect
compliance with any new requirements either at PAL renewal or at Title V
permit renewal, whichever occurs first.  Therefore, at a minimum, the
PAL must be re-set every five years for new applicable requirements.  

When considering administrative burden, it must be noted that Virginia
also has considerable discretion with respect to setting the renewed PAL
level since they adopted the same provisions for renewal that are in the
federal rule.  For instance, if the sum of baseline actual emissions and
the significance level is greater that 80% of the PAL level, the State
may simply renew the PAL at the same level.  Where this is not the case,
EPA’s preamble to the December 2002 rule states that:

“…the reviewing authority may set the PAL at a level that it
determines to be more representative of the source’s baseline actual
emissions, or that it determines to  be appropriate considering air
quality needs, advances in control technology, anticipated economic
growth in the area, desire to reward or encourage the source’s
voluntary emissions reductions, cost effective emissions control
alternatives, or other factors as specifically identified by the
reviewing authority in its written rationale. For instance, a reviewing
authority may determine that PAL levels are inconsistent with the levels
necessary to achieve the NAAQS, or a State may determine that PAL levels
need to be reduced to provide room for new economic growth in the
area….At the same time, the reviewing authority may exercise its
discretion in deciding that an adjustment is not

warranted. We believe that such discretion is appropriate…”.  (67 FR
80209).

The considerations described above as reasons to adjust a PAL, such as
air quality needs, are the very same considerations Virginia has used to
argue for more frequent review of PALs.  This is not to say that
Virginia will always renew PALs at some other, more stringent level.  As
has been discussed elsewhere, the impact of the five-year versus
ten-year PAL term on the “equivalency” of Virginia’s PAL program
cannot be assessed until the State has been given the opportunity to
exercise the discretionary elements outlined in the federal PAL program.
 Therefore, the Region approves this variation from the federal program.
   

“Projected actual emissions”:  The text of Virginia’s definition
of this term mirrors the federal rule except that at the end of what
would be 40 CFR 51.166(b)(40)(ii)(c) in the federal rule, Virginia adds
“including any increase utilization due to product demand growth,
provided such exclusion shall not reduce any calculated increase in
emissions that are caused by, result from, or are related to the
particular project”.  (Added text is in italics).  This additional
text does not in any way change how projected actual emissions are to be
calculated under the State’s rule.  Instead, it affirms earlier text
in the definition (as it appears in both the federal and state rules)
that restricts the exclusion of emissions that could have been
accommodated during the baseline period to increases “that are also
unrelated to the particular project”. 

“Significant”:  EPA published the final PM2.5 Implementation Rule on
March 29, 2007, but deferred establishing NSR requirements for PM2.5
until a later date.  In the interim, States are to continue to follow
the October 24, 1997 guidance titled “Interim use of PM10 as a
Surrogate for PM2.5 in Meeting NSR” and the April 5, 2005 guidance
titled “ New Source Review: Implementation of New Source Review
Requirements in PM-2.5 Nonattainment Areas: Interim Guidance”. 
Although EPA has not yet established federal NSR requirements for PM2.5,
Virginia moved ahead and adopted a significance level for PM2.5 of 10
tons per year.  This may pose some difficulties with implementation
because the State is now required to implement PM2.5 as a PSD pollutant
at a time when EPA has not yet fully developed the necessary elements of
a PSD program, such as modeling protocols, significant impact levels,
etc.  For these aspects of the program, the State may still have to use
PM10 as a surrogate for PM2.5.  It must be noted that EPA’s approval
of this significance level into the SIP at this time will not relieve
Virginia of adopting the federal NSR requirements for PM2.5 (should they
be different) once they are promulgated.

9 VAC 5-80-1625.  General

The following is a brief summary of the revisions to this section. 
These revisions are all administrative in nature and tailored to
Virginia’s permitting framework.  They do not change or affect any
minimum program elements established in 40 CFR part 51.166 and are
acceptable revisions to the SIP.

Subsection	Status	Description

A	Modified	Updates requirement to obtain permit prior to construction.

B	Added	The requirements in this section apply unless specifically
excluded.

C	Modified	Old subsection B.  Citations updated.

D	Modified	Old subsection D.  Citations updated.

E	New	Old subsection D.  Added text regarding permit consolidation.

F	New	Prohibits incorporating certain types of permits into a PSD
permit.

G	New	Confers federal enforceability on all permit terms and conditions
unless otherwise specified.

I	New	Allows phased construction projects.



9 VAC 5-80-1655.  Applications.

The following table outlines the revisions to this section.  These
changes are administrative changes that do not affect any minimum
program element of the federal NSR program and are acceptable revisions
to the SIP.

Subsection	Status	Description

A	Modified	Minor wording changes.

B	Same

	C	Modified	Removed all subsequent subsections relating to
certifications and replaced with reference to 9 VAC 5-20-230 (general
provisions for certifications).

D	Removed

	E	Removed

	F	Removed

	

9 VAC 5-80-1675.  Compliance demonstration and verification by
performance testing.

Generally, this section has been revised to reflect new citations and to
remove outdated provisions regarding hazardous air pollutants.  These
are acceptable revisions to the SIP.

Subsection	Status	Description

A	Modified	Removes reference to deleted subsections.

B	Removed	Old subsection B was removed to remove references to hazardous
air pollutants and replaced with subsection C.  

C	Modified	Old subsection D with minor word changes.

D	Removed	Subsection D was removed and replaced with old subsection E. 
Wording of old subsection E retained.  

E	New	Added provisions stating that a shield does not apply to waivers
granted under this section.



9 VAC 5-80-1685.  Stack heights.

This section was split into two subsections.  These revisions are
acceptable SIP revisions.

Subsection	Status	Description

A	New	This is a new subsection that incorporated all of the text from
the existing subsection.

B	New	This is a new provision that requires public participation for GEP
stack heights.



9 VAC 5-80-1695.  Exemptions.

This section is essentially a re-titling, recodification, and reordering
of the subsections of  9 VAC 5-80-1790.  The following table describes
how the section has been changed.  Note that all subsections have been
changed to reflect updated citations.

Current Subsection in 1790	New Subsection in 1695	Changes

A	None	Removed.

B	None	Removed.

C	None	Removed.

D	A	Updates list of source categories that require fugitive emissions to
be counted in determining major source status.  Removes reference to
non-profit organizations.

E	B	Minor word changes.

F	C	Minor word changes.

G	D	No changes.

H	E	No changes.

I	None	Removed.



9 VAC 5-80-1705.  Control technology review.

In addition to some minor word changes, subsections A through D were
modified to use the term “regulated NSR pollutant”, which conforms
to the federal definition and use of that term. 

9 VAC 5-80-1715.  Source impact analysis.

This section has been split into two subsections, with subsection A
incorporating all of the text from the current version of this section.

Subsection	Status	Description

A	New	Incorporates all of the text from the former 9 VAC 5-80-1810. 

B	New	This section was added to satisfy the requirement in 40 CFR 51.165
that SIPs contain provisions that establish ambient significance levels
whereby a source or modifications located in an attainment or
unclassifiable area would be considered to be causing or contributing to
a violation of a NAAQS.  This is normally a requirement for
nonattainment NSR SIPs.



9 VAC 5-80-1775.  Public participation.

Other than minor changes in text, the only substantive change was the
addition of subsection G, which allows consolidation of public
participation requirements where multiple permits are required.

9 VAC 5-80-1785.  Source obligation.

This section has been substantially revised to incorporate the remaining
elements of NSR reform and to tailor those elements to a program that
meets Virginia’s objectives with respect to oversight.  The following
table outlines the structural revisions and additions to the section. 
Bolded text indicates an NSR reform element.

Old Subsection	New Subsection	Description

A	A	Minor wording changes.

B

Removed.

	B	Old subsection B is deleted and replaced with provisions regarding
reasonable possibility.  

	C	Public availability of information.

C	D	General duty to comply – no changes in text.

	E	Requires notice prior to construction for all source categories and
outlines the State’s enforcement response to emissions that exceed NSR
significance.

D

Removed



The State will soon be revising this Section of its regulations to
reflect changes made in the EPA final rule dated December 14, 2007
providing improvements to EPA’s New Source Review program regarding
“reasonable possibility” in recordkeeping.   This final rule
provided an  explanation and more detailed criteria to clarify the
“reasonable possibility” recordkeeping and reporting standard of the
2002 New Source Review Reform rule.  The improvements provided in the
December 14, 2007 rulemaking were to reflect the improvements found
necessary to respond to the decision of the U.S. Court of Appeals for
the DC Circuit in New York v. EPA, 413 F.3d 3 (DC Cir. 2005) (New York)
which remanded this portion of the December 2002 regulations for EPA to
provide an acceptable explanation for its ‘‘reasonable
possibility’’ standard or to devise an appropriately supported
alternative.   

In this current SIP revision submittal, Virginia added subsections B and
E to incorporate the requirements in 40 CFR 51.166(r)(6).  The latter
establishes recordkeeping and reporting requirements for projects when
there is a ‘‘reasonable possibility’’ that a project that is not
part of a major modification may result in a significant emissions
increase and the owner has elected to use projected actual emissions for
calculating the emissions increase.

At the time of these revision submittals and in the original federal
reform rule, the proposed change to the federal rule at the time of this
revision submittal, the ‘‘reasonable possibility’’ standard
requires that a source keep records if it meets the following three
requirements:

(i)	The source projects post-change actual emissions and does not use
the actual to potential test

(ii) 	The source determines that the change would not trigger major NSR.


(iii) 	The source nevertheless believes that there is a reasonable
possibility that the change may significantly increase emissions.

If the project increased design capacity or PTE of any regulated NSR
pollutant, the recordkeeping and reporting requirements apply for 10
years instead of 5 years.  More specifically, if a project has a
reasonable possibility of resulting in a significant emissions increase,
then a source must: 

(1)	Keep certain records that are created before construction
(description of the project, identification of emissions units affected
by the project, and a description of the applicability test); and 

(2)	Monitor emissions, calculate annual emissions, and maintain records
of emissions for 5 years (or 10 years in certain cases) once the change
is completed. If the change’s annual emissions for a calendar year
exceed the baseline by a significant amount and also differ from the
projection, then a source is also required to report emissions for the
calendar year.

Virginia’s rules are consistent with the framework outlined above with
two exceptions.  First, the federal rules require that while all source
categories must create the preconstruction records described in
paragraph (1) above, only electric generating units (EGUs) must submit
these records to the permitting authority 30 days prior to initiating
construction.  Virginia’s rules are the same for EGUs, but all sources
are required to “provide notice of the availability of the information
set out in subdivision B1 of this section to the board no less than 30
days before beginning actual construction.”   However, in this same
subsection, the rule provides that “Nothing in this subsection shall
be construed to require the owner of the source to obtain any
determination from the board before beginning actual construction.”

EPA believes that this variation from the federal rule has no impact on
approvability or the State’s ability to achieve the goals of NSR
reform.  The federal rules for major NSR do not interface with, but must
co-exist with section 110 of the CAA which requires all States to have a
minor NSR program in place for the very purpose of reviewing changes
that are not covered under the major NSR program.  Unlike the federal
rules, some States have codified both major and minor NSR provisions in
the same part of their regulations.  In a similar manner, EPA would not
disapprove Virginia’s requirement for notification that a project
meets the “reasonable possibility” standard simply because this
notification is codified in their major NSR rules rather than their
minor NSR rules.   The effect would be the same regardless of where the
provision occurs, and implementation would be similar to what is
required in any State that has a minor NSR program.  

Another aspect in which Virginia’s rule varies from the federal rule
is that in addition to requiring notification if a project meets the
reasonable possibility standard, subsection E of the 9 VAC 5-80-1785
states that:

“Should subsequent information become available to the board to
indicate that a given project subject to subsection B is a part of a
major modification that resulted in a significant emissions increase,
the board will proceed as if the owner is in violation of 9 VAC
5-80-1625 A and may institute appropriate enforcement action as provided
in subsection A of this section.”

Although EPA has not codified its enforcement response to the NSR reform
measures, the preamble to the December 2002 rule is very clear as to how
or when a violation would be deemed to occur:

As noted above, today we are taking final action on five changes to the
NSR program that create alternative means of determining NSR
applicability for projects that begin actual construction after these
provisions become effective in your jurisdiction.  If you are
subsequently determined not to have met any of the obligations of these
new alternatives (for example, failure to meet emissions or
applicability limits, properly project emissions), you will be subject
to any applicable enforcement provisions (including the possibility of
citizens’ suits) under the applicable sections of the Act.  Sanctions
for violations of these provisions may include monetary penalties of up
to $27,500 per day of violation, as well as the possibility of
injunctive relief, which may include the requirement to install air
pollution controls.”  (67 FR 80190).

Virginia’s rules mirror EPA’s preamble language in recognizing that
if a facility begins to construct and/or operate a project and has
failed to accurately calculate applicability for NSR, the facility is in
violation of the NSR rules and will be subject to appropriate
enforcement.  Therefore, we believe that Virginia’s reasonable
possibility standard is consistent with EPA’s understanding of how the
2002 NSR reform measures are to be implemented and enforced.

9 VAC 5-80-1865.  Actuals plantwide applicability limits (PALs).

Virginia has adopted all of the federal PAL provisions with the
exception of the PAL term and the method for establishing baseline
actual emissions.  These variations from the federal rules have been
discussed under the definitions for “PAL effective period” and
“baseline actual emissions” and will not be restated here.  

9 VAC 5-80-1925.  Changes to permits.

9 VAC 5-80-1935.  Administrative permit amendments.

9 VAC 5-80-1945.  Minor permit amendments.

9 VAC 5-80-1955.  Significant amendment procedures.

9 VAC 5-80-1965.  Reopening for cause.

These administrative provisions were added to Virginia’s PSD
regulations to make them consistent with their major nonattainment NSR
permitting program and to incorporate mechanisms that would allow PSD
permits to be revised.  The federal rules do not have any administrative
mechanisms for making changes to NSR permits after they are issued, but
the Region often hears from its States that they need a way to correct
errors and make minor permit adjustments. Virginia has adopted a program
that is similar to a title V operating permit.  In our comments on the
State’s proposed rule we requested clarification as to how these
permit rules were to be implemented on a project by project basis.  

Virginia’s responded that their NSR program consists of several
regulations: two for major NSR, one for minor NSR, and one for major
HAPs.  It is possible that an individual source could simultaneously
need permits for the purposes of PSD, minor NSR, and HAPs.  In the
interest of efficiency, the State created provisions that would allow
owners to have a single application for these permits, and to allow the
agency to issue a single permit.  Based on an example that the Region
raised to the State in our comments, it appears that when a facility has
obtained one of these NSR permits and plans to undergo a new project,
the State will either issue a new permit for that project, or amend the
existing permit to reflect the modification.  While we believe that at
first glance Virginia’s permit programs are somewhat confusing, we
believe that the State has the discretion to tailor their administrative
approach to their own needs so long as the program meets the
requirements of 40 CFR 51.166.  Therefore, these are acceptable
revisions to their SIP.  

9 VAC 5-80-1985.  Permit invalidation, suspension, revocation, and
enforcement.

This section was modified to restructure the subsections, add
subsections and make revisions to existing subsections as described
below.  These revisions are consistent with 40 CFR 51.166.

Old Subsection	New Subsection	Description

	A	New - requires continuous construction w/n 18 months of permit
issuance.

	B	New – invalidates permit if construction halted for 18 months or
more or if construction is not completed w/n a reasonable time.

	C	New - the above periods may be extended at discretion of the board.

	D	New – source must construct and operate according to application.

A	E	Minor word changes.

B	F	Minor word changes.

C	G	Minor word changes.

	H	New – general duty to comply with permit.

D	I	Minor word changes.

E	J	Minor word changes.



9 VAC 5-80-1995.  Existence of permit no defense.

This section ensures that facilities must comply with all applicable
regulations, laws, ordinances, and orders of the governmental entities
having jurisdiction, which is consistent with 40 CFR 51.166.  

Miscellaneous Changes

No substantive changes, other than minor word changes, have been made to
the following sections.

9 VAC 5-80-1635.  Ambient air increments.

9 VAC 5-80-1645.  Ambient air ceilings

9 VAC 5-80-1665.  Compliance with local zoning requirements.

9 VAC 5-80-1725.  Air quality models.

9 VAC 5-80-1735.  Air quality analysis.

9 VAC 5-80-1745.  Source information.

9 VAC 5-80-1755.  Additional impact analysis.

9 VAC 5-80-1765.  Sources affecting federal class I areas – additional
requirements.

9 VAC 5-80-1795.  Environmental impact statements.

9 VAC 5-80-1805.  Disputed permits.

9 VAC 5-80-1815.  Interstate pollution abatement.

9 VAC 5-80-1825.  Innovative control technology.

9 VAC 5-80-1975.  Transfer of permits.

Chapter 80, Article 9 – Permits for Major Stationary Sources and Major
Modifications Locating in Nonattainment Areas

These regulations were originally codified in the approved SIP in
sections 9 VAC 5-80-2000 through 9 VAC 5-80-2190.  Virginia has added or
deleted sections in the last few State regulatory revisions as indicated
in the following tables.  Changes were made to the Commonwealth’s
nonattainment new source review regulations in three different revision
submittals as shown below, dated 09/01/06 (State Revision E03), 12/01/04
(State Revision G04), and 05/01/02 (State Revision DOO).  See Attachment
2:  Nonattainment NSR State Regulatory Revision Packages E03, G04 and
DOO Comparison Matrix for a full description of the changes made in
regulatory text.  This revision approval will approve regulatory
revisions established in all three of these revision submittals from the
VADEQ.  State Revision G04 was approved in 71 FR 39570 on July 13, 2006.
 In addition, Virginia has added new provisions to address the
administrative process for applying for and obtaining a permit to
construct that meshes with their existing permitting programs.  

Table 1.	No Citation Numbering Changes

Current SIP Citation	New Citation E03

09/01/06	Citation from G04 (Ozone Transportation Region)

12/01/04 SIP approved 	Citation from DOO

05/01/02, (not yet SIP approved)	Title

5-80-2000	5-80-2000	5-80-2000	5-80-2000	Applicability

5-80-2010	5-80-2010	5-80-2010	5-80-2010	Definitions

5-80-2020	5-80-2020

5-80-2020	General

5-80-2030	5-80-2030

5-80-2030	Applications

5-80-2040	5-80-2040

5-80-2040	Application Information Required

5-80-2050	 5-80-2050

5-80-2050	Standards and conditions for granting permits

5-80-2060	5-80-2060

5-80-2060	Action on permit applications

5-80-2070	5-80-2070

5-80-2070	Public participation

5-80-2080	5-80-2080

5-80-2080	Compliance determination and verification by performance
testing

5-80-2090	5-80-2090

5-80-2090	Application review and analysis

5-80-2110	5-80-2110

5-80-2110	Interstate Pollution abatement

5-80-2120	5-80-2120

5-80-2120	Offsets

5-80-2130	5-80-2130

5-80-2130	De minimus Increases and stationary source modification
alternatives for ozone nonattainment areas classified as serious or
severe in 9 VAC 5-20-204

5-80-2140	5-80-2140

5-80-2140	Exception

5-80-2150	5-80-2150

5-80-2150	Compliance with local zoning requirements

5-80-2170	5-80-2170

5-80-2170	Transfer of Permits

5-80-2180	5-80-2180

5-80-2180	Permit invalidation, revocation and enforcement

5-80-2190	5-80-2190

5-80-2190	Existence of permit no defense



Table 2.	Rules Repealed

Current SIP Citation	New Citation E03

09/01/06	Citation from G04 - OTR

12/01/04	Citation from DOO

05/01/02	Title

5-80-2100

Circumvention	5-80-2100

Repealed

5-80-2100 Repealed	Repealed

5-80-2160

Reactivation &

Permanent Shutdown	5-80-2160

Repealed

5-80-2160

Repealed	Repealed



Table 3.	Rules Added

New Citation E03

09/01/06	Citation from G04 –OTR approval

12/01/04	Citation from DOO

05/01/02	Title

5-80-2091

	Source Obligation

5-80-2144

	Actuals plantwide applicability limits (PALs)

5-80-2200	*	New	Changes to Permits

5-80-2210	*	New	Administrative Permit amendments

5-80-2220	*	New	Minor Permit Amendments

5-80-2230	*	New	Significant amendment procedures

5-80-2240	*	New	Reopening for cause

*These regulations were already present in the State’s regulations for
Revision G04 – Originally requested for SIP approval under the DOO
submittal which was not yet approved.   

9 VAC 5-80-2000 Applicability

The following is a brief summary of the changes to 5-80-2000:

Subsection	Status	Description

A	Modified	Minor updates to text.

B	Modified	Minor updates to text.

C	New	This section was added in the last SIP approval adding the Ozone
Transport Region.  New addition further adds clarification subjecting
sources in the Ozone Transport Region to offset requirements. 

D	Unchanged

	E	Modified 	Minor word changes for clarification Older Section was
replaced with this new section….previously F

F	New	New Section – Old section F was deleted in Revision E03 -
updated effective date of rule

G	New	Added provision prohibiting circumvention through pattern of
ownership/development.

H	New	New applicability section explaining two-part NSR reform test and
method of calculation for each type of unit. 

I	New	Applicability of PAL provisions

J	New	Limits IBR when citing 40 CFR Parts 60, 61 and 63

K	New	Limits IBR when citing 40 CFR Parts 51 and 58



These revisions are primarily updates to the rules with respect to
correct citations, consistency with definitions and the rule effective
date.  The new provisions were specifically added to meet the minimum
program elements under the December 2002 federal reform rules.   These
new sections are the same provisions contained in 40 CFR part
51.165(A)(2)(ii)(A) through (F), except for (E), which was vacated by
the Third Circuit decision.  Changes were made in both the DOO and G04
State revisions as noted above.

9 VAC 5-80-2010  Definitions.

The following table briefly summarizes the changes to this section of
Article 9.

Subsection	Status	Description

A	Unchanged

	B	Unchanged

	C	Modified	See below.



Many of the definitions currently in the SIP have been revised and many
terms have been added to accommodate the NSR reform regulations.  In
addition, Virginia has updated the text of some definitions and added
definitions that have existed in the federal program for many years
prior to NSR reform.  The following table summarizes the changes that
have been made.  Those terms appearing in bold text are NSR reform
minimum program elements.  Changes were made in both DOO and G04 State
regulatory revisions.  Unless otherwise noted in the discussion below,
all other modifications to definitions are grammatical or citation
corrections or otherwise minor changes:

Modified definitions	“Actual emissions”, “allowable emissions”,
“applicable federal requirement”, “construction”, “emissions
unit”, “federally enforceable”, “major modification”, “major
stationary source”, “necessary preconstruction approvals and
permits”, “net emissions increase”, “potential to emit”,
“reasonable further progress”, “regulated NSR pollutant”,
“significant” “stationary source”.

New definitions	“Actuals PAL for a major stationary source”,
“baseline actual emissions”, “ best available control
technology”, “clean coal technology”, “clean coal technology
demonstration project”, “continuous emissions monitoring system”,
“continuous emissions rate monitoring system”, “continuous
parameter monitoring system”, “electric utility steam generating
unit”, “emissions cap”, “enforceable as a practical matter”,
“federal land manager”, “federal operating permit”, federal
operating permit program”, “major emissions unit”, “major new
source review (NSR) permit”, “major new source review permit
program”, “minor new source review (NSR) permit”, “minor new
source review (NSR) program”, “new source review (NSR) permit”,
“new source review program”, “Nonattainment major new source
review (NSR) program”, “Ozone Transport Region”,  “plantwide
applicability limitation (PAL)”, “PAL effective date”, PAL
effective period”, “PAL major modification”, “PAL permit”,
“PAL pollutant”, “predictive emissions monitoring system”,
“Prevention of Significant Deterioration (PSD)program,”
“project”, “projected actual emissions”, “public comment
period”, “significant emissions increase”, significant emissions
unit”, “small emissions unit”, “state enforceable”, “state
operating permit”, “state operating permit program”, “synthetic
minor”, “temporary clean coal technology demonstration project”.



Except for the changes made to implement NSR reform, these definition
changes reflect minor word changes (e.g. changing “which” to
“that”), changes in citation or are updates that occurred in prior
SIP submittals prior to submittal of Virginia’s NSR reform rules that
EPA has not yet processed.  Virginia has also added terms that are
intended to help implement their state permit programs in general.  EPA
is proposing limited approval of these revisions and additions,
including definitions for terms that differ from the federal rules. 
Significant departures from the federal rules and EPA’s limited
approval of these deviations were explained in greater detail in the
above Section under 9 VAC 5-80-1615, completed for Article 8. 

9 VAC 5-80-2020  General

The following is a brief summary of the revisions to this section. 
These revisions are all administrative in nature and tailored to
Virginia’s permitting framework.  They do not change or affect any
minimum program elements established in 40 CFR part 51.165 and are
acceptable revisions to the SIP.

Subsection	Status	Description

A	Modified	Minor text changes

B	Modified	Minor text changes

C	Modified	Minor text changes

D	New	This was added by Revision DOO – conditions of any permit are
federally enforceable and then updated with Revision E03 to include PAL 


E	New	This was added by Revision DOO – state only enforceable
provisions

F	  New	This was added by Revision DOO – nothing will prohibit the
board to grant permits in planned incremental phases



9 VAC 5-80-2030 Applications.

The following table outlines the revisions to this section.  These
changes are administrative changes that do not affect any minimum
program element of the federal NSR program and are acceptable revisions
to the SIP.  

Subsection	Status	Description

A	Modified	Minor text changes.

B	New 	This was added by Revision DOO – requirement for separate
applications for each stationary source was moved from under Section A.
to Section B.

C	Modified	Previous Section B – no text changes

D	Modified	Previous Section C… Minor text changes to adhere to
Virginia regulatory format.  Revision DOO deletes SIP approved citations
C1 -  3  and instructs sources to a different location in the State
regulations for same provisions.  

Revision DOO deletes previously approved Section D and E in their
entirety.



9 VAC 5-80-2040  Application Information Required.

These revisions are approvable SIP revisions.

Subsection	Status	Description

A	New	Board will furnish applications

B	Modified	Minor text changes “air” pollutant to “NSR pollutant”

C	Modified	Minor text changes “shall” to “will”



9 VAC 5-80-2050  Standards and conditions for granting permits.

These revisions are acceptable SIP revisions.  Section B of the SIP
approved regulations has been deleted in Revision E03 and has been
replaced with Section C.  Former Section C is now Section B and former
Section D is now the new Section C. 

Subsection	Status	Description

A	Modified	Minor text changes for clarification.

B	New	Former section C under DOO Revision. Revision E03 deletes former
Section B.   Criteria for establishing emissions standards to assure
that emissions levels are enforceable as a practical matter.

C	New	Former section D under DOO revision.  Revision E03 deletes parts
of this section.  This Section describes the elements to ensure that
permits are enforceable as a practical matter.  



9 VAC 5-80-2060  Action on permit applications.

The following table describes how the section has been changed.  These
revisions are acceptable SIP revisions.

Subsection	Status	Description

A	Modified	Minor text changes… “shall” to “will”

B	Unchanged

	C	Modified	Minor text changes … “shall” to “will”

D	Unchanged

	E	Unchanged

	

9 VAC 5-80-2070  Public participation.

There are minor changes in text.  These revisions are acceptable SIP
revisions.

Subsection	Status	Description

A	Unchanged

	B	Unchanged

	C	Unchanged

	D	Unchanged

	E	Unchanged

	F	Modified	Minor text changes … “shall” to “will”

G	Modified	State will process permit application under this article
using the public participation requirements of same article.

H	Unchanged

	

9 VAC 5-80-2080 Compliance determination and verification by performance
testing.

Generally, this section has been revised to reflect new citations and to
remove outdated provisions regarding hazardous air pollutants.  Revision
DOO made text changes (revisions) and Revision E03 retained all the
revisions that were already made previously. These are acceptable
revisions to the SIP.

Subsection	Status	Description

A	Modified	Modifications were made in previous regulatory submittal
Revision DOO dated 5/1/02 but were not SIP approved. Minor text changes.
 Revision E03 has no text changes

B	Modified	Modifications were made in previous regulatory submittal
Revision DOO dated 5/1/02 but were not SIP approved. Former Section C of
SIP approved regulations.  Original Section B was deleted.  Minor text
changes.  Revision E03 has no text changes

C	Modified	Modifications were made in previous regulatory submittal
Revision DOO dated 5/1/02 but were not SIP approved. Minor text changes.
 Revision E03 has no text changes

D	Modified	Modifications were made in previous regulatory submittal
Revision DOO dated 5/1/02 but were not SIP approved.  Minor text
changes.  Revision E03 has no text changes

E	New 	Section E was added in previous regulatory submittal Revision DOO
dated 5/1/02 but were not SIP approved.  Granting a waiver under this
section does not shield the source from potential enforcement.  
Revision E03 has no text changes



9 VAC 5-80-2090 Application review and analysis.

These are acceptable revisions to the SIP.

Subsection	Status	Description

A	Modified	Minor text changes.



9 VAC 5-80-2091 Source obligation.

Source obligation - This section has been added to incorporate the
remaining elements of NSR reform and to tailor those elements to a
program that meets Virginia’s objectives with respect to oversight.  

Subsection	Status	Description

A	New	Sources or modified sources operating in accordance with this
article are subject to enforcement

B	New	Reasonable possibility

C	New	The owner shall make information available

D	New	Approval to construct does not relieve owner’s responsibility to
meet all other requirements under local, state or federal law

E	New	Requirements for owners subject to Section B (above) of 5-80-2091



Significant departures from the federal rules and EPA’s approval of
these deviations were explained in greater detail in the above Section
under 9 VAC 5-80- 1785, completed for Article 8 and will not be restated
here. 

9 VAC 5-80-2100 Repealed.

9 VAC 5-80-2110  Interstate pollution abatement .

These are acceptable revisions to the SIP.

Subsection	Status	Description

A	Modified	Minor text changes – deletes word “reconstruction”

B	Unchanged

	C	Modified	Minor text changes – deletes word “reconstruction”



9 VAC 5-80-2120 Offsets.

These are acceptable revisions to the SIP.

Subsection	Status	Description

A	Unchanged

	B	Unchanged

	C	Unchanged

	D	Modified	Minor text changes – “shall” to “will”

E	Unchanged

	F	Unchanged

	G	Unchanged

	H	Unchanged

	I	Unchanged

	J	Unchanged

	K	Unchanged

	L	New	Major modification offset requirements for determining total
tonnage of increased emissions shall be offset in accordance with
requirements of Section 173 of the Clean Air Act. 



9 VAC 5-80-2130 De minimus increase and stationary source modification
alternatives for ozone nonattainment areas classified as serious or
severe in 9 VAC 5-20-204.

These are acceptable revisions to the SIP.

A	Modified	Minor text changes.

B	Unchanged

	C	Unchanged

	

9 VAC 5-80-2140 Exception.

These are approvable revisions to the SIP.

Subsection	Status	Description

A	Modified	Minor word text changes.  In lieu of referencing Clean Air
Act, it now references the Code of Federal Regulations citation.



9 VAC 5-80-2144 Actuals plantwide applicability limits (PALs).

Virginia has adopted all of the federal PAL provisions with the
exception of the PAL term and the method for establishing baseline
actual emissions.  These variations from the federal rules have been
discussed under the definitions for “PAL effective period” and
“baseline actual emissions” for Article 8, above and will not be
restated here.  

9 VAC 5-80-2150 Compliance with local zoning requirements.

These are approvable revisions to the SIP.

Subsection	Status	Description

A	Modified	Minor word text changes.  



9 VAC 5-80-2160 Repealed.

9 VAC 5-80-2170 Transfer of Permits.

This version of text is approved in the current State SIP.

Subsection	Status	Description

A	Unchanged

	B	Unchanged

	C	Unchanged

	

9 VAC 5-80-2180 Permit invalidation, revocation and enforcement.

This section was modified to restructure the subsections, add
subsections and make revisions to existing subsections as described
below.  These revisions are consistent with 40 CFR 51.165.

Subsection	Status	Description

A	Modified	Minor text changes – deleted word “reconstruction”

Section A deletes text which allowed nine months from last date of
issuance of last permit or nine months from last date of the last
resolution of any litigation concerning ay such payments or
authorizations – the regulation now only allows 18 months from the
date the permit is granted for commencement of construction. 

B	Modified	Minor text changes – deleted word “reconstruction”

C	Unchanged

	D	Unchanged

	E	Unchanged

	F	Unchanged

	G	Unchanged

	H	New	Permittee shall comply with terms and conditions of the permit
and any permit noncompliance constitutes a violation and is ground for
enforcement or revocation 

I	Modified	Minor text changes made with Revision DOO – changed wording
from “these regulations” to “the regulations of the board”

J	Unchanged

	

9 VAC 5-80-2190 Existence of permit no defense.

This section ensures that facilities must comply with all applicable
regulations, laws, ordinances, and orders of the governmental entities
having jurisdiction, which is consistent with 40 CFR 51.165.  

Subsection	Status	Description

A	Modified	Minor text changes.



9 VAC 5-80-2200  Changes to permits.

9 VAC 5-80-2210  Administrative permit amendments.

9 VAC 5-80-2220  Minor permit amendments.

9 VAC 5-80-2230  Significant amendment procedures.

9 VAC 5-80-2240  Reopening for cause.

These administrative provisions were added to Virginia’s PSD
regulations to make them consistent with their major nonattainment NSR
permitting program and to incorporate mechanisms that would allow PSD
permits to be revised.  The federal rules do not have any administrative
mechanisms for making changes to NSR permits after they are issued, but
the Region often hears from its States that they need a way to correct
errors and make minor permit adjustments. Virginia has adopted a program
that is similar to a title V operating permit.  In our comments on the
State’s proposed rule we requested clarification as to how these
permit rules were to be implemented on a project by project basis.  

Virginia’s responded that their NSR program consists of several
regulations: two for major NSR, one for minor NSR, and one for major
HAPs.  It is possible that an individual source could simultaneously
need permits for the purposes of PSD, minor NSR, and HAPs.  In the
interest of efficiency, the State created provisions that would allow
owners to have a single application for these permits, and to allow the
agency to issue a single permit.  Based on an example that the Region
raised to the State in our comments, it appears that when a facility has
obtained one of these NSR permits and plans to undergo a new project,
the State will either issue a new permit for that project, or amend the
existing permit to reflect the modification.  While we believe that at
first glance Virginia’s permit programs are somewhat confusing, we
believe that the State has the discretion to tailor their administrative
approach to their own needs so long as the program meets the
requirements of 40 CFR 51.165.  Therefore, we approve these revisions to
their SIP.  

Miscellaneous Changes

No substantive changes, other than minor word changes, have been made to
the following sections as noted above

9 VAC 5-80-2090.  Application review and analysis.

9 VAC 5-80-2110.  Interstate pollution abatement.

9 VAC 5-80-2130.  De minimus Increases and stationary source
modification …                                                        
                                                      

9 VAC 5-80-2140.  Exception.

9 VAC 5-80-2150.  Compliance with local zoning requirements.

9 VAC 5-80-2190.  Existence of permit no defense.

No Regulatory Text Changes

9 VAC 5-80-2170.  Transfer of permits.

VI.	CONCLUSION

	Based on the above analysis, EPA has determined that the amendments to
Virginia’s Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NSR) construction permit programs at
Article 4, Article 8 and Article 9, as submitted on October 10, 2006 and
February 12, 2007, basically meet the minimum requirements of 40 CFR
51.165 and 51.166 and the Clean Air Act, as a limited revision approval
to the Virginia SIP.

VII.  	RECOMMENDED AGENCY ACTION

	I recommend that the amended Article 4 - “Standards of Performance
for Stationary sources”, Article 8 - “Permits for Construction and
Major Modification of Major Stationary Sources of Air Pollution for the
Prevention of Significant Deterioration (PSD)” and Article 9 -
“Permits for Construction and Major Modification of Major Stationary
Sources of Air Pollution Which Cause or Contribute to Nonattainment”
be provided limited approval, respectively as revisions to strengthen
the current Virginia SIP. 

Attachments

VADEQ Technical Support Document to SIP Revision E03

Nonattainment NSR State Regulatory Revision Packages E03, G04 and DOO
Comparison Matrix

 Note that EPA has determined that the concept of contemporaneity does
not apply to PALs because PALs use a different means for calculating how
and when an emissions increase will occur.  Under the non-PAL provisions
of the federal rule, increases and decreases are calculated for
individual emissions units in order to arrive at a net figure for the
entire facility.  A PAL is based on an emissions increase over the
source-wide baseline actual emissions.  If a source’s emissions equals
or exceeds the PAL then an increase has occurred.  There is no
unit-by-unit assessment of increases and decreases over time.     

 In fact, the facility probably could not make this demonstration, given
the way that emission increases and decreases are calculated in the
definition of “net emissions increase” in 40 CFR Part 51.  

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