UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

1650 Arch Street

Philadelphia, Pennsylvania 19103

DATE: February 22, 2011

SUBJECT: Technical Support Document - Virginia, Permits for Major Stationary Sources 

and Major Modifications Locating in Prevention of Significant Deterioration

(PSD) Areas

/s/

FROM: Sharon McCauley, Environmental Protection Specialist

Office of Permits and Air Toxics (3AP10) 

TO: File

THRU: Kathleen Anderson, Associate Director

Office of Permits and Air Toxics (3AP10)

I. BACKGROUND

Virginia’s proposed SIP submission addresses changes needed in the part C PSD permit 

program. This SIP submission also corrects deficiencies identified by EPA in the March 27, 

2008 Federal Register notice entitled, “Completeness Findings for Section 110(a) State 

implementation Plans for the 8 hour Ozone National Ambient Air Quality Standards (1997 

Ozone NAAQS)”, (73 FR 16205). EPA’s proposed approval of this SIP submission addresses 

Virginia’s compliance with the portion of CAA Section 110 (a)(2)(C) & (J) relating to the Part C 

permit program for the 1997 NAAQS Ozone NAAQS, because this proposed approval would 

approve regulating NOx as a precursor to Ozone in Virginia’s SIP in accordance with the Federal 

Register notice dated November 29, 2005 (70 FR 71612) that finalized NOx as a precursor for 

Ozone regulations set forth at 40 CFR 51.166 and in 40 CFR 52.21. 

EPA’s review of the VA DEQ Regulatory Revision Package was found to be acceptable for 

adding nitrogen oxides (NOx) as a precursor for Ozone (O3) for PSD. The current changes to the 

Virginia program, as described in detail in Section IV, are from 9 VAC-5- Chapter 80 Article 8, 

Permits for Major Stationary Sources and Major Modifications Locating in Prevention of 

Significant Deterioration (PSD) Areas. This current change will add NOx as a precursor to 

Ozone, in addition to volatile organic compounds (VOC), in the definitions of “major 

modification”, “major stationary source”, “regulated New Source Review (NSR) pollutant” and 

“significant” and to the list of exempted facilities. The previous PSD State Implementation Plan 

(SIP) approval was provided to the Commonwealth as a limited approval for other reasons as 

cited in Section II, below.
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The Federal PSD program has undergone several relevant changes since the last State SIP 

limited approval of its PSD permitting program dated October 22, 2008 in 73 FR 62897. 

The following provides a summary of the final federal provision changes that occurred from the 

previous “limited approval” which included federal PSD regulations as of September 1, 2006 

through the present that will not be a part of this revision request to Virginia's regulatory PSD 

SIP approval of the “NOx as a precursor to Ozone” element of their program.

1. Final Changes for Certain Ethanol Production Facilities Under Three Clean Air Act 

Permitting Programs

On April 12, 2007 EPA’s final action modified the definition of a "chemical process plant" as it 

applies to three Clean Air Act permitting programs.

2. Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review 

(NSR): Removal of Vacated Elements

On June 5, 2007 EPA removed provisions for pollution control projects (PCP) and clean units 

(CU) from its New Source Review (NSR) regulations. These provisions were part of EPA’s NSR 

improvement rule issued on December 31, 2002. On June 24, 2005, the United States Court of 

Appeals for the District of Columbia Circuit vacated the portions of the 2002 and 1992 NSR 

rules that pertained to CU and PCP.

3. Rule Clarification Assures that New Source Review Program is Applied Appropriately

On December 14, 2007 EPA issued a final rule to clarify when facilities must keep records and 

report emissions when a “reasonable possibility” test shows that projected emissions increases 

could equal or exceed 50 percent of the Clean Air Act’s NSR significant levels for any pollutant. 

This rule does not change permitting requirements.

4. EPA Issues Final Rules Governing the Implementation of NSR for Fine Particulate Matter

On May 8, 2008, the Environmental Protection Agency (EPA) issued final rules governing the 

implementation of the New Source Review (NSR) program for particulate matter less then 2.5 

micrometers in diameter (PM2.5). PM2.5 also is known as fine particles. This rule finalizes 

several NSR program requirements for sources that emit PM2.5 and other pollutants that 

contribute to PM2.5

5. EPA Finalizes Rule Reconsidering Inclusion of Fugitive Emissions

On December 10, 2008, EPA finalized revisions to the December 31, 2002 New Source Review 

(NSR) Improvement rules to change the requirements of the major NSR programs regarding the 

treatment of fugitive emissions.

6. EPA issues an interpretive memorandum entitled "EPA's Interpretation of Regulations That 

Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit 

Program."

On December 18, 2008 the Administrator issued an interpretive memorandum entitled "EPA's 
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Interpretation of Regulations That Determine Pollutants Covered by Federal Prevention of 

Significant Deterioration (PSD) Permit Program."

7. Final Rule Defines Approach for Grouping Projects under the New Source Review Permitting 

Program

On January 12, 2009, EPA issued a final rule that revises the agency’s policy on “aggregation.” 

For the purpose of determining whether NSR applies, this rule directs facilities and permitting 

authorities to combine, or aggregate, emissions from plant modifications when those projects are 

related. Thus, total emissions for the related projects must be considered when permitting 

authorities determine whether NSR applies. 

8. Denial of Petitions to Reconsider Aspects of the PM2.5 NSR Requirements and Reasonable 

Possibility Rule

January 15, 2009 - EPA has denied two petitions for reconsideration of two final rules under the 

New Source Review permitting program for PM2.5 Requirements and Reasonable Possibility

Rule. 

9. EPA Reconsiders New Source Review Final Rule

February 9, 2009 - To allow further review of the January 15, 2009, final rule modifying the 

NSR air permitting program’s “aggregation” policy, EPA is extending the effective date of the 

rule. This action is in response to the White House’s January 20, 2009, and the Office of 

Management and Budget’s January 21, 2009, memoranda regarding regulatory review. EPA also 

will reconsider one or more of the aspects of this final rule raised by the Natural Resources 

Defense Council in a petition for reconsideration. To allow time for the review and the 

reconsideration, EPA will stay the effective date of this rule for 90 days, until May 18, 2009.

10. Granting of Petitions to Reconsider Aspects of the Reasonable Possibility, Fugitive 

Emissions and PM2.5 NSR Permitting Rules

April 24, 2009 - EPA notified petitioners of its intent to reconsider portions of three rules under 

its New Source Review (NSR) permitting program.

11. EPA extends effective date of the aggregation rule for 1-year

May 8, 2009 - This final rule extends until May 18, 2010, the effective date of the January 12, 

2009 aggregation rule. During this time, EPA will reconsider the final aggregation rule. 

12. Stays the "Grandfathering" Provision for the PM2.5 NSR Permitting Rule for Nine Months

September 16, 2009 - EPA staying until June 22, 2010 the "grandfathering" provision for 

particulate mater less than 2.5 micrometers (PM2.5) requirements in the Federal Prevention of 

Significant Deterioration (PSD) program published in the Federal Register on May 16, 2008.
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13. Final Rule Facilitates the use of Flexible Air Permits

September 25, 2009 - Flexible air permits enable major air emissions sources to implement 

operational plans and make anticipated changes to these plans without further review and 

approval. These permits do not provide approval for operational changes outside the scope 

authorized in the initial permit and sources must still meet all Clean Air Act requirements that 

apply to them. Pilot studies have shown that flexible permitting approaches can minimize the 

need for permit revisions, provide significant economic benefits, encourage innovation, and 

increase public awareness -- all while ensuring equal or greater environmental protection.

14. Approval and Promulgation of Wisconsin NSR Reform Regulations: Denial of Petition for 

Reconsideration

January 20, 2010 - EPA responded to a petition from the NRDC and Sierra Club. Their petition 

requested that EPA reconsider and stay of certain parts of the Wisconsin's SIP. After carefully 

reviewing the petition for reconsideration, EPA has denied it. EPA also denied NRDC's request 

for a stay of the final rule approving the Wisconsin state plan. 

15. Stay of Fugitive Emissions Rule for 18 Months

March 24, 2010 - EPA has stayed for 18 additional months, the rule establishing how fugitive 

emissions should be treated for New Source Review permitting. A previous stay will expire on 

March 30, 2010. 

16. Stay of Aggregation Rule 

May 6, 2010 - EPA extended the effective date of the January 15, 2009 final rule that modified 

the New Source Review air permitting program’s policy on “Aggregation.”

17. Final GHG Tailoring Rule

May 13, 2010 - EPA sets greenhouse gas (GHG) emissions thresholds to define when permits 

under the New Source Review Prevention Significant Deterioration (PSD) and title V Operating 

Permit programs are required for new and existing industrial facilities. The State has the 

authority to regulate GHGs, however, the State will now need to adopt the equivalent federal 

threshold levels for GHGs based on the Tailoring Rule. 

18. Final Rule to Establish Increments, Significant Impact Levels and a Significant Monitoring 

Concentration for Fine Particle Pollution

September 29, 2010 - EPA had established key components for making PSD permitting 

determinations for fine particle pollution increments, significant impact levels (SILs), and a 

significant monitoring concentration.
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19. Greenhouse Gas Emissions 

December 1, 2010 - Final rule which requires certain states to make changes to their state 

implementation plans to cover greenhouse gas (GHG) emissions in Clean Air Act permits. These 

changes will ensure that beginning in January 2011 GHG emissions sources can obtain permits. 

Virginia is not one of these States. 

20. Clean Air Act Permitting for Greenhouse Gas Emissions

On December 23, 2010, the U.S. Environmental Protection Agency (EPA) issued a series of 

rules that put the necessary regulatory framework in place to ensure that 1) industrial facilities 

can get Clean Air Act permits covering their greenhouse gas (GHG) emissions when needed and 

2) facilities emitting GHGs at levels below those established in the Tailoring Rule do not need to 

obtain Clean Air Act permits. 

EPA has determined that the proposed amendments to Virginia's prevention of significant 

deterioration (PSD) permit program at 9 VAC-5- Chapter 80 Article 8, as submitted on June 7, 

2010, meet the minimum requirements of 40 CFR 51.166 and the Clean Air Act for regulating 

NOx as a precursor to Ozone. This amendment alone is being proposed for full approval as a 

revision to the Virginia SIP. This action does not supersede the prior “limited approval” of the 

Virginia PSD program for the following issues.

II. PRIOR LIMITED APPROVAL OF VIRGINIA’S PSD PROGRAM

The following is an explanation for the limited approval of the previous SIP revision by

EPA. In Virginia’s regulations under 9 VAC 5- Chapter 80-1615 (Article 8) 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” varied from the federal definition at 

40 CFR 51.166(b)(47) in two ways. First, for both electric generating units (EGUs) and nonEGUs, Virginia’s rule allowed the use of different baselines for different pollutants if the owner 

could demonstrate to the satisfaction of the Board that a different baseline period for a different 

pollutant(s) was more appropriate due to extenuating circumstances. EPA proposed a 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 began actual 

construction or the permit application was deemed complete, whichever was earlier, unless the 

Board allowed a different time period that it deemed more representative of normal source 

operations. The allowance of a different or an extended time period by the Board was acceptable 

as it allowed a time period past the more restrictive 5-year period, however, the 

Commonwealth’s regulations did 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 met the general federal criteria for expanding the 

lookback period beyond the old requirement of the most recent 24-month period, and were 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 
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operation not only enables sources to plan effective emissions control strategies, it also provided

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 could, 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 request. The following was an excerpt from the Commonwealth’s 

“Technical Support Document” for their last approval request. 

“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 
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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 went 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 submittal, Virginia further added 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 had 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 did 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 was based the Commonwealth’s interpretation of its 

regulations as provided in their discussion, above. Furthermore, EPA would look unfavorably 

upon any use of discretion by Virginia that would allow for baselines that exceeded 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 believed it was appropriate that while EPA resolves the gaps in its own ability to 

assess the impact of the federal rules, 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 believed that the limited approval action was necessary to further 

strengthen the Virginia SIP. EPA continues to rely on the Commonwealth’s interpretation of its 

regulations as noted above in this Section, and in part, the basis for the prior limited approval. 

III. SUMMARY OF ACTION

This rule establishes a construction permit program consistent with the federal Clean Air Act’s 

Title I program and implementing regulations at 40 CFR §51.166, “Prevention of Significant 

Deterioration of Air Quality.” 9 VAC-5-Chapter 80 Article 8 is part of the State Implementation 

Plan and sets forth the criteria and procedures for major stationary sources to obtain a permit to 

construct, operate and/or modify a major stationary source.

This revision simply is adding new references to include NOx as a precursor to Ozone to comport 
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with federal counterpart language. The Virginia Department of Environmental Quality

(VADEQ) has now submitted a final rule 9 VAC-5-Chapter 80 Article 8 as a proposed revision 

to the State Implementation Plan.

EPA is now proposing to “fully” approve the regulatory changes made with this Revision 

Package A08 found at 9 VAC-5-Chapter 80 Article 8, Sections 1615 and 1695, and as referenced 

above, into the Virginia SIP. The Commonwealth’s Regulatory SIP Revision Request Package 

was submitted by the Virginia Department of Environmental Quality on June 7, 2010. The 

regulations for this approval became effective in the Commonwealth on December 31, 2008.

IV. PROGRAM REVIEW

A. Virginia Submittal

The Virginia SIP submittal includes new references in the Commonwealth’s rule to 

include NOx as a precursor to Ozone to comport with federal counterpart language.

B. Public Comment on the revised Commonwealth’s rules contained in this SIP approval–

The Regional Administrator for the U.S. Environmental Protection Agency was notified 

of the public comment period, as was each local air pollution control agency which will 

be significantly affected by the revision and is located in the affected Air Quality Control 

Regions. In addition, the District of Columbia, Maryland and Tennessee, which share 

affected interstate Air Quality Control Regions with Virginia, were notified of the public 

comment period. These notifications followed the requirements of 40 CFR Part 

51.102(d)(3), (4) and (5).

No comments were received regarding this revision.

C. Regulatory Review of Proposed SIP 

VIRGINIA REGULATIONS

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 changes to direct reader to correct current Virginia citation

B No changes

C Modified See below for the changes to 9 VAC5-80-1615C “Definitions”.

Many of the definitions in the SIP had previously been revised and many terms had been added 

to accommodate the NSR reform regulations in the limited approval of the PSD Article 8 SIP 

which was completed in October 2008. Virginia has now updated the text of some definitions 
9

(noted below) which adds NOx as a precursor to O3 for PSD. EPA has determined that these 

regulatory changes are SIP approvable. The changes were made to the Commonwealth’s 

regulations, in part because of a completeness finding for Section 110(a) of the Clean Air Act for

PSD program elements needed under State infrastructure (March 27, 2008, 73 FR 16205). 

The following table summarizes the changes that have been made. Those terms appearing in 

bold text are NSR reform minimum program elements. 

Modified definitions 

at 9 VAC5-80-1615 C

major modification (b) adds reference that NOx shall 

be considered a precursor for 

Ozone

Modified definitions

at 9 VAC5-80-1615 C

major stationary source (a)(1)(x) Changed text to clarify meaning 

of fossil fuel boilers. 

Regulation is consistent to prior 

approved text. 

Modified definitions 

at 9 VAC5-80-1615 C

major stationary source (b) adds reference that NOx shall 

be considered a precursor for 

Ozone

Modified definitions 

at 9 VAC5-80-1615 C

major stationary source (c)(21) Changed text to clarify meaning 

of fossil fuel boilers. 

Regulation is consistent to prior 

approved text. 

Modified definitions 

at 9 VAC5-80-1615 C

regulated NSR pollutant (a) added words “and Nox” to 

show precursors for Ozone

Modified definitions 

at 9 VAC5-80-1615 C

Significant ( a) (Ozone criteria in 

pollutant chart)

added words “and Nox” to 

show precursors for Ozone

9 VAC 5-80-1695. Exemptions.

The following table describes how the section has been changed. 

Subsection in 

1695

Changes

A Changed text to clarify meaning of fossil fuel boilers. Regulation 

is consistent to prior approved text. 

B No changes.

C No changes.

D No changes.

E Modified Section E. 1. No de minimus air quality level is 

provided for Ozone. However, any net increase of VOCs or NOx 

subject to Article 8 would be required to perform an ambient 

impact analysis including gathering ambient air quality data. 
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V. INFRASTRUCTURE

Virginia’s proposed SIP submission addresses changes needed in the part C PSD permit 

program. This SIP submission also corrects deficiencies identified by EPA in the March 27, 

2008 Federal Register notice entitled, “Completeness Findings for Section 110(a) State 

implementation Plans for the 8 hour Ozone National Ambient Air Quality Standards (1997 

Ozone NAAQS)”, (73 FR 16205). EPA’s proposed approval of this SIP submission addresses 

Virginia’s compliance with the portion of CAA Section 110 (a)(2)(C) & (J) relating to the Part 

C permit program for the 1997 NAAQS Ozone NAAQS, because this proposed approval would 

approve regulating NOx as a precursor to Ozone in Virginia’s SIP in accordance with the 

Federal Register notice dated November 29, 2005 (70 FR 71612) that finalized NOx as a 

precursor for Ozone regulations set forth at 40 CFR 51.166 and in 40 CFR 52.21. 

VI. RECOMMENDED AGENCY ACTION

EPA recommends “fully” approving the Virginia Regulatory Revision Package as a current 

revision to the Virginia SIP at 9 VAC-5-Chapter 80 Article 8 Permits for Major Stationary

Sources and Major Modifications Locating in PSD Areas. This SIP revision will establish NOx

as a precursor to Ozone and will not supersede the previous “limited approval” status of those 

citations as noted in 73 FR 62897; and as previously discussed in Section II of this document.