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Volume 31, Issue 11 Virginia Register of Regulations January 26, 2015

933

REGULATIONS

TITLE 9. ENVIRONMENT

STATE AIR POLLUTION CONTROL BOARD

Fast-Track Regulation

Title of Regulation: 9VAC5-10. General Definitions 

(Rev. H13) (amending 9VAC5-10-20). 

Statutory Authority: § 10.1-1308 of the Code of Virginia.

Public Hearing Information: No public hearings are 

scheduled.

Public Comment Deadline: February 25, 2015.

Effective Date: March 12, 2015. 

Agency Contact: Karen G. Sabasteanski, Department of 

Environmental Quality, 629 East Main Street, P.O. Box 1105, 

Richmond, VA 23218, telephone (804) 698-4426, FAX (804) 

698-4510, TTY (804) 698-4021, or email 

karen.sabasteanski@deq.virginia.gov.

Basis: Section 10.1-1308 of the Virginia Air Pollution 

Control Law (Chapter 13 (§ 10.1-1300 et seq.) of Title 10.1 

of the Code of Virginia) authorizes the State Air Pollution 

Control Board to promulgate regulations abating, controlling, 

and prohibiting air pollution in order to protect public health 

and welfare. 

Federal Requirements: Section 109(a) of the federal Clean 

Air Act requires the U.S. Environmental Protection Agency 

(EPA) to prescribe national ambient air quality standards 

(NAAQS) to protect public health. Section 110 mandates that 

each state adopt and submit to EPA a state implementation 

plan (SIP) that provides for the implementation, maintenance, 

and enforcement of the NAAQS. Ozone, one of the pollutants 

for which there is a NAAQS, is in part created by emissions 

of volatile organic compounds (VOCs). Therefore, in order to 

control ozone, VOCs must be addressed in Virginia's SIP. 

40 CFR Part 51 sets out requirements for the preparation, 

adoption, and submittal of SIPs. Subpart F of Part 51, 

Procedural Requirements, includes § 51.100, which consists 

of a list of definitions. 40 CFR 51.100 contains a definition of 

VOC. This definition is revised by EPA to add or remove 

VOCs as necessary. If, for example, it can be demonstrated 

that a particular VOC is "negligibly reactive"--that is, if it can 

be shown that a VOC is not as reactive and therefore does not 

have a significant effect on ground-level or upper 

atmospheric ozone--then EPA may remove that substance 

from the definition of VOC.

EPA originally proposed approval of a revision to the 

definition of VOC in 40 CFR 51.100 to exclude trans 1-

chloro-3,3,3-trifluoroprop-1-ene (also known as SolsticeTM

1233zd(E)) on February 15, 2013 (78 FR 11101). On August 

28, 2013 (78 FR 53029), EPA finalized this change to the 

VOC exemption list, which became effective on September 

27, 2013. On October 22, 2013 (78 FR 62451), EPA further 

revised the definition of VOC to exclude 2,3,3,3-

tetrafluoropropene (also known as HFO-1234yf), which 

became effective on November 21, 2013.

State Requirements: These specific amendments are not 

required by state mandate. Rather, Virginia's Air Pollution 

Control Law gives the State Air Pollution Control Board the 

discretionary authority to promulgate regulations "abating, 

controlling and prohibiting air pollution throughout or in any 

part of the Commonwealth" (§ 10.1-1308 A of the Code of 

Virginia). The law defines such air pollution as "the presence 

in the outdoor atmosphere of one or more substances which 

are or may be harmful or injurious to human health, welfare 

or safety, to animal or plant life, or to property, or which 

unreasonably interfere with the enjoyment by the people or 

life or property" (§ 10.1-1300 of the Code of Virginia).

Purpose: The purpose of the regulation (general definitions) is 

not to impose any regulatory requirements in and of itself, but 

to provide a basis for and support to other provisions of the 

board's regulations for the control and abatement of air 

pollution, which are in place in order to protect public health 

and welfare. The proposed amendments are being made to 

ensure that the definition of VOC, which is crucial to most of 

the regulations, is up to date and scientifically accurate, as 

well as consistent with the overall EPA requirements under 

which the regulations operate.

Rationale for Using Fast-Track Process: The definition of 

VOC is being revised to add two less-reactive substances to 

the list of compounds not considered to be VOCs. As 

discussed elsewhere, these amendments are not expected to 

affect a significant number of sources or have any significant 

impact, other than a positive one, on air quality overall. 

Additionally, removal of these substances at the federal level 

was accompanied by detailed scientific review and public 

comment. Therefore, no additional information on the 

reactivity of these substances or the appropriateness of their 

removal is anticipated.

Substance: The general definitions impose no regulatory 

requirements in and of themselves but provide support to 

other provisions of the board's regulations for the control and 

abatement of air pollution. The list of substances not 

considered to be VOCs in Virginia has been revised to 

include trans 1-chloro-3,3,3-trifluoroprop-1-ene (also known 

as SolsticeTM 1233zd(E)) and 2,3,3,3-tetrafluoropropene (also 

known as HFO-1234yf).
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Issues: The general public health and welfare will benefit 

because the revisions may encourage the use of the delisted 

substances in place of products containing more reactive and 

thereby more polluting substances. These substances are 

considered to be negligibly reactive in the formation of 

ground level (tropospheric) ozone and will not deplete upper 

level (stratospheric) ozone. Therefore, these substances do not 

have a negative effect on human health or the environment.

Excluding these substances as VOCs will make it easier and 

less expensive for industry to use them. Companies that use 

these substances in place of more reactive substances may 

also benefit by reducing their VOC emissions and 

concomitant reductions in permitting and other regulatory 

requirements.

The amendments will allow the department to focus VOC 

reduction strategies on substances that have a negative impact 

on human health and the environment.

There are no known disadvantages to the public, the 

department, or the Commonwealth.

Department of Planning and Budget's Economic Impact 

Analysis: 

Summary of the Proposed Amendments to Regulation. The 

State Air Pollution Control Board (Board) proposes to revise 

the definition of volatile organic compound (VOC) to include 

trans 1-chloro-3,3,3-trifluoroprop-1-ene and 2,3,3,3-

tetrafluoropropene on the list of compounds not considered to 

be VOC.

Result of Analysis. The benefits likely exceed the costs for all 

proposed changes.

Estimated Economic Impact. The general definitions of 

9VAC5-10 impose no regulatory requirements in and of 

themselves, but provide support to other Board regulations. 

The U.S. Environmental Protection Agency has revised the 

definition of VOC to add two compounds that have been 

demonstrated to be less reactive to the list of compounds that 

are not considered to be VOCs: trans 1-chloro-3,3,3-

trifluoroprop-1-ene (also known as SolsticeTM 1233zd(E)) and 

2,3,3,3-tetrafluoropropene (also known as HFO-1234yf). 

Consequently, the Board proposed to update the list of 

compounds not considered to be VOC.

Trans 1-chloro-3,3,3-trifluoroprop-1-ene may be used in 

insulation foams as blowing agent in insulating foams for 

refrigerators/freezers/hot water heaters and 2,3,3,3-

tetrafluoropropene may be used as refrigerant in commercial 

chillers and waste heat recovery systems. The Department of 

Environmental Quality is not aware of any sources located in 

Virginia that currently use these substances. There are sources 

that may someday eventually wish to use them; however, 

DEQ has not identified any specific sources that plan to do 

so.

The general public health and welfare may benefit because 

the revision may encourage the use of these compounds in 

place of products containing more reactive, and thereby more 

polluting, substances. Due to their low photochemical 

reactivity, these compounds are considered to be negligibly 

reactive in the formation of tropospheric (ground level) ozone 

and are not expected to contribute to violations of the federal 

national ambient air quality standards. These compounds are 

not hazardous air pollutants, and will not deplete stratospheric 

(upper atmosphere) ozone. Therefore, they do not have a 

negative effect on human health or the environment.

Excluding these compounds as VOCs will make them easier 

and less expensive for industry to use. Companies that use 

these compounds in place of more reactive substances may 

also benefit by reducing their VOC emissions and 

concomitant reductions in permitting and other regulatory 

requirements. Thus, the proposal to add these compounds to 

the list of substances not considered to be VOC will create a 

net benefit.

Businesses and Entities Affected. One of these compounds 

may be used in insulation foams as blowing agent in

insulating foams for refrigerators/freezers/hot water heaters 

and the other may be used as refrigerant in commercial 

chillers and waste heat recovery systems. Consequently, the 

proposal to add them to the list of substances not considered 

to be VOC will potentially affect firms which may start 

manufacturing products that contain these compounds.

Localities Particularly Affected. The proposal to add two new 

compounds to the list of substances not considered to be VOC 

does not have a disproportionate effect on any particular 

localities. 

Projected Impact on Employment. The proposed amendment 

will not likely have a large impact on employment.

Effects on the Use and Value of Private Property. The 

proposal to add two new compounds to the list of substances 

not considered to be VOC will have no immediate impact 

since currently there are no known firms located in Virginia 

that currently use these compounds. Adding these compounds 

to the list of substances not considered to be VOC will make 

them less costly to use, which may encourage firms to start 

using them in production. Thus, the proposed amendment 

may eventually affect some firms production methods, lower 

their costs, and consequently moderately increase firm value. 

Small Businesses: Costs and Other Effects. The proposal to 

add two new compounds to the list of substances not 

considered to be VOC will have no immediate impact since 

currently there are no known firms located in Virginia that 

currently use these compounds. Adding them to the list of 

substances not considered to be VOC will make them less 

costly to use. Thus, some small firms may eventually use 

these compounds to lower costs. 

Small Businesses: Alternative Method that Minimizes 

Adverse Impact. The proposed amendment will not adversely 

affect small businesses.
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Real Estate Development Costs. The proposed amendment 

will not likely have a large impact on real estate development 

costs.

Legal Mandate. The Department of Planning and Budget 

(DPB) has analyzed the economic impact of this proposed 

regulation in accordance with § 2.2-4007.04 of the 

Administrative Process Act and Executive Order Number 14 

(10). Section 2.2-4007.04 requires that such economic impact 

analyses include, but need not be limited to, a determination 

of the public benefit, the projected number of businesses or 

other entities to whom the regulation would apply, the 

identity of any localities and types of businesses or other 

entities particularly affected, the projected number of persons 

and employment positions to be affected, the projected costs 

to affected businesses or entities to implement or comply with 

the regulation, and the impact on the use and value of private 

property. Further, if the proposed regulation has an adverse 

effect on small businesses, § 2.2-4007.04 requires that such 

economic impact analyses include (i) an identification and 

estimate of the number of small businesses subject to the 

regulation; (ii) the projected reporting, recordkeeping, and 

other administrative costs required for small businesses to 

comply with the regulation, including the type of professional 

skills necessary for preparing required reports and other 

documents; (iii) a statement of the probable effect of the 

regulation on affected small businesses; and (iv) a description 

of any less intrusive or less costly alternative methods of 

achieving the purpose of the regulation. The analysis 

presented above represents DPB's best estimate of these 

economic impacts.

Agency's Response to Economic Impact Analysis: The 

department has reviewed the economic impact analysis 

prepared by the Department of Planning and Budget and has 

no comment.

Summary:

The amendment revises the definition of volatile organic 

compound (VOC) to add trans 1-chloro-3,3,3-

trifluoroprop-1-ene (also known as SolsticeTM 1233zd(E)) 

and 2,3,3,3-tetrafluoropropene (also known as HFO1234yf) to the list of compounds excluded from the 

definition of VOC.

9VAC5-10-20. Terms defined.

"Actual emissions rate" means the actual rate of emissions 

of a pollutant from an emissions unit. In general actual 

emissions shall equal the average rate, in tons per year, at 

which the unit actually emitted the pollutant during the most 

recent two-year period or some other two-year period which 

is representative of normal source operation. If the board 

determines that no two-year period is representative of 

normal source operation, the board shall allow the use of an 

alternative period of time upon a determination by the board 

that it is more representative of normal source operation. 

Actual emissions shall be calculated using the unit's actual 

operating hours, production rates, and types of materials 

processed, stored, or combusted during the selected time 

period.

"Administrator" means the administrator of the U.S. 

Environmental Protection Agency (EPA) or his authorized 

representative.

"Affected facility" means, with reference to a stationary 

source, any part, equipment, facility, installation, apparatus, 

process or operation to which an emission standard is 

applicable or any other facility so designated. The term 

"affected facility" includes any affected source as defined in 

40 CFR 63.2.

"Air pollution" means the presence in the outdoor 

atmosphere of one or more substances which are or may be 

harmful or injurious to human health, welfare or safety; to 

animal or plant life; or to property; or which unreasonably 

interfere with the enjoyment by the people of life or property.

"Air quality" means the specific measurement in the ambient 

air of a particular air pollutant at any given time.

"Air quality control region" means any area designated as 

such in 9VAC5-20-200.

"Alternative method" means any method of sampling and 

analyzing for an air pollutant which is not a reference or 

equivalent method, but which has been demonstrated to the 

satisfaction of the board, in specific cases, to produce results 

adequate for its determination of compliance.

"Ambient air" means that portion of the atmosphere, 

external to buildings, to which the general public has access.

"Ambient air quality standard" means any primary or 

secondary standard designated as such in 9VAC5-30 

(Ambient Air Quality Standards).

"Board" means the State Air Pollution Control Board or its 

designated representative.

"Certified mail" means electronically certified or postal 

certified mail, except that this definition shall only apply to 

the mailing of plan approvals, permits, or certificates issued 

under the provisions of these regulations and only where the 

recipient has notified the department of the recipient's consent 

to receive plan approvals, permits, or certificates by 

electronic mail. Any provision of these regulations requiring 

the use of certified mail to transmit special orders or 

administrative orders pursuant to enforcement proceedings 

shall mean postal certified mail.

"Class I area" means any prevention of significant 

deterioration area (i) in which virtually any deterioration of 

existing air quality is considered significant and (ii) 

designated as such in 9VAC5-20-205.

"Class II area" means any prevention of significant 

deterioration area (i) in which any deterioration of existing air 

quality beyond that normally accompanying well-controlled 

growth is considered significant and (ii) designated as such in 

9VAC5-20-205.
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"Class III area" means any prevention of significant 

deterioration area (i) in which deterioration of existing air 

quality to the levels of the ambient air quality standards is 

permitted and (ii) designated as such in 9VAC5-20-205.

"Continuous monitoring system" means the total equipment 

used to sample and condition (if applicable), to analyze, and 

to provide a permanent continuous record of emissions or 

process parameters.

"Control program" means a plan formulated by the owner of 

a stationary source to establish pollution abatement goals, 

including a compliance schedule to achieve such goals. The 

plan may be submitted voluntarily, or upon request or by 

order of the board, to ensure compliance by the owner with 

standards, policies and regulations adopted by the board. The 

plan shall include system and equipment information and 

operating performance projections as required by the board 

for evaluating the probability of achievement. A control 

program shall contain the following increments of progress:

1. The date by which contracts for emission control system 

or process modifications are to be awarded, or the date by 

which orders are to be issued for the purchase of 

component parts to accomplish emission control or process 

modification.

2. The date by which the on-site construction or installation 

of emission control equipment or process change is to be 

initiated.

3. The date by which the on-site construction or installation 

of emission control equipment or process modification is to 

be completed.

4. The date by which final compliance is to be achieved.

"Criteria pollutant" means any pollutant for which an 

ambient air quality standard is established under 9VAC5-30 

(Ambient Air Quality Standards).

"Day" means a 24-hour period beginning at midnight.

"Delayed compliance order" means any order of the board 

issued after an appropriate hearing to an owner which 

postpones the date by which a stationary source is required to 

comply with any requirement contained in the applicable 

implementation plan.

"Department" means any employee or other representative 

of the Virginia Department of Environmental Quality, as 

designated by the director.

"Director" or "executive director" means the director of the 

Virginia Department of Environmental Quality or a 

designated representative.

"Dispersion technique"

1. Means any technique which attempts to affect the

concentration of a pollutant in the ambient air by:

a. Using that portion of a stack which exceeds good 

engineering practice stack height;

b. Varying the rate of emission of a pollutant according 

to atmospheric conditions or ambient concentrations of 

that pollutant; or

c. Increasing final exhaust gas plume rise by 

manipulating source process parameters, exhaust gas 

parameters, stack parameters, or combining exhaust 

gases from several existing stacks into one stack; or other 

selective handling of exhaust gas streams so as to 

increase the exhaust gas plume rise.

2. The preceding sentence does not include:

a. The reheating of a gas stream, following use of a 

pollution control system, for the purpose of returning the 

gas to the temperature at which it was originally 

discharged from the facility generating the gas stream;

b. The merging of exhaust gas streams where:

(1) The owner demonstrates that the facility was 

originally designed and constructed with such merged 

gas streams;

(2) After July 8, 1985, such merging is part of a change 

in operation at the facility that includes the installation of 

pollution controls and is accompanied by a net reduction 

in the allowable emissions of a pollutant. This exclusion 

from the definition of "dispersion techniques" shall apply 

only to the emissions limitation for the pollutant affected 

by such change in operation; or

(3) Before July 8, 1985, such merging was part of a 

change in operation at the facility that included the 

installation of emissions control equipment or was 

carried out for sound economic or engineering reasons. 

Where there was an increase in the emissions limitation 

or, in the event that no emissions limitation was in 

existence prior to the merging, an increase in the quantity 

of pollutants actually emitted prior to the merging, the 

board shall presume that merging was significantly 

motivated by an intent to gain emissions credit for 

greater dispersion. Absent a demonstration by the owner 

that merging was not significantly motivated by such 

intent, the board shall deny credit for the effects of such 

merging in calculating the allowable emissions for the 

source;

c. Smoke management in agricultural or silvicultural 

prescribed burning programs;

d. Episodic restrictions on residential woodburning and 

open burning; or

e. Techniques under subdivision 1 c of this definition 

which increase final exhaust gas plume rise where the 

resulting allowable emissions of sulfur dioxide from the 

facility do not exceed 5,000 tons per year.

"Emergency" means a situation that immediately and 

unreasonably affects, or has the potential to immediately and 

unreasonably affect, public health, safety or welfare; the 

health of animal or plant life; or property, whether used for 
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recreational, commercial, industrial, agricultural or other 

reasonable use.

"Emissions limitation" means any requirement established 

by the board which limits the quantity, rate, or concentration 

of continuous emissions of air pollutants, including any 

requirements which limit the level of opacity, prescribe 

equipment, set fuel specifications, or prescribe operation or 

maintenance procedures to assure continuous emission 

reduction.

"Emission standard" means any provision of 9VAC5-40 

(Existing Stationary Sources), 9VAC5-50 (New and Modified 

Stationary Sources), or 9VAC5-60 (Hazardous Air Pollutant 

Sources) that prescribes an emissions limitation, or other 

requirements that control air pollution emissions.

"Emissions unit" means any part of a stationary source 

which emits or would have the potential to emit any air 

pollutant. 

"Equivalent method" means any method of sampling and 

analyzing for an air pollutant which has been demonstrated to 

the satisfaction of the board to have a consistent and 

quantitative relationship to the reference method under 

specified conditions. 

"EPA" means the U.S. Environmental Protection Agency or 

an authorized representative. 

"Excess emissions" means emissions of air pollutant in 

excess of an emission standard. 

"Excessive concentration" is defined for the purpose of 

determining good engineering practice (GEP) stack height 

under subdivision 3 of the GEP definition and means: 

1. For sources seeking credit for stack height exceeding 

that established under subdivision 2 of the GEP definition, 

a maximum ground-level concentration due to emissions 

from a stack due in whole or part to downwash, wakes, and 

eddy effects produced by nearby structures or nearby 

terrain features which individually is at least 40% in excess 

of the maximum concentration experienced in the absence 

of such downwash, wakes, or eddy effects and which 

contributes to a total concentration due to emissions from 

all sources that is greater than an ambient air quality 

standard. For sources subject to the provisions of Article 8 

(9VAC5-80-1605 et seq.) of Part II of 9VAC5-80 (Permits 

for Stationary Sources), an excessive concentration 

alternatively means a maximum ground-level 

concentration due to emissions from a stack due in whole 

or part to downwash, wakes, or eddy effects produced by 

nearby structures or nearby terrain features which 

individually is at least 40% in excess of the maximum 

concentration experienced in the absence of the maximum 

concentration experienced in the absence of such 

downwash, wakes, or eddy effects and greater than a 

prevention of significant deterioration increment. The 

allowable emission rate to be used in making 

demonstrations under this provision shall be prescribed by 

the new source performance standard that is applicable to 

the source category unless the owner demonstrates that this 

emission rate is infeasible. Where such demonstrations are 

approved by the board, an alternative emission rate shall be 

established in consultation with the owner; 

2. For sources seeking credit after October 11, 1983, for 

increases in existing stack heights up to the heights 

established under subdivision 2 of the GEP definition, 

either (i) a maximum ground-level concentration due in 

whole or part to downwash, wakes or eddy effects as 

provided in subdivision 1 of this definition, except that the 

emission rate specified by any applicable implementation 

plan (or, in the absence of such a limit, the actual emission 

rate) shall be used, or (ii) the actual presence of a local 

nuisance caused by the existing stack, as determined by the 

board; and 

3. For sources seeking credit after January 12, 1979, for a 

stack height determined under subdivision 2 of the GEP 

definition where the board requires the use of a field study 

or fluid model to verify GEP stack height, for sources 

seeking stack height credit after November 9, 1984, based 

on the aerodynamic influence of cooling towers, and for 

sources seeking stack height credit after December 31, 

1970, based on the aerodynamic influence of structures not 

adequately represented by the equations in subdivision 2 of 

the GEP definition, a maximum ground-level concentration 

due in whole or part to downwash, wakes or eddy effects 

that is at least 40% in excess of the maximum 

concentration experienced in the absence of such 

downwash, wakes, or eddy effects. 

"Existing source" means any stationary source other than a 

new source or modified source. 

"Facility" means something that is built, installed or 

established to serve a particular purpose; includes, but is not 

limited to, buildings, installations, public works, businesses, 

commercial and industrial plants, shops and stores, heating 

and power plants, apparatus, processes, operations, structures, 

and equipment of all types. 

"Federal Clean Air Act" means Chapter 85 (§ 7401 et seq.) 

of Title 42 of the United States Code.

"Federally enforceable" means all limitations and conditions 

which are enforceable by the administrator and citizens under 

the federal Clean Air Act or that are enforceable under other 

statutes administered by the administrator. Federally 

enforceable limitations and conditions include, but are not 

limited to, the following: 

1. Emission standards, alternative emission standards, 

alternative emissions limitations, and equivalent emissions 

limitations established pursuant to § 112 of the federal 

Clean Air Act as amended in 1990.

2. New source performance standards established pursuant 

to § 111 of the federal Clean Air Act, and emission 
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standards established pursuant to § 112 of the federal 

Clean Air Act before it was amended in 1990.

3. 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.

4. Limitations and conditions that are part of an 

implementation plan.

5. Limitations and conditions that are part of a section 

111(d) or section 111(d)/129 plan.

6. 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.

7. 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.

8. Limitations and conditions in a Virginia regulation or 

program that has been approved by EPA under subpart E 

of 40 CFR Part 63 for the purposes of implementing and 

enforcing § 112 of the federal Clean Air Act.

9. Individual consent agreements issued pursuant to the 

legal authority of EPA.

"Good engineering practice" or "GEP," with reference to the 

height of the stack, means the greater of:

1. 65 meters, measured from the ground-level elevation at 

the base of the stack;

2. a. For stacks in existence on January 12, 1979, and for 

which the owner had obtained all applicable permits or 

approvals required under 9VAC5-80 (Permits for 

Stationary Sources),

Hg = 2.5H,

provided the owner produces evidence that this equation 

was actually relied on in establishing an emissions 

limitation; 

b. For all other stacks, 

Hg = H + 1.5L, 

where: 

Hg = good engineering practice stack height, measured 

from the ground-level elevation at the base of the stack, 

H = height of nearby structure(s) measured from the 

ground-level elevation at the base of the stack, 

L = lesser dimension, height or projected width, of 

nearby structure(s) provided that the board may require 

the use of a field study or fluid model to verify GEP 

stack height for the source; or 

3. The height demonstrated by a fluid model or a field 

study approved by the board, which ensures that the 

emissions from a stack do not result in excessive 

concentrations of any air pollutant as a result of 

atmospheric downwash, wakes, or eddy effects created by 

the source itself, nearby structures or nearby terrain 

features. 

"Hazardous air pollutant" means an air pollutant to which no 

ambient air quality standard is applicable and which in the 

judgment of the administrator causes, or contributes to, air 

pollution which may reasonably be anticipated to result in an 

increase in mortality or an increase in serious irreversible, or 

incapacitating reversible, illness. 

"Implementation plan" means the portion or portions of the 

state implementation plan, or the most recent revision thereof, 

which has been approved under § 110 of the federal Clean Air 

Act, or promulgated under § 110(c) of the federal Clean Air 

Act, or promulgated or approved pursuant to regulations 

promulgated under § 301(d) of the federal Clean Air Act and 

which implements the relevant requirements of the federal 

Clean Air Act. 

"Initial emission test" means the test required by any 

regulation, permit issued pursuant to 9VAC5-80 (Permits for 

Stationary Sources), control program, compliance schedule or 

other enforceable mechanism for determining compliance 

with new or more stringent emission standards or permit 

limitations or other emissions limitations requiring the 

installation or modification of air pollution control equipment 

or implementation of a control method. Initial emission tests 

shall be conducted in accordance with 9VAC5-40-30.

"Initial performance test" means the test required by (i) 

40 CFR Part 60 for determining compliance with standards of 

performance, or (ii) a permit issued pursuant to 9VAC5-80 

(Permits for Stationary Sources) for determining initial 

compliance with permit limitations. Initial performance tests 

shall be conducted in accordance with 9VAC5-50-30 and 

9VAC5-60-30.

"Isokinetic sampling" means sampling in which the linear 

velocity of the gas entering the sampling nozzle is equal to 

that of the undisturbed gas stream at the sample point. 

"Locality" means a city, town, county or other public body 

created by or pursuant to state law. 

"Mail" means electronic or postal delivery.

"Maintenance area" means any geographic region of the 

United States previously designated as a nonattainment area 

and subsequently redesignated to attainment subject to the 

requirement to develop a maintenance plan and designated as 

such in 9VAC5-20-203. 

"Malfunction" means any sudden failure of air pollution 

control equipment, of process equipment, or of a process to

operate in a normal or usual manner, which failure is not due 

to intentional misconduct or negligent conduct on the part of 
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the owner or other person. Failures that are caused in part by 

poor maintenance or careless operation are not malfunctions. 

"Monitoring device" means the total equipment used to 

measure and record (if applicable) process parameters. 

"Nearby" as used in the definition of good engineering 

practice (GEP) is defined for a specific structure or terrain 

feature and: 

1. For purposes of applying the formulae provided in 

subdivision 2 of the GEP definition means that distance up 

to five times the lesser of the height or the width dimension 

of a structure, but not greater than 0.8 km (1/2 mile); and 

2. For conducting demonstrations under subdivision 3 of 

the GEP definition means not greater than 0.8 km (1/2 

mile), except that the portion of a terrain feature may be 

considered to be nearby which falls within a distance of up 

to 10 times the maximum height (Ht) of the feature, not to 

exceed two miles if such feature achieves a height (Ht) 0.8 

km from the stack that is at least 40% of the GEP stack 

height determined by the formulae provided in subdivision 

2 b of the GEP definition or 26 meters, whichever is 

greater, as measured from the ground-level elevation at the 

base of the stack. The height of the structure or terrain 

feature is measured from the ground-level elevation at the 

base of the stack. 

"Nitrogen oxides" means all oxides of nitrogen except 

nitrous oxide, as measured by test methods set forth in 

40 CFR Part 60. 

"Nonattainment area" means any area which is shown by air 

quality monitoring data or, where such data are not available, 

which is calculated by air quality modeling (or other methods 

determined by the board to be reliable) to exceed the levels 

allowed by the ambient air quality standard for a given 

pollutant including, but not limited to, areas designated as 

such in 9VAC5-20-204. 

"One hour" means any period of 60 consecutive minutes. 

"One-hour period" means any period of 60 consecutive 

minutes commencing on the hour. 

"Organic compound" means any chemical compound of 

carbon excluding carbon monoxide, carbon dioxide, carbonic 

disulfide, carbonic acid, metallic carbides, metallic carbonates 

and ammonium carbonate. 

"Owner" means any person, including bodies politic and 

corporate, associations, partnerships, personal representatives, 

trustees and committees, as well as individuals, who owns, 

leases, operates, controls or supervises a source. 

"Particulate matter" means any airborne finely divided solid 

or liquid material with an aerodynamic diameter smaller than 

100 micrometers. 

"Particulate matter emissions" means all finely divided solid 

or liquid material, other than uncombined water, emitted to 

the ambient air as measured by the applicable reference 

method, or an equivalent or alternative method.

"PM10" means particulate matter with an aerodynamic 

diameter less than or equal to a nominal 10 micrometers as 

measured by the applicable reference method or an equivalent 

method.

"PM10 emissions" means finely divided solid or liquid 

material, with an aerodynamic diameter less than or equal to a 

nominal 10 micrometers emitted to the ambient air as 

measured by the applicable reference method, or an 

equivalent or alternative method.

"Performance test" means a test for determining emissions 

from new or modified sources.

"Person" means an individual, corporation, partnership, 

association, a governmental body, a municipal corporation, or 

any other legal entity.

"Pollutant" means any substance the presence of which in 

the outdoor atmosphere is or may be harmful or injurious to 

human health, welfare or safety, to animal or plant life, or to 

property, or which unreasonably interferes with the 

enjoyment by the people of life or property.

"Potential to emit" means the maximum capacity of a 

stationary source to emit a pollutant under its physical and 

operational design. Any physical or operational limitation on 

the capacity of the source to emit a pollutant, including air 

pollution control equipment, and restrictions on hours of 

operation or on the type or amount of material combusted, 

stored, or processed, shall be treated as part of its design only 

if the limitation or its effect on emissions is state and 

federally enforceable.

"Prevention of significant deterioration area" means any area 

not designated as a nonattainment area in 9VAC5-20-204 for 

a particular pollutant and designated as such in 9VAC5-20-

205.

"Proportional sampling" means sampling at a rate that 

produces a constant ratio of sampling rate to stack gas flow 

rate. 

"Public hearing" means, unless indicated otherwise, an 

informal proceeding, similar to that provided for in § 2.2-

4007.02 of the Administrative Process Act, held to afford 

persons an opportunity to submit views and data relative to a 

matter on which a decision of the board is pending.

"Reference method" means any method of sampling and 

analyzing for an air pollutant as described in the following 

EPA regulations:

1. For ambient air quality standards in 9VAC5-30 

(Ambient Air Quality Standards): The applicable appendix 

of 40 CFR Part 50 or any method that has been designated 

as a reference method in accordance with 40 CFR Part 53, 

except that it does not include a method for which a 

reference designation has been canceled in accordance 

with 40 CFR 53.11 or 40 CFR 53.16.

2. For emission standards in 9VAC5-40 (Existing 

Stationary Sources) and 9VAC5-50 (New and Modified 
Regulations

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940

Stationary Sources): Appendix M of 40 CFR Part 51 or 

Appendix A of 40 CFR Part 60.

3. For emission standards in 9VAC5-60 (Hazardous Air 

Pollutant Sources): Appendix B of 40 CFR Part 61 or 

Appendix A of 40 CFR Part 63.

"Regional director" means the regional director of an 

administrative region of the Department of Environmental 

Quality or a designated representative.

"Regulation of the board" means any regulation adopted by 

the State Air Pollution Control Board under any provision of 

the Code of Virginia.

"Regulations for the Control and Abatement of Air 

Pollution" means 9VAC5-10 (General Definitions) through 

9VAC5-80 (Permits for Stationary Sources).

"Reid vapor pressure" means the absolute vapor pressure of 

volatile crude oil and volatile nonviscous petroleum liquids 

except liquefied petroleum gases as determined by American 

Society for Testing and Materials publication, "Standard Test 

Method for Vapor Pressure of Petroleum Products (Reid 

Method)" (see 9VAC5-20-21).

"Run" means the net period of time during which an 

emission sample is collected. Unless otherwise specified, a 

run may be either intermittent or continuous within the limits 

of good engineering practice.

"Section 111(d) plan" means the portion or portions of the 

plan, or the most recent revision thereof, which has been 

approved under 40 CFR 60.27(b) in accordance with 

§ 111(d)(1) of the federal Clean Air Act, or promulgated 

under 40 CFR 60.27(d) in accordance with § 111(d)(2) of the 

federal Clean Air Act, and which implements the relevant 

requirements of the federal Clean Air Act. 

"Section 111(d)/129 plan" means the portion or portions of 

the plan, or the most recent revision thereof, which has been 

approved under 40 CFR 60.27(b) in accordance with 

§§ 111(d)(1) and 129(b)(2) of the federal Clean Air Act, or 

promulgated under 40 CFR 60.27(d) in accordance with 

§§ 111(d)(2) and 129(b)(3) of the federal Clean Air Act, and 

which implements the relevant requirements of the federal 

Clean Air Act. 

"Shutdown" means the cessation of operation of an affected 

facility for any purpose. 

"Source" means any one or combination of the following: 

buildings, structures, facilities, installations, articles, 

machines, equipment, landcraft, watercraft, aircraft or other 

contrivances which contribute, or may contribute, either 

directly or indirectly to air pollution. Any activity by any 

person that contributes, or may contribute, either directly or 

indirectly to air pollution, including, but not limited to, open 

burning, generation of fugitive dust or emissions, and 

cleaning with abrasives or chemicals. 

"Stack" means any point in a source designed to emit solids, 

liquids or gases into the air, including a pipe or duct, but not 

including flares. 

"Stack in existence" means that the owner had: 

1. Begun, or caused to begin, a continuous program of 

physical on site construction of the stack; or 

2. Entered into binding agreements or contractual 

obligations, which could not be canceled or modified 

without substantial loss to the owner, to undertake a 

program of construction of the stack to be completed in a 

reasonable time. 

"Standard conditions" means a temperature of 20°C (68°F) 

and a pressure of 760 mm of Hg (29.92 inches of Hg). 

"Standard of performance" means any provision of 9VAC5-

50 (New and Modified Stationary Sources) which prescribes 

an emissions limitation or other requirements that control air 

pollution emissions. 

"Startup" means the setting in operation of an affected 

facility for any purpose. 

"State enforceable" means all limitations and conditions 

which are enforceable by the board or department, including, 

but not limited to, those requirements developed pursuant to 

9VAC5-170-160; requirements within any applicable 

regulation, order, consent agreement or variance; and any 

permit requirements established pursuant to 9VAC5-80 

(Permits for Stationary Sources). 

"State Implementation Plan" means the plan, including the 

most recent revision thereof, which has been approved or 

promulgated by the administrator, U.S. Environmental 

Protection Agency, under § 110 of the federal Clean Air Act, 

and which implements the requirements of § 110.

"Stationary source" means any building, structure, facility or 

installation which emits or may emit any air pollutant. A 

stationary source shall include all of the pollutant-emitting 

activities which belong to the same industrial grouping, are 

located on one or more contiguous or adjacent properties, and 

are under the control of the same person (or persons under 

common control) except the activities of any vessel. 

Pollutant-emitting activities shall be considered as part of the 

same industrial grouping if they belong to the same "Major 

Group" (i.e., which have the same two-digit code) as 

described in the Standard Industrial Classification Manual 

(see 9VAC5-20-21).

"These regulations" means 9VAC5-10 (General Definitions) 

through 9VAC5-80 (Permits for Stationary Sources).

"Total suspended particulate" or "TSP" means particulate 

matter as measured by the reference method described in 

Appendix B of 40 CFR Part 50. 

"True vapor pressure" means the equilibrium partial pressure 

exerted by a petroleum liquid as determined in accordance 

with methods described in American Petroleum Institute 

(API) publication, "Evaporative Loss from External FloatingRoof Tanks" (see 9VAC5-20-21). The API procedure may 

not be applicable to some high viscosity or high pour crudes. 

Available estimates of true vapor pressure may be used in 

special cases such as these. 
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"Urban area" means any area consisting of a core city with a 

population of 50,000 or more plus any surrounding localities 

with a population density of 80 persons per square mile and 

designated as such in 9VAC5-20-201. 

"Vapor pressure," except where specific test methods are 

specified, means true vapor pressure, whether measured 

directly, or determined from Reid vapor pressure by use of 

the applicable nomograph in American Petroleum Institute 

publication, "Evaporative Loss from Floating-Roof Tanks" 

(see 9VAC5-20-21). 

"Virginia Air Pollution Control Law" means Chapter 13 (§ 

10.1-1300 et seq.) of Title 10.1 of the Code of Virginia. 

"Volatile organic compound" means any compound of 

carbon, excluding carbon monoxide, carbon dioxide, carbonic 

acid, metallic carbides or carbonates, and ammonium 

carbonate, which participates in atmospheric photochemical 

reactions. 

1. This includes any such organic compounds which have 

been determined to have negligible photochemical 

reactivity other than the following: 

a. Methane; 

b. Ethane; 

c. Methylene chloride (dichloromethane); 

d. 1,1,1-trichloroethane (methyl chloroform); 

e. 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113); 

f. Trichlorofluoromethane (CFC-11); 

g. Dichlorodifluoromethane (CFC-12); 

h. Chlorodifluoromethane (H CFC-22); 

i. Trifluoromethane (H FC-23); 

j. 1,2-dichloro 1,1,2,2,-tetrafluoroethane (CFC-114); 

k. Chloropentafluoroethane (CFC-115); 

l. 1,1,1-trifluoro 2,2-dichloroethane (HCFC-123); 

m. 1,1,1,2-tetrafluoroethane (HFC-134a); 

n. 1,1-dichloro 1-fluoroethane (HCFC-141b); 

o. 1-chloro 1,1-difluoroethane (HCFC-142b); 

p. 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124); 

q. Pentafluoroethane (HFC-125); 

r. 1,1,2,2-tetrafluoroethane (HFC-134); 

s. 1,1,1-trifluoroethane (HFC-143a); 

t. 1,1-difluoroethane (HFC-152a); 

u. Parachlorobenzotrifluoride (PCBTF); 

v. Cyclic, branched, or linear completely methylated 

siloxanes; 

w. Acetone; 

x. Perchloroethylene (tetrachloroethylene); 

y. 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC225ca); 

z. 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC225cb); 

aa. 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-

10mee); 

bb. Difluoromethane (HFC-32); 

cc. Ethylfluoride (HFC-161); 

dd. 1,1,1,3,3,3-hexafluoropropane (HFC-236fa); 

ee. 1,1,2,2,3-pentafluoropropane (HFC-245ca); 

ff. 1,1,2,3,3-pentafluoropropane (HFC-245ea); 

gg. 1,1,1,2,3-pentafluoropropane (HFC-245eb); 

hh. 1,1,1,3,3-pentafluoropropane (HFC-245fa); 

ii. 1,1,1,2,3,3-hexafluoropropane (HFC-236ea); 

jj. 1,1,1,3,3-pentafluorobutane (HFC-365mfc); 

kk. Chlorofluoromethane (HCFC-31); 

ll. 1 chloro-1-fluoroethane (HCFC-151a); 

mm. 1,2-dichloro-1,1,2-trifluoroethane (HCFC-123a); 

nn. 1,1,1,2,2,3,3,4,4-nonafluoro-4-methoxy-butane 

(C4F9OCH3 or HFE-7100); 

oo. 2-(difluoromethoxymethyl)-1,1,1,2,3,3,3-heptafluoropropane ((CF3)2CFCF2 OCH3); 

pp. 1-ethoxy-1,1,2,2,3,3,4,4,4-nonafluorobutane (C4F9 

OC2H5 or HFE-7200); 

qq. 2-(ethoxydifluoromethyl)-1,1,1,2,3,3,3-heptafluoropropane ((CF3)2CFCF2OC2H5); 

rr. Methyl acetate; ss. 1,1,1,2,2,3,3-heptafluoro-3-

methoxy-propane (n-C3F7OCH3) (HFE-7000); 

tt. 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-

(trifluoromethyl) hexane (HFE-7500); 

uu. 1,1,1,2,3,3,3-heptafluoropropane (HFC 227ea); 

vv. methyl formate (HCOOCH3); 

ww. 1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-

trifluoromethyl-pentane (HFE-7300); 

xx. propylene carbonate;

yy. dimethyl carbonate;

zz. trans-1,3,3,3-tetrafluoropropene; and

aaa. HCF2OCF2H (HFE-134); 

bbb. HCF2OCF2OCF2H (HFE-236cal2); 

ccc. HCF2OCF2CF2OCF2H (HFE-338pcc13); 

ddd. HCF2OCF2OCF2CF2OCF2H (H-Galden 1040x or HGalden ZT 130 (or 150 or 180)); and

eee. trans 1-chloro-3,3,3-trifluoroprop-1-ene;

fff. 2,3,3,3-tetrafluoropropene; and

ggg. Perfluorocarbon compounds which fall into these 

classes: 

(1) Cyclic, branched, or linear, completely fluorinated 

alkanes; 
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942

(2) Cyclic, branched, or linear, completely fluorinated 

ethers with no unsaturations; 

(3) Cyclic, branched, or linear, completely fluorinated 

tertiary amines with no unsaturations; and 

(4) Sulfur containing perfluorocarbons with no 

unsaturations and with sulfur bonds only to carbon and 

fluorine. 

2. For purposes of determining compliance with emissions 

standards, volatile organic compounds shall be measured 

by the appropriate reference method in accordance with the 

provisions of 9VAC5-40-30 or 9VAC5-50-30, as 

applicable. Where such a method also measures 

compounds with negligible photochemical reactivity, these 

negligibly reactive compounds may be excluded as a 

volatile organic compound if the amount of such 

compounds is accurately quantified, and such exclusion is 

approved by the board. 

3. As a precondition to excluding these compounds as 

volatile organic compounds or at any time thereafter, the 

board may require an owner to provide monitoring or 

testing methods and results demonstrating, to the 

satisfaction of the board, the amount of negligibly reactive 

compounds in the emissions of the source. 

4. Exclusion of the above compounds in this definition in 

effect exempts such compounds from the provisions of 

emission standards for volatile organic compounds. The 

compounds are exempted on the basis of being so inactive 

that they will not contribute significantly to the formation 

of ozone in the troposphere. However, this exemption does 

not extend to other properties of the exempted compounds 

which, at some future date, may require regulation and 

limitation of their use in accordance with requirements of 

the federal Clean Air Act. 

5. The following compound is a VOC for purposes of all 

recordkeeping, emissions reporting, photochemical 

dispersion modeling and inventory requirements that apply 

to VOCs and shall be uniquely identified in emission 

reports, but is not a VOC for purposes of VOC emission 

standards, VOC emissions limitations, or VOC content 

requirements: t-butyl acetate. 

"Welfare" means that language referring to effects on 

welfare includes, but is not limited to, effects on soils, water,

crops, vegetation, man-made materials, animals, wildlife, 

weather, visibility and climate, damage to and deterioration of 

property, and hazards to transportation, as well as effects on 

economic values and on personal comfort and well-being. 

VA.R. Doc. No. R15-3855; Filed December 24, 2014, 9:32 a.m. 

 –––––––––––––––––– 

TITLE 12. HEALTH

STATE BOARD OF HEALTH

Emergency Regulation

Titles of Regulations: 12VAC5-71. Regulations Governing 

Virginia Newborn Screening Services (amending 

12VAC5-71-30, 12VAC5-71-150; adding 12VAC5-71-200

through 12VAC5-71-260).

12VAC5-191. State Plan for the Children with Special 

Health Care Needs Program (amending 12VAC5-191-

260). 

Statutory Authority: §§ 32.1-12, 32.1-65.1, and 32.1-67 of the 

Code of Virginia.

Effective Dates: December 24, 2014, through June 23, 2016.

Agency Contact: Dev Nair, Director, Division of Policy and 

Evaluation, Department of Health, 109 Governor Street, 

Richmond, VA 23219, telephone (804) 864-7662, FAX (804) 

864-7647, or email dev.nair@vdh.virginia.gov.

Preamble:

Congenital heart defects are the most common birth 

defects in the United States, affecting about one in every 

110 babies. A few babies born with congenital heart 

defects have more serious forms of heart disease, critical 

congenital heart disease (CCHD). CCHDs are heart 

defects that result in abnormal blood flow and oxygen 

deprivation. These defects require intervention within the 

first year of life, and delayed diagnosis can result in death. 

Screening newborns for CCHD using pulse oximetry has 

been recommended through the U.S. Department of Health 

and Human Services Secretary's Recommended Uniform 

Screening Panel. The screening is simple, quick, and 

painless. A sensor wrapped around the baby's right hand 

or either foot measures the amount of oxygen in the baby's 

blood.

Most Virginia hospitals already provide CCHD screening 

voluntarily. These regulations require a small number of 

additional hospitals to implement the screening. The 

regulations also permit the Virginia Department of Health 

(VDH) to collect information via the Virginia Congenital 

Anomalies Reporting and Education System (VaCARES) 

reporting system so that infants identified with a critical 

congenital heart disease can be referred to the Care 

Connection for Children network to obtain care 

coordination services. 

Chapters 4 and 175 of the 2014 Acts of Assembly require 

VDH to implement regulations relating to screening for 

CCHD. The legislation requires VDH to promulgate 

regulations within 280 days of enactment. Pursuant to the 

legislation, the regulations include provisions to implement 

CCHD screening for all babies born in hospitals with 

newborn nurseries. The legislation also requires VDH to