ENCLOSURE 2 

CERTIFICATION OF PUBLIC PARTICIPATION ACTIVITIES 

AND COMPLIANCE WITH 

STATE ADMINISTRATIVE PROCEDURES 

As required by 40 CFR 51.102 and Section 2.1 of Appendix V of 40 CFR Part 51, the 

following information regarding public participation activities and compliance with state 

administrative procedures is provided. 

PUBLIC PARTICIPATION ACTIVITIES

As required by 40 CFR 51.102(a), a public comment period to provide the opportunity 

to submit written comments concerning a proposed revision to the Commonwealth of 

Virginia State Implementation Plan was held from August 4 to September 2, 2010. 

As required by 40 CFR Part 51.102(a) and (d)(1) and (2), the public was given notice of 

the public comment period in the Washington Examiner (for the National Capital 

Interstate Air Quality Control Region), along with the location of the proposal for public 

inspection, on August 4, 2010. The notice included procedures to afford the public the 

opportunity to request that a hearing be held pursuant to 40 CFR 51.102(a); no such 

request was received. The attached copy of the notice provides the evidence required 

by Section 2.1(f) of Appendix V of 40 CFR Part 51. Similar notices were placed in at 

least one paper of general circulation in each of Virginia's other Air Quality Control 

Regions. 

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 follow the requirements of 40 CFR Part 

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

COMPLIANCE WITH STATE ADMINISTRATIVE PROCEDURES

As required by Section 2.1(b) of Appendix V of 40 CFR Part 51, the regulation 

amendments were published in the Virginia Register of Regulations on February 16, 

2009 after being duly adopted by the State Air Pollution Control Board on December 16, 

2008, certified by the Office of the Attorney General as within the board’s statutory 

authority on December 17, 2008 and thus fully enforceable under Virginia law, and 

submitted to the Virginia Registrar on behalf of the Board by the Department of 

Environmental Quality as a true and accurate copy of the duly adopted regulation on 

January 21, 2009, providing the evidence required by Section 2.1(b) and (e) of 

Appendix V of 40 CFR Part 51. As required by Section 2.1(d) of Appendix V of 40 CFR 

Part 51, a copy of the actual regulation submitted for approval and incorporation by 
reference into the Commonwealth of Virginia State Implementation Plan is attached, 

along with the effective date of March 18, 2009. 

TEMPLATES\SIP-REG\REG02-PH 

SIP\NONATTN PLANS\2010\K07-SIP-2.DOC 

Regulations

Volume 25, Issue 12 Virginia Register of Regulations February 16, 2009 

2106 

to protect public health and welfare, he may direct that any 

of the above cited distances be increased.

4. The burning shall be attended at all times and conducted 

to ensure the best possible combustion with a minimum of 

smoke being produced. Under no circumstances should the 

burning be allowed to smolder beyond the minimum period 

of time necessary for the destruction of the materials.

5. The burning shall be conducted only when the prevailing 

winds are away from any city, town or built-up area.

6. The use of special incineration devices shall be allowed 

only for the destruction of debris waste, clean burning 

construction waste, and clean burning demolition waste.

7. Permits issued under this subsection shall be limited to a 

specific period of time deemed appropriate by (designated 

local official).

(C. An application for a permit under Section 000-7 A or 

000-7 B shall be accompanied by a processing fee of $----.4)

Section (000-8). Penalties for violation.

A. Any violation of this ordinance is punishable as a Class 1 

misdemeanor. (See § 15.2-1429 of the Code of Virginia.)

B. Each separate incident may be considered a new 

violation.

1

This provision shall be included in ordinances for urban areas. It may be 

included in ordinances for nonurban areas.

2

This provision shall be included in ordinances for urban areas. It may be 

included in ordinances for nonurban areas.

3

This provision shall be included in ordinances for jurisdictions within 

volatile organic compound emissions control areas. It may be included in 

ordinances for jurisdictions outside these areas.

4

The fee stipulation in this section is optional at the discretion of the 

jurisdiction.

VA.R. Doc. No. R09-1680; Filed January 21, 2009, 3:34 p.m. 

Final Regulation 

REGISTRAR'S NOTICE: The following regulatory action is 

exempt from the Administrative Process Act in accordance 

with § 2.2-4006 A 4 c of the Code of Virginia, which 

excludes regulations that are necessary to meet the 

requirements of federal law or regulations, provided such 

regulations do not differ materially from those required by 

federal law or regulation. The State Air Pollution Control 

Board will receive, consider and respond to petitions by any 

interested person at any time with respect to reconsideration 

or revision. 

Title of Regulation: 9VAC5-140. Regulation for Emissions 

Trading Programs (amending 9VAC5-140-1010, 9VAC5-

140-1020, 9VAC5-140-1060, 9VAC5-140-2010, 9VAC5-

140-2020, 9VAC5-140-3010, 9VAC5-140-3020).

Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the 

Code of Virginia; §§ 108, 109, 110 and 302 of the Clean Air 

Act; 40 CFR Part 51. 

Effective Date: March 18, 2009. 

Agency Contact: Mary E. Major, Department of 

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

Richmond, VA 23218, telephone (804) 698-4423 or email 

memajor@deq.virginia.gov. 

Summary:

Substantive amendments to the regulation include:

1. The definitions of “CAIR NOx Annual Trading 

Program,” “CAIR NOx Ozone Season Trading Program,” 

“CAIR SO2 Trading Program,” and “permitting 

authority” in 9VAC5-140-1020, 9VAC5-140-2020, and 

9VAC5-140-3020 are amended to clarify that they are not 

intended to create trading programs only for sources 

geographically located within the borders of the 

Commonwealth of Virginia. Therefore, qualifying sources 

within the Commonwealth are to become full participants 

in the EPA-administered regional CAIR trading programs 

for annual NOx, ozone season NOx, and annual SO2, along 

with sources permitted by authorities in all other states 

that are participating in the regional CAIR trading 

programs. The new language clarifies that the regulations 

should not be interpreted to limit the trading program to 

Virginia sources, which would be contrary to the intention 

that sources covered by other states’ approved CAIR rules 

or by the CAIR FIP may trade allowances with sources in 

the Commonwealth. In addition, the provisions of 9VAC5-

140-1010, 9VAC5-140-2010, and 9VAC5-140-3010 are 

amended to reflect this clarification.

2. The definition of “most stringent state or federal NOx 

emissions limitation” in 9VAC5-140-1020, 9VAC5-140-

2020, and 9VAC5-140-3020 is amended to clarify that the 

primary fuel, where it is not designated in the permit, is the 

fuel that would result in the lowest emission rate.

3. The definition of “cogeneration unit” in 9VAC5-140-

1020, 9VAC5-140-2020, and 9VAC5-140-3020 is amended 

so that most units co-firing biomass will be exempt from 

CAIR. Specifically, the calculation methodology is 

removed for the efficiency standard in the cogeneration 

unit definition to exclude energy input from biomass 

making it more likely that units co-firing biomass are able 

to meet the efficiency standard and qualify for exemption 

from the rule. In these same sections, technical 

amendments were made to add a new definition of 

"biomass" and revise the definition of "total energy input." 
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Part II 

Nox Annual Trading Program 

Article 1 

CAIR NOx Annual Trading Program General Provisions 

9VAC5-140-1010. Purpose and authority.

A. This part establishes general provisions and the 

designated representative, permitting, allowance, monitoring, 

and opt-in provisions for the State Clean Air Interstate Rule 

(CAIR) NOX Annual Trading Program, under § 110 of the 

Clean Air Act (42 USC § 7410) and 40 CFR 51.123, as a 

means of mitigating interstate transport of fine particulates 

and nitrogen oxides. 

B. The purpose of this part is not to create the CAIR NOX

Annual Trading Program only for CAIR NOX units and CAIR 

NOX sources geographically located within the borders of the 

Commonwealth of Virginia. Upon approval by EPA in 

accordance with 40 CFR 51.123 (o)(1) or (2), qualifying 

CAIR NOX units and CAIR NOX sources within the 

Commonwealth will become full participants in the EPAadministered regional CAIR NOX Annual Trading Program, 

which will include CAIR NOX units and CAIR NOX sources 

permitted by authorities in all other states that are 

participating in the regional CAIR NOX Annual Trading 

Program.

C. This part should not be interpreted to limit the CAIR 

NOX Annual Trading Program to Virginia CAIR NOX units 

and CAIR NOX sources, which would be contrary to the 

intention that CAIR NOX units and CAIR NOX sources 

covered by CAIR programs of other states approved in 

accordance with 40 CFR 51.123 (o)(1) or (2) or by the CAIR 

Federal Implementation Plan (subparts AA through II of 40 

CFR Part 97) may trade allowances with CAIR NOX units 

and CAIR NOX sources in the Commonwealth. While the 

CAIR NOX Annual Trading Program must include CAIR 

NOX units and CAIR NOX sources and permitting authorities 

beyond the borders of the Commonwealth, the permitting 

authority for Virginia (the State Air Pollution Control Board) 

has no authority to ensure compliance with this part by any 

permitting authority, person or entity outside the 

Commonwealth.

D. The board has the authority under the Code of Virginia to 

regulate the allocations of allowances, issuance of the budget 

permits, the administration of the opt-in provisions and other 

duties assigned to the permitting authority only for CAIR 

NOX units and CAIR NOX sources in Virginia. The board 

authorizes the administrator to assist the board in 

implementing the CAIR NOX Annual Trading Program by 

carrying out the functions set forth for the administrator in 

this part. 

9VAC5-140-1020. Definitions. 

A. As used in this part, all words or terms not defined here 

shall have the meaning given them in 9VAC5 Chapter 10 

(9VAC5-10), 9VAC5-10 (General Definitions) unless 

otherwise required by context. 

B. For the purpose of this part and any related use, the words 

or terms shall have the meaning given them in this paragraph

subsection. 

"Account number" means the identification number given by 

the administrator to each CAIR NOX Allowance Tracking 

System account. 

"Acid rain emissions limitation" means a limitation on 

emissions of sulfur dioxide or nitrogen oxides under the Acid 

Rain Program. 

"Acid Rain Program" means a multistate sulfur dioxide and 

nitrogen oxides air pollution control and emission reduction 

program established by the administrator under Title IV of the 

CAA and 40 CFR Parts 72 through 78. 

"Administrator" means the administrator of the United 

States Environmental Protection Agency or the 

administrator's duly authorized representative. 

"Allocate" or "allocation" means, with regard to CAIR NOX

allowances, the determination by a permitting authority or the 

administrator of the amount of such CAIR NOX allowances to 

be initially credited to a CAIR NOX unit, a new unit set-aside, 

a new energy efficiency/renewable energy unit set-aside, or 

other entity. 

"Allocation year" means the year in which allowance 

allocations are calculated for a future year. 

"Allowance transfer deadline" means, for a control period, 

midnight of March 1 (if it is a business day), or midnight of 

the first business day thereafter (if March 1 is not a business 

day), immediately following the control period and is the 

deadline by which a CAIR NOX allowance transfer must be 

submitted for recordation in a CAIR NOX source's compliance 

account in order to be used to meet the source's CAIR NOX

emissions limitation for such control period in accordance 

with 9VAC5-140-1540. 

"Alternate CAIR-designated representative" means, for a 

CAIR NOX source and each CAIR NOX unit at the source, the 

natural person who is authorized by the owners and operators 

of the source and all such units at the source, in accordance 

with Article 2 (9VAC5-140-1100 et seq.) and Article 9 

(9VAC5-140-1800 et seq.) of this part, to act on behalf of the 

CAIR-designated representative in matters pertaining to the 

CAIR NOX Annual Trading Program. If the CAIR NOX

source is also a CAIR SO2 source, then this natural person 

shall be the same person as the alternate CAIR-designated 

representative under the CAIR SO2 Trading Program. If the 

CAIR NOX source is also a CAIR NOX Ozone Season source, 
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then this natural person shall be the same person as the 

alternate CAIR-designated representative under the CAIR 

NOX Ozone Season Trading Program. If the CAIR NOX

source is also subject to the Acid Rain Program, then this 

natural person shall be the same person as the alternate 

designated representative under the Acid Rain Program. If the 

CAIR NOX source is also subject to the Hg Budget Trading 

Program, then this natural person shall be the same person as 

the alternate Hg designated representative under the Hg 

Budget Trading Program. 

"Automated data acquisition and handling system" or 

"DAHS" means that component of the continuous emission 

monitoring system, or other emissions monitoring system 

approved for use under Article 8 (9VAC5-140-1700 et seq.) 

of this part, designed to interpret and convert individual 

output signals from pollutant concentration monitors, flow 

monitors, diluent gas monitors, and other component parts of 

the monitoring system to produce a continuous record of the 

measured parameters in the measurement units required by 

Article 8 (9VAC5-140-1700 et seq.) of this part. 

“Biomass” means:

1. Any organic material grown for the purpose of being 

converted to energy;

2. Any organic byproduct of agriculture that can be 

converted into energy; or

3. Any material that can be converted into energy and is 

nonmerchantable for other purposes, that is segregated 

from other nonmerchantable material, and that is:

a. A forest-related organic resource, including mill 

residues, precommercial thinnings, slash, brush, or 

byproduct from conversion of trees to merchantable 

material; or

b. A wood material, including pallets, crates, dunnage, 

manufacturing and construction materials (other than 

pressure-treated, chemically-treated, or painted wood 

products), and landscape or right-of-way tree trimmings.

"Biomass energy" means energy derived from the 

combustion or electro-chemical reaction (as with a fuel cell) 

of hydrocarbon materials of a biogenic origin using a solid, 

liquid or gaseous fuel. Biomass fuel materials include, but are 

not limited to, animal wastes (e.g., manure) and clean plant 

materials (e.g., wood chips, waste paper and crop wastes). 

Biomass fuels exclude products that have emissions that 

include heavy metals and other neurotoxins (e.g., municipal 

solid wastes). Biomass fuel materials may be converted to a 

gaseous fuel, such as landfills (i.e., landfill gas) or waste 

treatment facilities (i.e., digester gas), or to liquid fuels (e.g., 

biodiesel). To be considered a biomass facility, the facility 

must (i) employ maximum achievable control technology and 

continuous emission stack monitors for all chemical 

emissions of concern to human health and (ii) be listed in one 

of the following categories: anaerobic digestion systems 

operating on animal or plant wastes, methane gas, combustion 

of clean wood, bark or other plant material; or on combustion 

of fuels derived entirely from processing of clean wood, bark, 

or other plant or animal material, including processing by 

gasification, pyrolysis, fermentation, distillation, or 

densification. 

"Boiler" means an enclosed fossil- or other fuel-fired 

combustion device used to produce heat and to transfer heat 

to recirculating water, steam, or other medium. 

"Bottoming-cycle cogeneration unit" means a cogeneration 

unit in which the energy input to the unit is first used to 

produce useful thermal energy and at least some of the reject 

heat from the useful thermal energy application or process is 

then used for electricity production. 

"CAIR-authorized account representative" means, with 

regard to a general account, a responsible natural person who 

is authorized, in accordance with Article 2 (9VAC5-140-1100 

et seq.), Article 6 (9VAC5-140-1500 et seq.), and Article 9 

(9VAC5-140-1800 et seq.) of this part, to transfer and 

otherwise dispose of CAIR NOX allowances held in the 

general account and, with regard to a compliance account, the 

CAIR-designated representative of the source. 

"CAIR-designated representative" means, for a CAIR NOX

source and each CAIR NOX unit at the source, the natural 

person who is authorized by the owners and operators of the 

source and all such units at the source, in accordance with 

Article 2 (9VAC5-140-1100 et seq.) and Article 9 (9VAC5-

140-1800 et seq.) of this part, to represent and legally bind 

each owner and operator in matters pertaining to the CAIR 

NOX Annual Trading Program. If the CAIR NOX source is 

also a CAIR SO2 source, then this natural person shall be the 

same person as the CAIR-designated representative under the 

CAIR SO2 Trading Program. If the CAIR NOX source is also 

a CAIR NOX Ozone Season source, then this natural person 

shall be the same person as the CAIR-designated 

representative under the CAIR NOX Ozone Season Trading 

Program. If the CAIR NOX source is also subject to the Acid 

Rain Program, then this natural person shall be the same 

person as the designated representative under the Acid Rain 

Program. If the CAIR NOX source is also subject to the Hg 

Budget Trading Program, then this natural person shall be the 

same person as the Hg designated representative under the Hg 

Budget Trading Program. 

"CAIR NOX allowance" means a limited authorization 

issued by a permitting authority or the administrator under 

Article 5 (9VAC5-140-1400 et seq.) of this part or 9VAC5-

140-1880, provisions of an implementation plan that are 

approved under 40 CFR 51.123(o)(1) or (2) or (p), or under 

subpart EE of 40 CFR Part 97 or 40 CFR 97.188, to emit one 

ton of nitrogen oxides during a control period of the specified 

calendar year for which the authorization is allocated or of 

any calendar year thereafter under the CAIR NOX Program. 
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An authorization to emit nitrogen oxides that is not issued 

under Article 5 (9VAC5-140-1400 et seq.) of this part or 

9VAC5-140-1880, provisions of an implementation plan that 

are approved under 40 CFR 51.123(o)(1) or (2) or (p), or 

under subpart EE of 40 CFR Part 97 or 40 CFR 97.188 shall 

not be a CAIR NOX allowance. No provision of the CAIR 

NOX Annual Trading Program, the CAIR permit application, 

the CAIR permit, or an exemption under 9VAC5-140-1040 B 

or 9VAC5-140-1050 and no provision of law shall be 

construed to limit the authority of the United States or board 

to terminate or limit such authorization, which does not 

constitute a property right. 

"CAIR NOX allowance deduction" or "deduct CAIR NOX

allowances" means the permanent withdrawal of CAIR NOX

allowances by the administrator from a compliance account, 

e.g., in order to account for a specified number of tons of total 

nitrogen oxides emissions from all CAIR NOX units at a 

CAIR NOX source for a control period, determined in 

accordance with Article 8 (9VAC5-140-1700 et seq.) of this 

part, or to account for excess emissions. 

"CAIR NOX Allowance Tracking System" means the system 

by which the administrator records allocations, deductions, 

and transfers of CAIR NOX allowances under the CAIR NOX

Annual Trading Program. Such allowances will be allocated, 

held, deducted, or transferred only as whole allowances. 

"CAIR NOX Allowance Tracking System account" means an 

account in the CAIR NOX Allowance Tracking System 

established by the administrator for purposes of recording the 

allocation, holding, transferring, or deducting of CAIR NOX

allowances. 

"CAIR NOX allowances held" or "hold CAIR NOX

allowances" means the CAIR NOX allowances recorded by 

the administrator, or submitted to the administrator for 

recordation, in accordance with Article 6 (9VAC5-140-1500 

et seq.), Article 7 (9VAC5-140-1600 et seq.), and Article 9 

(9VAC5-140-1800 et seq.) of this part, in a CAIR NOX

Allowance Tracking System account. 

"CAIR NOX Annual core trading budget" means the amount 

of tons of NOX emissions in the CAIR NOX Annual trading 

budget for the control period minus the new unit set-aside 

budget and the new energy efficiency/renewable energy unit 

set-aside budget. 

"CAIR NOX Annual trading budget" means the total number 

of NOX tons set forth in 9VAC5-140-1400 and apportioned to 

all CAIR NOX units and energy efficiency/renewable energy 

units in accordance with the CAIR NOX Annual Trading 

Program, for use in a given control period. 

"CAIR NOX Annual Trading Program" means a multistate 

nitrogen oxides air pollution control and emission reduction 

program approved and administered by the administrator in 

accordance with this part, subparts AA through II of 40 CFR 

Part 96, and 40 CFR 51.123 (o)(1) or (2) or established by the 

administrator in accordance with subparts AA through II of 

40 CFR Part 97 and 40 CFR 51.123(p) and 52.35, as a means 

of mitigating interstate transport of fine particulates and 

nitrogen oxides. 

"CAIR NOX emissions limitation" means, for a CAIR NOX

source, the tonnage equivalent, in NOX emissions in a control 

period, of the CAIR NOX allowances available for deduction 

for the source under 9VAC5-140-1540 A and B for the 

control period. 

"CAIR NOX Ozone Season source" means a source that is 

subject to the CAIR NOX Ozone Season Trading Program. 

"CAIR NOX Ozone Season Trading Program" means a 

multistate nitrogen oxides air pollution control and emission 

reduction program approved and administered by the 

administrator in accordance with Part III (9VAC5-140-2010 

et seq.) of this chapter, subparts AAAA through IIII of 40 

CFR Part 96, and 40 CFR 51.123 (aa)(1) or (2) and (bb)(1), 

(bb)(2), or (dd) or established by the administrator in 

accordance with subparts AAAA through IIII of 40 CFR Part 

97 and 40 CFR 51.123(ee) and 52.35, as a means of 

mitigating interstate transport of ozone and nitrogen oxides. 

"CAIR NOX source" means a source that includes one or 

more CAIR NOX units. 

"CAIR NOX unit" means a unit that is subject to the CAIR 

NOX Annual Trading Program under 9VAC5-140-1040 and, 

except for purposes of 9VAC5-140-1050 and Article 5 

(9VAC5-140-1400 et seq.) of this part, a CAIR NOX opt-in 

unit under Article 9 (9VAC5-140-1800 et seq.) of this part. 

"CAIR permit" means the terms and conditions in a Title V 

operating permit or state operating permit, issued by the 

permitting authority under Article 3 (9VAC5-140-1200 et 

seq.) of this part, including any permit revisions, specifying 

the CAIR NOX Annual Trading Program requirements 

applicable to a CAIR NOX source, to each CAIR NOX unit at 

the source, and to the owners and operators and the CAIRdesignated representative of the source and each such unit. 

"CAIR SO2 source" means a source that is subject to the 

CAIR SO2 Trading Program. 

"CAIR SO2 Trading Program" means a multistate sulfur 

dioxide air pollution control and emission reduction program 

approved and administered by the administrator in accordance 

with Part IV (9VAC5-140-3010 et seq.) of this chapter, 

subparts AAA through III of 40 CFR Part 96, and 40 CFR 

51.124 (o)(1) or (2) or established by the administrator in 

accordance with subparts AAA through III of 40 CFR Part 97 

and 40 CFR 51.124(r) and 52.36, as a means of mitigating 

interstate transport of fine particulates and sulfur dioxide. 

"Clean Air Act" or "CAA" means the Clean Air Act, 

42 USC § 7401 et seq. 
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"Coal" means any solid fuel classified as anthracite, 

bituminous, subbituminous, or lignite. 

"Coal-derived fuel" means any fuel (whether in a solid, 

liquid, or gaseous state) produced by the mechanical, thermal, 

or chemical processing of coal. 

"Coal-fired" means: 

1. Except for purposes of Article 5 (9VAC5-140-1400 et 

seq.) of this part, combusting any amount of coal or coalderived fuel, alone or in combination with any amount of 

any other fuel, during any year; or 

2. For purposes of Article 5 (9VAC5-140-1400 et seq.) of 

this part, combusting any amount of coal or coal-derived 

fuel, alone or in combination with any amount of any other 

fuel, during a specified year. 

"Cogeneration unit" means a stationary, fossil-fuel-fired 

boiler or stationary, fossil-fuel-fired combustion turbine: 

1. Having equipment used to produce electricity and useful 

thermal energy for industrial, commercial, heating, or 

cooling purposes through the sequential use of energy; and 

2. Producing during the 12-month period starting on the 

date the unit first produces electricity and during any 

calendar year after the calendar year in which the unit first 

produces electricity: 

a. For a topping-cycle cogeneration unit; :

(1) Useful thermal energy not less than 5.0% of total 

energy output; and 

(2) Useful power that, when added to one-half of useful 

thermal energy produced, is not less then 42.5% of total 

energy input, if useful thermal energy produced is 15% 

or more of total energy output, or not less than 45% of 

total energy input, if useful thermal energy produced is 

less than 15% of total energy output. 

b. For a bottoming-cycle cogeneration unit, useful power 

not less than 45% of total energy input.; and

3. Provided that the total energy input under subdivisions 2 

a (2) and 2 b of this definition shall equal the unit’s total 

energy input from all fuel except biomass if the unit is a 

boiler.

"Combustion turbine" means: 

1. An enclosed device comprising a compressor, a 

combustor, and a turbine and in which the flue gas 

resulting from the combustion of fuel in the combustor 

passes through the turbine, rotating the turbine; and 

2. If the enclosed device under subdivision 1 of this 

definition is combined cycle, any associated duct burner, 

heat recovery steam generator, and steam turbine. 

"Commence commercial operation" means, with regard to a 

unit: 

1. To have begun to produce steam, gas, or other heated 

medium used to generate electricity for sale or use, 

including test generation, except as provided in 9VAC5-

140-1050 and subdivision 8 of 9VAC5-140-1840. 

a. For a unit that is a CAIR NOX unit under 9VAC5-140-

1040 on the later of November 15, 1990, or the date the 

unit commences commercial operation as defined in 

subdivision 1 of this definition and that subsequently 

undergoes a physical change (other than replacement of 

the unit by a unit at the same source), such date shall 

remain the date of commencement of commercial 

operation of the unit, which shall continue to be treated 

as the same unit. 

b. For a unit that is a CAIR NOX unit under 9VAC5-140-

1040 on the later of November 15, 1990, or the date the 

unit commences commercial operation as defined in 

subdivision 1 of this definition and that is subsequently 

replaced by a unit at the same source (e.g., repowered), 

such date shall remain the replaced unit's date of 

commencement of commercial operation, and the 

replacement unit shall be treated as a separate unit with a 

separate date for commencement of commercial 

operation as defined in subdivision 1 or 2 of this 

definition as appropriate. 

2. Notwithstanding subdivision 1 of this definition and 

except as provided in 9VAC5-140-1050, for a unit that is 

not a CAIR NOX unit under 9VAC5-140-1040 on the later 

of November 15, 1990, or the date the unit commences 

commercial operation as defined in subdivision 1 of this 

definition, the unit's date for commencement of 

commercial operation shall be the date on which the unit 

becomes a CAIR NOX unit under 9VAC5-140-1040. 

a. For a unit with a date for commencement of 

commercial operation as defined in subdivision 2 of this 

definition and that subsequently undergoes a physical 

change (other than replacement of the unit by a unit at 

the same source), such date shall remain the date of 

commencement of commercial operation of the unit, 

which shall continue to be treated as the same unit. 

b. For a unit with a date for commencement of 

commercial operation as defined in subdivision 2 of this 

definition and that is subsequently replaced by a unit at 

the same source (e.g., repowered), such date shall remain 

the replaced unit's date of commencement of commercial 

operation, and the replacement unit shall be treated as a 

separate unit with a separate date for commencement of 

commercial operation as defined in subdivision 1 or 2 of 

this definition as appropriate. 
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"Commence operation" means: 

1. To have begun any mechanical, chemical, or electronic 

process, including, with regard to a unit, start-up of a unit's 

combustion chamber, except as provided in subdivision 8 

of 9VAC5-140-1840. 

2. For a unit that undergoes a physical change (other than 

replacement of the unit by a unit at the same source) after 

the date the unit commences operation as defined in 

subdivision 1 of this definition, such date shall remain the 

date of commencement of operation of the unit, which 

shall continue to be treated as the same unit. 

3. For a unit that is replaced by a unit at the same source 

(e.g., repowered) after the date the unit commences 

operation as defined in subdivision 1 of this definition, 

such date shall remain the replaced unit's date of 

commencement of operation, and the replacement unit 

shall be treated as a separate unit with a separate date for 

commencement of operation as defined in subdivision 1, 2, 

or 3 of this definition as appropriate, except as provided in 

subdivision 8 of 9VAC5-140-1840. 

"Common stack" means a single flue through which 

emissions from 2 or more units are exhausted. 

"Compliance account" means a CAIR NOX Allowance 

Tracking System account, established by the administrator for 

a CAIR NOX source under Article 6 (9VAC5-140-1500 et 

seq.) or Article 9 (9VAC5-140-1800 et seq.) of this part, in 

which any CAIR NOX allowance allocations for the CAIR 

NOX units at the source are initially recorded and in which are 

held any CAIR NOX allowances available for use for a 

control period in order to meet the source's CAIR NOX

emissions limitation in accordance with 9VAC5-140-1540. 

"Continuous emission monitoring system" or "CEMS" 

means the equipment required under Article 8 (9VAC5-140-

1700 et seq.) of this part to sample, analyze, measure, and 

provide, by means of readings recorded at least once every 15 

minutes (using an automated data acquisition and handling 

system (DAHS)), a permanent record of nitrogen oxides 

emissions, stack gas volumetric flow rate, stack gas moisture 

content, and oxygen or carbon dioxide concentration (as 

applicable), in a manner consistent with 40 CFR Part 75. The 

following systems are the principal types of continuous 

emission monitoring systems required under Article 8 

(9VAC5-140-1700 et seq.) of this part: 

1. A flow monitoring system, consisting of a stack flow 

rate monitor and an automated data acquisition and 

handling system and providing a permanent, continuous 

record of stack gas volumetric flow rate, in standard cubic 

feet per hour (scfh); 

2. A nitrogen oxides concentration monitoring system, 

consisting of a NOX pollutant concentration monitor and an 

automated data acquisition and handling system and 

providing a permanent, continuous record of NOX

emissions, in parts per million (ppm); 

3. A nitrogen oxides emission rate (or NOX-diluent) 

monitoring system, consisting of a NOX pollutant 

concentration monitor, a diluent gas (CO2 or O2) monitor, 

and an automated data acquisition and handling system and 

providing a permanent, continuous record of NOX

concentration, in parts per million (ppm), diluent gas 

concentration, in percent CO2 or O2, and NOX emission 

rate, in pounds per million British thermal units 

(lb/mmBtu); 

4. A moisture monitoring system, as defined in 40 CFR 

75.11(b)(2) and providing a permanent, continuous record 

of the stack gas moisture content, in percent H2O; 

5. A carbon dioxide monitoring system, consisting of a 

CO2 pollutant concentration monitor (or an oxygen 

monitor plus suitable mathematical equations from which 

the CO2 concentration is derived) and an automated data 

acquisition and handling system and providing a 

permanent, continuous record of CO2 emissions, in percent 

CO2; and 

6. An oxygen monitoring system, consisting of an O2

concentration monitor and an automated data acquisition 

and handling system and providing a permanent, 

continuous record of O2, in percent O2. 

"Control period" means the period beginning January 1 of a 

calendar year, except as provided in 9VAC5-140-1060 C 2, 

and ending on December 31 of the same year, inclusive. 

"EERE proponent" means any person who owns, leases, 

operates or controls an energy efficiency unit or a renewable 

energy unit, or an EERE representative. 

"EERE representative" means a party that aggregates one or 

more energy efficiency units or renewable energy units. An 

EERE representative may include, without limitation, a 

common owner of projects, an energy service company, an 

emission trading broker or a state or municipal entity. 

"Emissions" means air pollutants exhausted from a unit or 

source into the atmosphere, as measured, recorded, and 

reported to the administrator by the CAIR-designated 

representative and as determined by the administrator in 

accordance with Article 8 (9VAC5-140-1700 et seq.) of this 

part. 

"Energy efficiency unit" means an end-use energy efficiency 

project implemented after January 1, 2006, that reduces 

electricity consumption at a building or facility located in 

Virginia according to an energy efficiency verification 

protocol acceptable to the permitting authority. Projects 

resulting in energy savings at a CAIR NOX unit are not 

encompassed within this definition. 
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"Excess emissions" means any ton of nitrogen oxides 

emitted by the CAIR NOX units at a CAIR NOX source during 

a control period that exceeds the CAIR NOX emissions 

limitation for the source. 

"Fossil fuel" means natural gas, petroleum, coal, or any form 

of solid, liquid, or gaseous fuel derived from such material. 

"Fossil-fuel-fired" means, with regard to a unit, combusting 

any amount of fossil fuel in any calendar year. 

"Fuel oil" means any petroleum-based fuel (including diesel 

fuel or petroleum derivatives such as oil tar) and any recycled 

or blended petroleum products or petroleum byproducts used 

as a fuel whether in a liquid, solid, or gaseous state. 

"General account" means a CAIR NOX Allowance Tracking 

System account, established under Article 6 (9VAC5-140-

1500 et seq.) of this part, that is not a compliance account. 

"Generator" means a device that produces electricity. 

"Gross electrical output" means, with regard to a 

cogeneration unit, electricity made available for use, 

including any such electricity used in the power production 

process (which process includes, but is not limited to, any onsite processing or treatment of fuel combusted at the unit and 

any on-site emission controls). 

"Heat input" means, with regard to a specified period of 

time, the product (in mmBtu/time) of the gross calorific value 

of the fuel (in Btu/lb) divided by 1,000,000 Btu/mmBtu and 

multiplied by the fuel feed rate into a combustion device (in 

lb of fuel/time), as measured, recorded, and reported to the 

administrator by the CAIR-designated representative and 

determined by the administrator in accordance with Article 8 

(9VAC5-140-1700 et seq.) of this part and excluding the heat 

derived from preheated combustion air, recirculated flue 

gases, or exhaust from other sources. 

"Heat input rate" means the amount of heat input (in 

mmBtu) divided by unit operating time (in hr) or, with regard 

to a specific fuel, the amount of heat input attributed to the 

fuel (in mmBtu) divided by the unit operating time (in hr) 

during which the unit combusts the fuel. 

"Hg Budget Trading Program" means a multistate Hg air 

pollution control and emission reduction program approved 

and administered by the administrator in accordance with Part 

VI (9VAC5-140-5010 et seq.) of this chapter and 40 CFR 

60.24(h)(6), or established by the administrator under § 111 

of the Clean Air Act, as a means of reducing national Hg 

emissions. 

"Implementation plan" means the portion or portions of the 

state implementation plan, or the most recent revision thereof, 

which has been approved in subpart VV of 40 CFR Part 52 by 

the administrator under § 110 of the CAA, or promulgated 

under § 110(c) of the CAA, or promulgated or approved 

pursuant to regulations promulgated under § 301(d) of the 

CAA and that implements the relevant requirements of the 

CAA. 

"Life-of-the-unit, firm power contractual arrangement" 

means a unit participation power sales agreement under 

which a utility or industrial customer reserves, or is entitled to 

receive, a specified amount or percentage of nameplate 

capacity and associated energy generated by any specified 

unit and pays its proportional amount of such unit's total 

costs, pursuant to a contract: 

1. For the life of the unit; 

2. For a cumulative term of no less than 30 years, including 

contracts that permit an election for early termination; or 

3. For a period no less than 25 years or 70% of the 

economic useful life of the unit determined as of the time 

the unit is built, with option rights to purchase or release 

some portion of the nameplate capacity and associated 

energy generated by the unit at the end of the period. 

"Maximum design heat input" means the maximum amount 

of fuel per hour (in Btu/hr) that a unit is capable of 

combusting on a steady state basis as of the initial installation 

of the unit as specified by the manufacturer of the unit. 

"Monitoring system" means any monitoring system that 

meets the requirements of Article 8 (9VAC5-140-1700 et 

seq.) of this part, including a continuous emissions 

monitoring system, an alternative monitoring system, or an 

excepted monitoring system under 40 CFR Part 75. 

"Most stringent state or federal NOX emissions limitation" 

means the lowest NOX emissions limitation (in lb/mmBtu) 

that is applicable to the unit under the Virginia Air Pollution 

Control Law or federal law, regardless of the averaging 

period to which the emissions limitation applies. In cases 

where a unit is subject to a permit that provides for the use of 

multiple fuels, the primary fuel shall be used as the basis to 

determine the most stringent state or federal NOX emissions 

limitation. The primary fuel shall be the fuel designated in the 

permit as such or resulting in the lowest emissions rate.

"Nameplate capacity" means, starting from the initial 

installation of a generator, the maximum electrical generating 

output (in MWe) that the generator is capable of producing on 

a steady state basis and during continuous operation (when 

not restricted by seasonal or other deratings) as of such 

installation as specified by the manufacturer of the generator 

or, starting from the completion of any subsequent physical 

change in the generator resulting in an increase in the 

maximum electrical generating output (in MWe) that the 

generator is capable of producing on a steady state basis and 

during continuous operation (when not restricted by seasonal 

or other deratings), such increased maximum amount as of 

such completion as specified by the person conducting the 

physical change. 
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"New energy efficiency/renewable energy unit set-aside 

budget" means the amount of tons of NOX emissions in the 

CAIR NOX Annual trading budget for each control period in 

2009 and thereafter multiplied by 1.0%, rounded to the 

nearest whole allowance as appropriate. 

"New unit set-aside budget" means the amount of tons of 

NOX emissions in the CAIR NOX Annual trading budget for 

the control period to which the new unit set-aside applies 

multiplied by the new unit set-aside percentage, rounded to 

the nearest whole allowance as appropriate. 

"New unit set-aside percentage" means 4.0% for each 

control period in 2009 through 2013 or 1.0% for each control 

period in 2014 and thereafter. 

"Nonattainment condition" means a condition where any 

area is shown by air quality monitoring data or that is shown 

by an air quality impact analysis (using 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, regardless of whether such demonstration is based 

on current or projected emissions data. 

"Oil-fired" means, for purposes of Article 5 (9VAC5-140-

1400 et seq.) of this part, combusting fuel oil for more than 

15% of the annual heat input in a specified year and not 

qualifying as coal-fired. 

"Operator" means any person who operates, controls, or 

supervises a CAIR NOX unit or a CAIR NOX source and shall 

include, but not be limited to, any holding company, utility 

system, or plant manager of such a unit or source. 

"Owner" means any of the following persons: 

1. With regard to a CAIR NOX source or a CAIR NOX unit 

at a source, respectively: 

a. Any holder of any portion of the legal or equitable title 

in a CAIR NOX unit at the source or the CAIR NOX unit; 

b. Any holder of a leasehold interest in a CAIR NOX unit 

at the source or the CAIR NOX unit; or 

c. Any purchaser of power from a CAIR NOX unit at the 

source or the CAIR NOX unit under a life of the unit, 

firm power contractual arrangement; provided that, 

unless expressly provided for in a leasehold agreement, 

the owner shall not include a passive lessor, or a person 

who has an equitable interest through such lessor, whose 

rental payments are not based (either directly or 

indirectly) on the revenues or income from such CAIR 

NOX unit; or 

2. With regard to any general account, any person who has 

an ownership interest with respect to the CAIR NOX

allowances held in the general account and who is subject 

to the binding agreement for the CAIR-authorized account 

representative to represent the person's ownership interest 

with respect to CAIR NOX allowances. 

"Permitting authority" means the state air pollution control 

agency, local agency, other state agency, or other agency 

authorized by the administrator to issue or revise permits to 

meet the requirements of the CAIR NOX Annual Trading 

Program in accordance with Article 3 (9VAC5-140-1200 et 

seq.) of this part or, if no such agency has been so authorized, 

the administrator. For the Commonwealth of Virginia, the 

permitting authority shall be the State Air Pollution Control 

Board. The board will issue or revise permits to meet the 

requirements of the CAIR NOX Annual Trading Program in 

accordance with Article 3 (9VAC5-140-1200 et seq.) of this 

part.

"Potential electrical output capacity" means 33.0% 33% of a 

unit's maximum design heat input, divided by 3,413 

Btu/kWh, divided by 1,000 kWh/MWh, and multiplied by 

8,760 hr/yr. 

"Receive" or "receipt of" means, when referring to the 

permitting authority or the administrator, to come into 

possession of a document, information, or correspondence 

(whether sent in hard copy or by authorized electronic 

transmission), as indicated in an official log, or by a notation 

made on the document, information, or correspondence, by 

the permitting authority or the administrator in the regular 

course of business. 

"Recordation," "record," or "recorded" means, with regard to 

CAIR NOX allowances, the movement of CAIR NOX

allowances by the administrator into or between CAIR NOX

Allowance Tracking System accounts, for purposes of 

allocation, transfer, or deduction. 

"Reference method" means any direct test method of 

sampling and analyzing for an air pollutant as specified in 40 

CFR 75.22. 

"Renewable energy unit" means an electric generator that 

began commercial operation after January 1, 2006, and is 

powered by (i) wind, solar, ocean thermal, wave, tidal, 

geothermal, or biomass energy; or (ii) fuel cells powered by 

hydrogen generated by a renewable energy source. 

Renewable energy does not include energy derived from (i) 

material that has been treated or painted or derived from 

demolition or construction material; (ii) municipal, industrial 

or other multiple source solid waste; and (iii) co-firing of 

biomass with fossil fuels or solid waste. 

"Replacement," "replace," or "replaced" means, with regard 

to a unit, the demolishing of a unit, or the permanent 

shutdown and permanent disabling of a unit, and the 

construction of another unit (the replacement unit) to be used 

instead of the demolished or shutdown unit (the replaced 

unit). 

"Repowered" means, with regard to a unit, replacement of a 

coal-fired boiler with one of the following coal-fired 

technologies at the same source as the coal-fired boiler: 
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1. Atmospheric or pressurized fluidized bed combustion; 

2. Integrated gasification combined cycle; 

3. Magnetohydrodynamics; 

4. Direct and indirect coal-fired turbines; 

5. Integrated gasification fuel cells; or 

6. As determined by the administrator in consultation with 

the Secretary of Energy, a derivative of one or more of the 

technologies under subdivisions 1 through 5 of this 

definition and any other coal-fired technology capable of 

controlling multiple combustion emissions simultaneously 

with improved boiler or generation efficiency and with 

significantly greater waste reduction relative to the 

performance of technology in widespread commercial use 

as of January 1, 2005. 

"Sequential use of energy" means: 

1. For a topping-cycle cogeneration unit, the use of reject 

heat from electricity production in a useful thermal energy 

application or process; or 

2. For a bottoming-cycle cogeneration unit, the use of 

reject heat from useful thermal energy application or 

process in electricity production. 

"Serial number" means, for a CAIR NOX allowance, the 

unique identification number assigned to each CAIR NOX

allowance by the administrator. 

"Solid waste incineration unit" means a stationary, fossilfuel-fired boiler or stationary, fossil-fuel-fired combustion 

turbine that is a "solid waste incineration unit" as defined in 

§ 129(g)(1) of the Clean Air Act. 

"Source" means all buildings, structures, or installations 

located in one or more contiguous or adjacent properties 

under common control of the same person or persons. For 

purposes of § 502(c) of the Clean Air Act, a "source," 

including a "source" with multiple units, shall be considered a 

single "facility." 

"State" means the Commonwealth of Virginia. The term 

"state" shall have its conventional meaning where such 

meaning is clear from the context. 

"State operating permit" means a permit issued under Article 

5 (9VAC5-80-800 et seq.) of Part II of 9VAC5 Chapter 80

9VAC5-80 (Permits for Stationary Sources). 

"State operating permit regulations" means the regulations 

codified in Article 5 (9VAC5-80-800 et seq.) of Part II of 

9VAC5 Chapter 80 9VAC5-80 (Permits for Stationary 

Sources). 

"Submit or serve" means to send or transmit a document, 

information, or correspondence to the person specified in 

accordance with the applicable regulation: 

1. In person; 

2. By United States Postal Service; or 

3. By other means of dispatch or transmission and delivery. 

Compliance with any "submission" or "service" deadline 

shall be determined by the date of dispatch, transmission, 

or mailing and not the date of receipt. 

"Title V operating permit" means a permit issued under 

Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 

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

for Stationary Sources). 

"Title V operating permit regulations" means the regulations 

codified in Article 1 (9VAC5-80-50 et seq.), Article 2 

(9VAC5-80-310 et seq.), Article 3 (9VAC5-80-360 et seq.), 

and Article 4 (9VAC5-80-710 et seq.) of Part II of 9VAC5-80 

(Permits for Stationary Sources). 

"Ton" means 2,000 pounds. For the purpose of determining 

compliance with the CAIR NOX emissions limitation, total 

tons of nitrogen oxides emissions for a control period shall be 

calculated as the sum of all recorded hourly emissions (or the 

mass equivalent of the recorded hourly emission rates) in 

accordance with Article 8 (9VAC5-140-1700 et seq.) of this 

part, but with any remaining fraction of a ton equal to or 

greater than 0.50 tons deemed to equal one ton and any 

remaining fraction of a ton less than 0.50 tons deemed to 

equal zero tons. 

"Topping-cycle cogeneration unit" means a cogeneration 

unit in which the energy input to the unit is first used to 

produce useful power, including electricity, and at least some 

of the reject heat from the electricity production is then used 

to provide useful thermal energy. 

"Total energy input" means, with regard to a cogeneration 

unit, total energy of all forms supplied to the cogeneration 

unit, excluding energy produced by the cogeneration unit 

itself. Each form of energy supplied shall be measured by the 

lower heating value of that form of energy calculated as 

follows:

LHV = HHV – 10.55(W + 9H)

where:

LHV = lower heating value of fuel in Btu/lb.

HHV = higher heating value of fuel in Btu/lb.

W = Weight percent of moisture in fuel.

H = Weight percent of hydrogen in fuel.

"Total energy output" means, with regard to a cogeneration 

unit, the sum of useful power and useful thermal energy 

produced by the cogeneration unit. 

"Unit" means a stationary, fossil-fuel-fired boiler or 

combustion turbine or other stationary, fossil-fuel-fired 

combustion device. 
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"Unit operating day" means a calendar day in which a unit 

combusts any fuel. 

"Unit operating hour" or "hour of unit operation" means an 

hour in which a unit combusts any fuel. 

"Useful power" means, with regard to a cogeneration unit, 

electricity or mechanical energy made available for use, 

excluding any such energy used in the power production 

process (which process includes, but is not limited to, any onsite processing or treatment of fuel combusted at the unit and 

any on-site emission controls). 

"Useful thermal energy" means, with regard to a 

cogeneration unit, thermal energy that is: 

1. Made available to an industrial or commercial process 

(not a power production process), excluding any heat 

contained in condensate return or makeup water; 

2. Used in a heating application (e.g., space heating or 

domestic hot water heating); or 

3. Used in a space cooling application (i.e., thermal energy 

used by an absorption chiller). 

"Utility power distribution system" means the portion of an 

electricity grid owned or operated by a utility and dedicated 

to delivering electricity to customers. 

9VAC5-140-1060. Standard requirements. 

A. Permit requirements shall be as follows: 

1. The CAIR-designated representative of each CAIR NOX

source required to have a Title V operating permit and each 

CAIR NOX unit required to have a Title V operating permit 

at the source shall: 

a. Submit to the permitting authority a complete CAIR 

permit application under 9VAC5-140-1220 in 

accordance with the deadlines specified in 9VAC5-140-

1210; and 

b. Submit in a timely manner any supplemental 

information that the permitting authority determines is 

necessary in order to review a CAIR permit application 

and issue or deny a CAIR permit. 

2. The owners and operators of each CAIR NOX source 

required to have a Title V operating permit and each CAIR 

NOX unit required to have a Title V operating permit at the 

source shall have a CAIR permit issued by the permitting 

authority under Article 3 (9VAC5-140-1200 et seq.) of this 

part for the source and operate the source and the unit in 

compliance with such CAIR permit. 

3. Except as provided in Article 9 (9VAC5-140-1800 et 

seq.) of this part, the owners and operators of a CAIR NOX

source that is not otherwise required to have a Title V 

operating permit and each CAIR NOX unit that is not 

otherwise required to have a Title V operating permit are 

not required to submit a CAIR permit application, and to 

have a CAIR permit, under Article 3 (9VAC5-140-1200 et 

seq.) of this part for such CAIR NOX source and such 

CAIR NOX unit. 

B. Monitoring, reporting, and recordkeeping shall be 

performed as follows: 

1. The owners and operators, and the CAIR-designated 

representative, of each CAIR NOX source and each CAIR 

NOX unit at the source shall comply with the monitoring, 

reporting, and recordkeeping requirements of Article 8 

(9VAC5-140-1700 et seq.) of this part. 

2. The emissions measurements recorded and reported in 

accordance with Article 8 (9VAC5-140-1700 et seq.) of 

this part shall be used to determine compliance by each 

CAIR NOX source with the CAIR NOX emissions 

limitation under subsection C of this section. 

C. Nitrogen oxides emission requirements shall be as 

follows: 

1. As of the allowance transfer deadline for a control 

period, the owners and operators of each CAIR NOX

source and each CAIR NOX unit at the source shall hold, in 

the source's compliance account, CAIR NOX allowances 

available for compliance deductions for the control period 

under 9VAC5-140-1540 A in an amount not less than the 

tons of total nitrogen oxides emissions for the control 

period from all CAIR NOX units at the source, as 

determined in accordance with Article 8 (9VAC5-140-

1700 et seq.) of this part. 

2. A CAIR NOX unit shall be subject to the requirements 

under subdivision 1 of this subsection for the control 

period starting on the later of January 1, 2009, or the 

deadline for meeting the unit's monitor certification 

requirements under 9VAC5-140-1700 C 1, 2, or 5 and for 

each control period thereafter. 

3. A CAIR NOX allowance shall not be deducted, for 

compliance with the requirements under subdivision 1 of 

this subsection, for a control period in a calendar year 

before the year for which the CAIR NOX allowance was 

allocated. 

4. CAIR NOX allowances shall be held in, deducted from, 

or transferred into or among CAIR NOX Allowance 

Tracking System accounts in accordance with Article 5 

(9VAC5-140-1400 et seq.), Article 6 (9VAC5-140-1500 et 

seq.), Article 7 (9VAC5-140-1600 et seq.), and Article 9 

(9VAC5-140-1800 et seq.) of this part. 

5. A CAIR NOX allowance is a limited authorization to 

emit one ton of nitrogen oxides in accordance with the 

CAIR NOX Annual Trading Program. No provision of the 

CAIR NOX Annual Trading Program, the CAIR permit 

application, the CAIR permit, or an exemption under 

9VAC5-140-1050 and no provision of law shall be 
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construed to limit the authority of the state or the United 

States to terminate or limit such authorization. 

6. A CAIR NOX allowance does not constitute a property 

right. 

7. Upon recordation by the administrator under Article 5 

(9VAC5-140-1400 et seq.), Article 6 (9VAC5-140-1500 et 

seq.), Article 7 (9VAC5-140-1600 et seq.), or Article 9 

(9VAC5-140-1800 et seq.) of this part, every allocation, 

transfer, or deduction of a CAIR NOX allowance to or from 

a CAIR NOX source's compliance account is incorporated 

automatically in any CAIR permit of the source that 

includes the CAIR NOX unit. 

D. If a CAIR NOX source emits nitrogen oxides during any 

control period in excess of the CAIR NOX emissions 

limitation, then: 

1. The owners and operators of the source and each CAIR 

NOX unit at the source shall surrender the CAIR NOX

allowances required for deduction under 9VAC5-140-1540 

D 1 and pay any fine, penalty, or assessment or comply 

with any other remedy imposed, for the same violations, 

under the Clean Air Act or the Virginia Air Pollution 

Control Law; and 

2. Each ton of such excess emissions and each day of such 

control period shall constitute a separate violation of this 

article, the Clean Air Act, and the Virginia Air Pollution 

Control Law. 

E. Recordkeeping and reporting shall be performed as 

follows: 

1. Unless otherwise provided, the owners and operators of 

the CAIR NOX source and each CAIR NOX unit at the 

source shall keep on site at the source each of the 

following documents for a period of five years from the 

date the document is created. This period may be extended 

for cause, at any time before the end of five years, in 

writing by the permitting authority or the administrator. 

a. The certificate of representation under 9VAC5-140-

1130 for the CAIR-designated representative for the 

source and each CAIR NOX unit at the source and all 

documents that demonstrate the truth of the statements in 

the certificate of representation; provided that the 

certificate and documents shall be retained on site at the 

source beyond such five-year period until such 

documents are superseded because of the submission of a 

new certificate of representation under 9VAC5-140-1130 

changing the CAIR-designated representative. 

b. All emissions monitoring information, in accordance 

with Article 8 (9VAC5-140-1700 et seq.) of this part, 

provided that to the extent that Article 8 (9VAC5-140-

1700 et seq.) of this part provides for a three-year period 

for recordkeeping, the three-year period shall apply. 

c. Copies of all reports, compliance certifications, and 

other submissions and all records made or required under 

the CAIR NOX Annual Trading Program. 

d. Copies of all documents used to complete a CAIR 

permit application and any other submission under the 

CAIR NOX Annual Trading Program or to demonstrate 

compliance with the requirements of the CAIR NOX

Annual Trading Program. 

2. The CAIR-designated representative of a CAIR NOX

source and each CAIR NOX unit at the source shall submit 

the reports required under the CAIR NOX Annual Trading 

Program, including those under Article 8 (9VAC5-140-

1700 et seq.) of this part. 

F. Liability shall be assigned as follows: 

1. Each CAIR NOX source and each CAIR NOX unit shall 

meet the requirements of the CAIR NOX Annual Trading 

Program. 

2. Any provision of the CAIR NOX Annual Trading 

Program that applies to a CAIR NOX source or the CAIRdesignated representative of a CAIR NOX source shall also 

apply to the owners and operators of such source and of the 

CAIR NOX units at the source. 

3. Any provision of the CAIR NOX Annual Trading 

Program that applies to a CAIR NOX unit or the CAIRdesignated representative of a CAIR NOX unit shall also 

apply to the owners and operators of such unit. 

G. No provision of the CAIR NOX Annual Trading Program, 

a CAIR permit application, a CAIR permit, or an exemption 

under 9VAC5-140-1050 shall be construed as exempting or 

excluding the owners and operators, and the CAIR-designated 

representative, of a CAIR NOX source or CAIR NOX unit 

from compliance with any other provision of the applicable 

implementation plan, a state operating permit, the Virginia 

Air Pollution Control Law, or the Clean Air Act. 

Part III 

NOx Ozone Season Trading Program 

Article 1 

CAIR NOx Ozone Season Trading Program General 

Provisions 

9VAC5-140-2010. Purpose and authority.

A. This part establishes general provisions and the 

designated representative, permitting, allowance, monitoring, 

and opt-in provisions for the State Clean Air Interstate Rule 

(CAIR) NOX Ozone Season Trading Program, under § 110 of 

the Clean Air Act and 40 CFR 51.123, as a means of 

mitigating interstate transport of ozone and nitrogen oxides. 

B. The purpose of this part is not to create the CAIR NOX

Ozone Season Trading Program only for CAIR NOX Ozone 

Season units and CAIR NOX Ozone Season sources 
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geographically located within the borders of the 

Commonwealth of Virginia. Upon approval by EPA in 

accordance with 40 CFR 51.123 (o)(1) or (2), qualifying 

CAIR NOX Ozone Season units and CAIR NOX Ozone 

Season sources within the Commonwealth will become full 

participants in the EPA-administered regional CAIR NOX

Ozone Season Trading Program, which will include CAIR 

NOX Ozone Season units and CAIR NOX Ozone Season 

sources permitted by authorities in all other states that are 

participating in the regional CAIR NOX Ozone Season 

Trading Program.

C. This part should not be interpreted to limit the CAIR 

NOX Ozone Season Trading Program to Virginia CAIR NOX

Ozone Season units and CAIR NOX Ozone Season sources, 

which would be contrary to the intention that CAIR NOX

Ozone Season units and CAIR NOX Ozone Season sources 

covered by CAIR programs of other states approved in 

accordance with 40 CFR 51.123 (o)(1) or (2) or by the CAIR 

Federal Implementation Plan (subparts AA through II of 40 

CFR Part 97) may trade allowances with CAIR NOX Ozone 

Season units and CAIR NOX Ozone Season sources in the 

Commonwealth. While the CAIR NOX Ozone Season 

Trading Program must include CAIR NOX Ozone Season 

units and CAIR NOX Ozone Season sources and permitting 

authorities beyond the borders of the Commonwealth, the 

permitting authority for Virginia (the State Air Pollution 

Control Board) has no authority to ensure compliance with 

this part by any permitting authority, person or entity outside 

the Commonwealth.

D. The board has the authority under the Code of Virginia to 

regulate the allocations of allowances, issuance of the budget 

permits, the administration of the opt-in provisions and other 

duties assigned to the permitting authority only for CAIR 

NOX Ozone Season units and CAIR NOX Ozone Season 

sources in Virginia. The board authorizes the administrator to 

assist the board in implementing the CAIR NOX Ozone 

Season Trading Program by carrying out the functions set 

forth for the administrator in this part. 

9VAC5-140-2020. Definitions. 

A. As used in this part, all words or terms not defined here 

shall have the meaning given them in 9VAC5 Chapter 10 

(9VAC5-10), 9VAC5-10 (General Definitions) unless 

otherwise required by context . 

B. For the purpose of this part and any related use, the words 

or terms shall have the meaning given them in this paragraph

subsection. 

"Account number" means the identification number given by 

the administrator to each CAIR NOX Ozone Season 

Allowance Tracking System account. 

"Acid Rain emissions limitation" means a limitation on 

emissions of sulfur dioxide or nitrogen oxides under the Acid 

Rain Program. 

"Acid Rain Program" means a multistate sulfur dioxide and 

nitrogen oxides air pollution control and emission reduction 

program established by the administrator under Title IV of the 

CAA and 40 CFR Parts 72 through 78. 

"Administrator" means the administrator of the United 

States Environmental Protection Agency or the 

administrator's duly authorized representative. 

"Allocate" or "allocation" means, with regard to CAIR NOX

Ozone Season allowances, the determination by a permitting 

authority or the administrator of the amount of such CAIR 

NOX Ozone Season allowances to be initially credited to a 

CAIR NOX Ozone Season unit, a new unit set-aside, a new 

energy efficiency/renewable energy set-aside, or other entity. 

"Allocation year" means the year in which allowance 

allocations are calculated for a future year. 

"Allowance transfer deadline" means, for a control period, 

midnight of November 30 (if it is a business day), or midnight 

of the first business day thereafter (if November 30 is not a 

business day), immediately following the control period and 

is the deadline by which a CAIR NOX Ozone Season 

allowance transfer must be submitted for recordation in a 

CAIR NOX Ozone Season source's compliance account in 

order to be used to meet the source's CAIR NOX Ozone 

Season emissions limitation for such control period in 

accordance with 9VAC5-140-2540. 

"Alternate CAIR-designated representative" means, for a 

CAIR NOX Ozone Season source and each CAIR NOX Ozone 

Season unit at the source, the natural person who is 

authorized by the owners and operators of the source and all 

such units at the source, in accordance with Article 2 

(9VAC5-140-2100 et seq.) and Article 9 (9VAC5-140-2800 

et seq.) of this part, to act on behalf of the CAIR-designated 

representative in matters pertaining to the CAIR NOX Ozone 

Season Trading Program. If the CAIR NOX Ozone Season 

source is also a CAIR NOX source, then this natural person 

shall be the same person as the alternate CAIR-designated 

representative under the CAIR NOX Annual Trading 

Program. If the CAIR NOX Ozone Season source is also a 

CAIR SO2 source, then this natural person shall be the same 

person as the alternate CAIR-designated representative under 

the CAIR SO2 Trading Program. If the CAIR NOX Ozone 

Season source is also subject to the Acid Rain Program, then 

this natural person shall be the same person as the alternate 

designated representative under the Acid Rain Program. If the 

CAIR NOX Ozone Season source is also subject to the Hg 

Budget Trading Program, then this natural person shall be the 

same person as the alternate Hg designated representative 

under the Hg Budget Trading Program. 

"Automated data acquisition and handling system" or 

"DAHS" means that component of the continuous emission 

monitoring system, or other emissions monitoring system 

approved for use under Article 8 (9VAC5-140-2700 et seq.) 
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of this part, designed to interpret and convert individual 

output signals from pollutant concentration monitors, flow 

monitors, diluent gas monitors, and other component parts of 

the monitoring system to produce a continuous record of the 

measured parameters in the measurement units required by 

Article 8 (9VAC5-140-2700 et seq.) of this part. 

"Biomass" means:

1. Any organic material grown for the purpose of being 

converted to energy;

2. Any organic byproduct of agriculture that can be 

converted into energy; or

3. Any material that can be converted into energy and is 

nonmerchantable for other purposes, that is segregated 

from other nonmerchantable material, and that is:

a. A forest-related organic resource, including mill 

residues, precommercial thinnings, slash, brush, or 

byproduct from conversion of trees to merchantable 

material; or

b. A wood material, including pallets, crates, dunnage, 

manufacturing and construction materials (other than 

pressure-treated, chemically-treated, or painted wood 

products), and landscape or right-of-way tree trimmings.

"Biomass energy" means energy derived from the 

combustion or electro-chemical reaction (as with a fuel cell) 

of hydrocarbon materials of a biogenic origin using a solid, 

liquid or gaseous fuel. Biomass fuel materials include, but are 

not limited to, animal wastes (e.g., manure) and clean plant 

materials (e.g. wood chips, waste paper and crop wastes). 

Biomass fuels exclude products that have emissions that 

include heavy metals and other neurotoxins (e.g., municipal 

solid wastes). Biomass fuel materials may be converted to a 

gaseous fuel, such as landfills (i.e., landfill gas) or waste 

treatment facilities (i.e., digester gas), or to liquid fuels (e.g., 

biodiesel). To be considered a biomass facility, the facility 

must (i) employ maximum achievable control technology and 

continuous emission stack monitors for all chemical 

emissions of concern to human health and (ii) be listed in one 

of the following categories: anaerobic digestion systems 

operating on animal or plant wastes, methane gas, combustion 

of clean wood, bark or other plant material; or on combustion 

of fuels derived entirely from processing of clean wood, bark, 

or other plant or animal material, including processing by 

gasification, pyrolysis, fermentation, distillation, or 

densification. 

"Boiler" means an enclosed fossil- or other-fuel-fired 

combustion device used to produce heat and to transfer heat 

to recirculating water, steam, or other medium. 

"Bottoming-cycle cogeneration unit" means a cogeneration 

unit in which the energy input to the unit is first used to 

produce useful thermal energy and at least some of the reject 

heat from the useful thermal energy application or process is 

then used for electricity production. 

"CAIR-authorized account representative" means, with 

regard to a general account, a responsible natural person who 

is authorized, in accordance with Article 2 (9VAC5-140-2100 

et seq.), Article 6 (9VAC5-140-2500 et seq.) and Article 9 

(9VAC5-140-2800 et seq.) of this part, to transfer and 

otherwise dispose of CAIR NOX Ozone Season allowances 

held in the general account and, with regard to a compliance 

account, the CAIR-designated representative of the source. 

"CAIR-designated representative" means, for a CAIR NOX

Ozone Season source and each CAIR NOX Ozone Season unit 

at the source, the natural person who is authorized by the 

owners and operators of the source and all such units at the 

source, in accordance with Article 2 (9VAC5-140-2100 et 

seq.) and Article 9 (9VAC5-140-2800 et seq.) of this part, to 

represent and legally bind each owner and operator in matters 

pertaining to the CAIR NOX Ozone Season Trading Program. 

If the CAIR NOX Ozone Season source is also a CAIR NOX

source, then this natural person shall be the same person as 

the CAIR-designated representative under the CAIR NOX

Annual Trading Program. If the CAIR NOX Ozone Season 

source is also a CAIR SO2 source, then this natural person 

shall be the same person as the CAIR-designated 

representative under the CAIR SO2 Trading Program. If the 

CAIR NOX Ozone Season source is also subject to the Acid 

Rain Program, then this natural person shall be the same 

person as the designated representative under the Acid Rain 

Program. If the CAIR NOX Ozone Season source is also 

subject to the Hg Budget Trading Program, then this natural 

person shall be the same person as the Hg designated 

representative under the Hg Budget Trading Program. 

"CAIR NOX Annual Trading Program" means a multistate 

nitrogen oxides air pollution control and emission reduction 

program approved and administered by the administrator in 

accordance with Part II, subparts AA through II of 40 CFR 

Part 96, (9VAC5-140-1010 et seq.) of this chapter and 40 

CFR 51.123 (o) (1) or (2) or established by the administrator 

in accordance with subparts AA through II of 40 CFR Part 97 

and 40 CFR 51.123 (p) and 52.35, as a means of mitigating 

interstate transport of fine particulates and nitrogen oxides. 

"CAIR NOX Ozone Season allowance" means a limited 

authorization issued by a permitting authority or the 

administrator under Article 5 (9VAC5-140-2400 et seq.) of 

this part, provisions of an implementation plan that are 

approved under 40 CFR 51.123(aa)(1) or (2) and (bb)(1), 

(bb)(2), (dd), or (ee), or under subpart EEEE of 40 CFR Part 

97 or 40 CFR 97.388, to emit one ton of nitrogen oxides 

during a control period of the specified calendar year for 

which the authorization is allocated or of any calendar year 

thereafter under the CAIR NOX Ozone Season Trading 

Program or a limited authorization issued by a permitting 

authority for a control period during 2003 through 2008 under 
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the NOX Budget Trading Program under Part I (9VAC5-140-

10 et seq.) of this chapter or in accordance with 40 CFR 

51.121(p) to emit one ton of nitrogen oxides during a control 

period, provided that the provision in 40 CFR 51.121(b)(2) 

(ii) (E) shall not be used in applying this definition and the 

limited authorization shall not have been used to meet the 

allowance-holding requirement under the NOx Budget 

Trading Program. An authorization to emit nitrogen oxides 

that is not issued under Article 5 (9VAC5-140-2400 et seq.) 

of this part, provisions of an implementation plan approved 

under 40 CFR 51.123(aa)(1) or (2) and (bb) (1), (bb) (2), (dd), 

or (ee) or subpart EEEE of 40 CFR Part 97 or 40 CFR 97.388 

or under the NOX Budget Trading Program as described in the 

prior sentence shall not be a CAIR NOX Ozone Season 

allowance. No provision of the CAIR NOX Ozone Season 

Program, the CAIR permit application, the CAIR permit, or 

an exemption under 9VAC5-140-2050 and no provision of 

law shall be construed to limit the authority of the United 

States or the board to terminate or limit such authorization, 

which does not constitute a property right. 

"CAIR NOX Ozone Season allowance deduction" or "deduct 

CAIR NOX Ozone Season allowances" means the permanent 

withdrawal of CAIR NOX Ozone Season allowances by the 

administrator from a compliance account, e.g., in order to 

account for a specified number of tons of total nitrogen 

oxides emissions from all CAIR NOX Ozone Season units at a 

CAIR NOX Ozone Season source for a control period, 

determined in accordance with Article 8 (9VAC5-140-2700 et 

seq.) of this part, or to account for excess emissions. 

"CAIR NOX Ozone Season Allowance Tracking System" 

means the system by which the administrator records 

allocations, deductions, and transfers of CAIR NOX Ozone 

Season allowances under the CAIR NOX Ozone Season 

Trading Program. Such allowances will be allocated, held, 

deducted, or transferred only as whole allowances. 

"CAIR NOX Ozone Season Allowance Tracking System 

account" means an account in the CAIR NOX Ozone Season 

Allowance Tracking System established by the administrator 

for purposes of recording the allocation, holding, transferring, 

or deducting of CAIR NOX Ozone Season allowances. 

"CAIR NOX Ozone Season allowances held" or "hold CAIR 

NOX Ozone Season allowances" means the CAIR NOX Ozone 

Season allowances recorded by the administrator, or 

submitted to the administrator for recordation, in accordance 

with Article 6 (9VAC5-140-2500 et seq.), Article 7 (9VAC5-

140-2600 et seq.), and Article 9 (9VAC5-140-2800 et seq.) of 

this part, in a CAIR NOX Ozone Season Allowance Tracking 

System account. 

"CAIR NOX Ozone Season core trading budget" means the 

amount of tons of NOX emissions in the CAIR NOX Ozone 

Season trading budget for the control period minus the 

amount of tons of NOX emissions under subdivision 1 of the 

definition of new unit set-aside budget and the new energy 

efficiency/renewable energy unit set-aside budget. 

"CAIR NOX Ozone Season emissions limitation" means, for 

a CAIR NOX Ozone Season source, the tonnage equivalent, in 

NOX emissions in a control period, of the CAIR NOX Ozone 

Season allowances available for deduction for the source 

under 9VAC5-140-2540 A and B for the control period. 

"CAIR NOX Ozone Season source" means a source that 

includes one or more CAIR NOX Ozone Season units. 

"CAIR NOX Ozone Season trading budget" means the total 

number of NOX tons set forth in 9VAC5-140-2400 and 

apportioned to all CAIR NOX Ozone Season units and energy 

efficiency/renewable energy units in accordance with the 

CAIR NOX Ozone Trading Program, for use in a given 

control period. 

"CAIR NOX Ozone Season Trading Program" means a 

multistate nitrogen oxides air pollution control and emission 

reduction program approved and administered by the 

administrator in accordance with this part, subparts AAAA 

through IIII of 40 CFR Part 96, and 40 CFR 51.123 (aa)(1) or 

(2) and (bb)(1), (bb)(2), or (dd) or established by the 

administrator in accordance with subparts AAAA through IIII 

of 40 CFR Part 97 and 40 CFR 51.123(ee) and 52.35, as a 

means of mitigating interstate transport of ozone and nitrogen 

oxides. 

"CAIR NOX Ozone Season unit" means a unit that is subject 

to the CAIR NOX Ozone Season Trading Program under 

9VAC5-140-2040 and, except for purposes of 9VAC5-140-

2050 and Article 5 (9VAC5-140-2400 et seq.) of this part, a 

CAIR NOX Ozone Season opt-in unit under Article 9 

(9VAC5-140-2800 et seq.) of this part. 

"CAIR NOX source" means a source that is subject to the 

CAIR NOX Annual Trading Program. 

"CAIR permit" means the terms and conditions in a Title V 

operating permit or state operating permit, issued by the 

permitting authority under Article 3 (9VAC5-140-2200 et 

seq.) of this part, including any permit revisions, specifying 

the CAIR NOX Ozone Season Trading Program requirements 

applicable to a CAIR NOX Ozone Season source, to each 

CAIR NOX Ozone Season unit at the source, and to the 

owners and operators and the CAIR-designated representative 

of the source and each such unit. 

"CAIR SO2 source" means a source that is subject to the 

CAIR SO2 Trading Program. 

"CAIR SO2 Trading Program" means a multistate sulfur 

dioxide air pollution control and emission reduction program 

approved and administered by the administrator in accordance 

with Part IV (9VAC5-140-3010 et seq.) of this chapter, 

subparts AAA through IIII of 40 CFR Part 96, and 40 CFR 

51.124 (o)(1) or (2) or established by the administrator in 

accordance with subparts AAA through III of 40 CFR Part 97 
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and 40 CFR 51.124(r) and 52.36, as a means of mitigating 

interstate transport of fine particulates and sulfur dioxide. 

"Clean Air Act" or "CAA" means the Clean Air Act, 

42 USC § 7401 et seq. 

"Coal" means any solid fuel classified as anthracite, 

bituminous, subbituminous, or lignite. 

"Coal-derived fuel" means any fuel (whether in a solid, 

liquid, or gaseous state) produced by the mechanical, thermal, 

or chemical processing of coal. 

"Coal-fired" means: 

1. Except for purposes of Article 5 (9VAC5-140-2400 et 

seq.) of this part, combusting any amount of coal or coalderived fuel, alone or in combination with any amount of 

any other fuel, during any year; or 

2. For purposes of Article 5 (9VAC5-140-2400 et seq.) of 

this part, combusting any amount of coal or coal-derived 

fuel, alone or in combination with any amount of any other 

fuel, during a specified year. 

"Cogeneration unit" means a stationary, fossil-fuel-fired 

boiler or stationary, fossil-fuel-fired combustion turbine: 

1. Having equipment used to produce electricity and useful 

thermal energy for industrial, commercial, heating, or 

cooling purposes through the sequential use of energy; and 

2. Producing during the 12-month period starting on the 

date the unit first produces electricity and during any 

calendar year after the calendar year in which the unit first 

produces electricity: 

a. For a topping-cycle cogeneration unit, :

(1) Useful thermal energy not less than 5.0% of total 

energy output; and 

(2) Useful power that, when added to one-half of useful 

thermal energy produced, is not less then 42.5% of total 

energy input, if useful thermal energy produced is 15% 

or more of total energy output, or not less than 45% of 

total energy input, if useful thermal energy produced is 

less than 15% of total energy output. 

b. For a bottoming-cycle cogeneration unit, useful power 

not less than 45% of total energy input.; and

3. Provided that the total energy input under subdivisions 2 

a (2) and 2 b of this definition shall equal the unit’s total 

energy input from all fuel except biomass if the unit is a 

boiler.

"Combustion turbine" means: 

1. An enclosed device comprising a compressor, a 

combustor, and a turbine and in which the flue gas 

resulting from the combustion of fuel in the combustor 

passes through the turbine, rotating the turbine; and 

2. If the enclosed device under subdivision 1 of this 

definition is combined cycle, any associated duct burner, 

heat recovery steam generator, and steam turbine. 

"Commence commercial operation" means, with regard to a 

unit: 

1. To have begun to produce steam, gas, or other heated 

medium used to generate electricity for sale or use, 

including test generation, except as provided in 9VAC5-

140-2050 and subdivision 8 of 9VAC5-140-2840. 

a. For a unit that is a CAIR NOX Ozone Season unit 

under 9VAC50-140-2040 on the later of November 15, 

1990, or the date the unit commences commercial 

operation as defined in subdivision 1 of this definition 

and that subsequently undergoes a physical change (other 

than replacement of the unit by a unit at the same 

source), such date shall remain the date of 

commencement of commercial operation of the unit 

which shall continue to be treated as the same unit. 

b. For a unit that is a CAIR NOX Ozone Season unit 

under 9VAC5-140-2040 the later of November 15 1990, 

or on the date the unit commences commercial operation 

as defined in subdivision 1 of this definition and that is 

subsequently replaced by a unit at the same source (e.g., 

repowered), such date shall remain the replaced unit's 

date of commencement of commercial operation, and the 

replacement unit shall be treated as a separate unit with a 

separate date for commencement of commercial 

operation as defined in subdivision 1 or 2 of this 

definition as appropriate. 

2. Notwithstanding subdivision 1 of this definition and 

except as provided in 9VAC5-140-2050, for a unit that is 

not a CAIR NOX Ozone Season unit under 9VAC5-140-

2040 on the later of November 15, 1990, or the date the 

unit commences commercial operation as defined in 

subdivision 1 of this definition, the unit's date for 

commencement of commercial operation shall be the date 

on which the unit becomes a CAIR NOX Ozone Season 

unit under 9VAC5-140-2040. 

a. For a unit with a date for commencement of 

commercial operation as defined in subdivision 2 of this 

definition and that subsequently undergoes a physical 

change (other than replacement of the unit by a unit at 

the same source), such date shall remain the date of 

commencement of commercial operation of the unit, 

which shall continue to be treated as the same unit. 

b. For a unit with a date for commencement of 

commercial operation as defined in subdivision 2 of this 

definition and that is subsequently replaced by a unit at 

the same source (e.g., repowered), such date shall remain 

the replaced unit's date of commencement of commercial 

operation, and the replacement unit shall be treated as a 

separate unit with a separate date for commencement of 
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commercial operation as defined in subdivision 1 or 2 of 

this definition as appropriate. 

"Commence commercial operation" means, with regard to 

an existing nonelectric generating unit that serves a generator, 

to have begun to produce steam, gas, or other heated medium 

used to generate electricity for sale or use, including test 

generation. For a unit that is a CAIR NOX Ozone Season unit 

under 9VAC5-140-2040 C 2 on the date the unit commences 

commercial operation, such date shall remain the unit's date 

of commencement of commercial operation even if the unit is 

subsequently modified, reconstructed, or repowered. Except 

as provided in Article 9 (9VAC5-140-2800 et seq.) of this 

part, for a unit that is not a CAIR NOX Ozone Season unit 

under 9VAC5-140-2040 C 2 on the date the unit commences 

commercial operation, the date the unit becomes a CAIR NOX

Ozone Season unit under 9VAC5-140-2040 C 2 shall be the 

unit's date of commencement of commercial operation. 

"Commence operation" means: 

1. To have begun any mechanical, chemical, or electronic 

process, including, with regard to a unit, start-up of a unit's 

combustion chamber, except as provided in subdivision 8 

of 9VAC5-140-2840. 

2. For a unit that undergoes a physical change (other than 

replacement of the unit by a unit at the same source) after 

the date the unit commences operation as defined in 

subdivision 1 of this definition, such date shall remain the 

date of commencement of operation of the unit, which 

shall continue to be treated as the same unit. 

3. For a unit that is replaced by a unit at the same source 

(e.g., repowered) after the date the unit commences 

operation as defined in subdivision 1 of this definition, 

such date shall remain the replaced unit's date of 

commencement of operation, and the replacement unit 

shall be treated as a separate unit with a separate date for 

commencement of operation as defined in subdivisions 1, 

2, or 3 of this definition as appropriate, except as provided 

in subdivision 8 of 9VAC5-140-2840. 

"Commence operation" means, with regard to an existing 

nonelectric generating unit, to have begun any mechanical, 

chemical, or electronic process, including, with regard to a 

unit, start-up of a unit's combustion chamber. For a unit that 

is a CAIR NOX Ozone Season unit under 9VAC5-140-2040 C 

2 on the date of commencement of operation, such date shall 

remain the unit's date of commencement of operation even if 

the unit is subsequently modified, reconstructed, or 

repowered. Except as provided in Article 9 (9VAC5-140-

2800 et seq.) of this part, for a unit that is not a CAIR NOX

Ozone Season unit under 9VAC5-140-2040 C 2 on the date 

of commencement of operation, the date the unit becomes a 

CAIR NOX Ozone Season unit under 9VAC5-140-2040 C 2 

shall be the unit's date of commencement of operation. 

"Common stack" means a single flue through which 

emissions from 2 or more units are exhausted. 

"Compliance account" means a CAIR NOX Ozone Season 

Allowance Tracking System account, established by the 

administrator for a CAIR NOX Ozone Season source under 

Article 6 (9VAC5-140-2500 et seq.) or Article 9 (9VAC5-

140-2800 et seq.) of this part, in which any CAIR NOX Ozone 

Season allowance allocations for the CAIR NOX Ozone 

Season units at the source are initially recorded and in which 

are held any CAIR NOX Ozone Season allowances available 

for use for a control period in order to meet the source's CAIR 

NOX Ozone Season emissions limitation in accordance with 

9VAC5-140-2540. 

"Continuous emission monitoring system" or "CEMS" 

means the equipment required under Article 8 (9VAC5-140-

2700 et seq.) of this part to sample, analyze, measure, and 

provide, by means of readings recorded at least once every 15 

minutes (using an automated data acquisition and handling 

system (DAHS)), a permanent record of nitrogen oxides 

emissions, stack gas volumetric flow rate, stack gas moisture 

content, and oxygen or carbon dioxide concentration (as 

applicable), in a manner consistent with 40 CFR Part 75. The 

following systems are the principal types of continuous 

emission monitoring systems required under Article 8 

(9VAC5-140-2700 et seq.) of this part: 

1. A flow monitoring system, consisting of a stack flow 

rate monitor and an automated data acquisition and 

handling system and providing a permanent, continuous 

record of stack gas volumetric flow rate, in standard cubic 

feet per hour (scfh); 

2. A nitrogen oxides concentration monitoring system, 

consisting of a NOX pollutant concentration monitor and an 

automated data acquisition and handling system and 

providing a permanent, continuous record of NOX

emissions, in parts per million (ppm); 

3. A nitrogen oxides emission rate (or NOX-diluent) 

monitoring system, consisting of a NOX pollutant 

concentration monitor, a diluent gas (CO2 or O2) monitor, 

and an automated data acquisition and handling system and 

providing a permanent, continuous record of NOX

concentration, in parts per million (ppm), diluent gas 

concentration, in percent CO2 or O2, and NOX emission 

rate, in pounds per million British thermal units 

(lb/mmBtu); 

4. A moisture monitoring system, as defined in 40 CFR 

75.11(b)(2) and providing a permanent, continuous record 

of the stack gas moisture content, in percent H2O; 

5. A carbon dioxide monitoring system, consisting of a 

CO2 pollutant concentration monitor (or an oxygen 

monitor plus suitable mathematical equations from which 

the CO2 concentration is derived) and an automated data 

acquisition and handling system and providing a 
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permanent, continuous record of CO2 emissions, in percent 

CO2; and 

6. An oxygen monitoring system, consisting of an O2

concentration monitor and an automated data acquisition 

and handling system and providing a permanent, 

continuous record of O2, in percent O2. 

"Control period" or "ozone season" means the period 

beginning May 1 of a calendar year, except as provided in 

9VAC5-140-2060 C 2, and ending on September 30 of the 

same year, inclusive. 

"EERE proponent" means any person who owns, leases, 

operates or controls an energy efficiency unit or a renewable 

energy unit, or an EERE representative. 

"EERE representative" means a party that aggregates one or 

more energy efficiency units or renewable energy units. An 

EERE representative may include, without limitation, a 

common owner of projects, an energy service company, an 

emission trading broker or a state or municipal entity. 

"Electricity for sale under firm contract to the grid" means 

electricity for sale where the capacity involved is intended to 

be available at all times during the period covered by a 

guaranteed commitment to deliver, even under adverse 

conditions. 

"Emissions" means air pollutants exhausted from a unit or 

source into the atmosphere, as measured, recorded, and 

reported to the administrator by the CAIR-designated 

representative and as determined by the administrator in 

accordance with Article 8 (9VAC5-140-2700 et seq.) of this 

part. 

"Energy efficiency unit" means an end-use energy efficiency 

project implemented after January 1, 2006, that reduces 

electricity consumption at a building or facility located in 

Virginia according to an energy efficiency verification 

protocol acceptable to the permitting authority. Projects 

resulting in energy savings at a CAIR NOX Ozone Season 

unit are not encompassed within this definition. 

"Excess emissions" means any ton of nitrogen oxides 

emitted by the CAIR NOX Ozone Season units at a CAIR 

NOX Ozone Season source during a control period that 

exceeds the CAIR NOX Ozone Season emissions limitation 

for the source. 

"Existing nonelectric generating unit" means a source of 

NOX emissions that is a CAIR NOX Ozone Season unit under 

9VAC5-140-2040 C 1 and listed in 9VAC5-140-2430. 

"Fossil fuel" means natural gas, petroleum, coal, or any form 

of solid, liquid, or gaseous fuel derived from such material. 

"Fossil-fuel-fired" means, with regard to a unit, combusting 

any amount of fossil fuel in any calendar year. 

"Fossil fuel-fired" means, with regard to an existing 

nonelectric generating unit: 

1. For units that commenced operation before January 1, 

1996, the combustion of fossil fuel, alone or in 

combination with any other fuel, where fossil fuel actually 

combusted comprises more than 50% of the annual heat 

input on a Btu basis during 1995 or, if a unit had no heat 

input in 1995, during the last year of operation of the unit 

prior to 1995; 

2. For units that commenced operation on or after January 

1, 1996, and before January 1, 1997, the combustion of 

fossil fuel, alone or in combination with any other fuel, 

where fossil fuel actually combusted comprises more than 

50% of the annual heat input on a Btu basis during 1996; 

or 

3. For units that commence operation on or after January 1, 

1997: 

a. The combustion of fossil fuel, alone or in combination 

with any other fuel, where fossil fuel actually combusted 

comprises more than 50% of the annual heat input on a 

Btu basis during any year; or 

b. The combustion of fossil fuel, alone or in combination 

with any other fuel, where fossil fuel is projected to 

comprise more than 50% of the annual heat input on a 

Btu basis during any year, provided that the unit shall be 

"fossil fuel-fired" as of the date, during such year, on 

which the unit begins combusting fossil fuel. 

"Fuel oil" means any petroleum-based fuel (including diesel 

fuel or petroleum derivatives such as oil tar) and any recycled 

or blended petroleum products or petroleum by-products used 

as a fuel whether in a liquid, solid, or gaseous state. 

"General account" means a NOX Ozone Season Allowance 

Tracking System account, established under Article 6 

(9VAC5-140-2500 et seq.) of this part, that is not a 

compliance account. 

"Generator" means a device that produces electricity. 

"Gross electrical output" means, with regard to a 

cogeneration unit, electricity made available for use, 

including any such electricity used in the power production 

process (which process includes, but is not limited to, any onsite processing or treatment of fuel combusted at the unit and 

any on-site emission controls). 

"Heat input" means, with regard to a specified period of 

time, the product (in mmBtu/time) of the gross calorific value 

of the fuel (in Btu/lb) divided by 1,000,000 Btu/mmBtu and 

multiplied by the fuel feed rate into a combustion device (in 

lb of fuel/time), as measured, recorded, and reported to the 

administrator by the CAIR-designated representative and 

determined by the administrator in accordance with Article 8 

(9VAC5-140-2700 et seq.) of this part and excluding the heat 
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derived from preheated combustion air, recirculated flue 

gases, or exhaust from other sources. 

"Heat input rate" means the amount of heat input (in 

mmBtu) divided by unit operating time (in hr) or, with regard 

to a specific fuel, the amount of heat input attributed to the 

fuel (in mmBtu) divided by the unit operating time (in hr) 

during which the unit combusts the fuel. 

"Hg Budget Trading Program" means a multistate Hg air 

pollution control and emission reduction program approved 

and administered by the administrator in accordance with Part 

VI (9VAC5-140-5010 et seq.) of this chapter and 40 CFR 

60.24(h)(6), or established by the administrator under § 111 

of the Clean Air Act, as a means of reducing national Hg 

emissions. 

"Implementation plan" means the portion or portions of the 

state implementation plan, or the most recent revision thereof, 

which has been approved in subpart VV of 40 CFR Part 52 by 

the administrator under § 110 of the CAA, or promulgated 

under § 110(c) of the CAA, or promulgated or approved 

pursuant to regulations promulgated under § 301(d) of the 

CAA and which implements the relevant requirements of the 

CAA. 

"Life of the unit, firm power contractual arrangement" 

means a unit participation power sales agreement under 

which a utility or industrial customer reserves, or is entitled to 

receive, a specified amount or percentage of nameplate 

capacity and associated energy generated by any specified 

unit and pays its proportional amount of such unit's total 

costs, pursuant to a contract: 

1. For the life of the unit; 

2. For a cumulative term of no less than 30 years, including 

contracts that permit an election for early termination; or 

3. For a period no less than 25 years or 70.0% 70% of the 

economic useful life of the unit determined as of the time 

the unit is built, with option rights to purchase or release 

some portion of the nameplate capacity and associated 

energy generated by the unit at the end of the period. 

"Maximum design heat input" means the maximum amount 

of fuel per hour (in Btu/hr) that a unit is capable of 

combusting on a steady state basis as of the initial installation 

of the unit as specified by the manufacturer of the unit. 

"Monitoring system" means any monitoring system that 

meets the requirements of Article 8 (9VAC5-140-2700 et 

seq.) of this part, including a continuous emissions 

monitoring system, an alternative monitoring system, or an 

excepted monitoring system under 40 CFR Part 75. 

"Most stringent state or federal NOX emissions limitation" 

means the lowest NOX emissions limitation (in lb/mmBtu) 

that is applicable to the unit under the Virginia Air Pollution 

Control Law or federal law, regardless of the averaging 

period to which the emissions limitation applies. In cases 

where a unit is subject to a permit which provides for the use 

of multiple fuels, the primary fuel shall be used as the basis to 

determine the most stringent state or federal NOX emissions 

limitation. The primary fuel shall be the fuel designated in the 

permit as such or resulting in the lowest emissions rate.

"Nameplate capacity" means, starting from the initial 

installation of a generator, the maximum electrical generating 

output (in MWe) that the generator is capable of producing on 

a steady state basis and during continuous operation (when 

not restricted by seasonal or other deratings) as of such 

installation as specified by the manufacturer of the generator 

or, starting from the completion of any subsequent physical 

change in the generator resulting in an increase in the 

maximum electrical generating output (in MWe) that the 

generator is capable of producing on a steady state basis and 

during continuous operation (when not restricted by seasonal 

or other deratings), such increased maximum amount as of 

such installation as specified by the person conducting the 

physical change. 

"New energy efficiency/renewable energy unit set-aside 

budget" means the amount of tons of NOX emissions in the 

CAIR NOX Ozone Season trading budget for each control 

period in 2009 and thereafter multiplied by 1.0%, rounded to 

the nearest whole allowance as appropriate. 

"New nonelectric generating unit" means a source of NOX

emissions that is a CAIR NOX Ozone Season unit under 

9VAC5-140-2040 C 2. 

"New unit set-aside budget" means the sum of: 

1. The amount of tons of NOX emissions in the CAIR NOX 

Ozone Season trading budget for the control period to 

which the new unit set-aside applies multiplied by the new 

unit set-aside percentage, rounded to the nearest whole 

allowance as appropriate. 

2. 736 tons of NOX emissions for each control period. 

"New unit set-aside percentage" means 4.0% for each 

control period in 2009 through 2013 or 1.0 % for each control 

period in 2014 and thereafter. 

"Nonelectric generating unit" means a source of NOX

emissions that is a CAIR NOX Ozone Season unit under 

9VAC5-140-2040 C but is not covered under 9VAC5-140-

2040 A. 

"Nonattainment condition" means a condition where any 

area is shown by air quality monitoring data or which is 

shown by an air quality impact analysis (using 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, regardless of whether such 

demonstration is based on current or projected emissions 

data. 
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"Oil-fired" means, for purposes of Article 5 (9VAC5-140-

2400 et seq.) of this part, combusting fuel oil for more than 

15.0% 15% of the annual heat input in a specified year and 

not qualifying as coal-fired. 

"Operator" means any person who operates, controls, or 

supervises a CAIR NOX Ozone Season unit or a CAIR NOX

Ozone Season source and shall include, but not be limited to, 

any holding company, utility system, or plant manager of 

such a unit or source. 

"Owner" means any of the following persons: 

1. With regard to a CAIR NOX Ozone Season source or a 

CAIR NOX Ozone Season unit at a source, respectively: 

a. Any holder of any portion of the legal or equitable title 

in a CAIR NOX Ozone Season unit at the source or the 

CAIR NOX Ozone Season unit; 

b. Any holder of a leasehold interest in a CAIR NOX

Ozone Season unit at the source or the CAIR NOX Ozone 

Season unit; or 

c. Any purchaser of power from a CAIR NOX Ozone 

Season unit at the source or the CAIR NOX Ozone 

Season unit under a life of the unit, firm power 

contractual arrangement; provided that, unless expressly 

provided for in a leasehold agreement, owner shall not 

include a passive lessor, or a person who has an equitable 

interest through such lessor, whose rental payments are 

not based (either directly or indirectly) on the revenues or 

income from such CAIR NOX Ozone Season unit; or 

2. With regard to any general account, any person who has 

an ownership interest with respect to the CAIR NOX Ozone 

Season allowances held in the general account and who is 

subject to the binding agreement for the CAIR-authorized 

account representative to represent the person's ownership 

interest with respect to CAIR NOX Ozone Season 

allowances. 

"Permitting authority" means the state air pollution control 

agency, local agency, other state agency, or other agency 

authorized by the administrator to issue or revise permits to 

meet the requirements of the CAIR NOX Ozone Season 

Trading Program in accordance with Article 3 (9VAC5-140-

2200 et seq.) of this part or, if no such agency has been so 

authorized, the administrator. For the Commonwealth of 

Virginia, the permitting authority shall be the State Air 

Pollution Control Board. The board will issue or revise 

permits to meet the requirements of the CAIR NOX Ozone 

Season Trading Program in accordance with Article 3 

(9VAC5-140-2200 et seq.) of this part.

"Potential electrical output capacity" means 33.0% 33% of a 

unit's maximum design heat input, divided by 3,413 

Btu/kWh, divided by 1,000 kWh/MWh, and multiplied by 

8,760 hr/yr. 

"Receive or receipt of" means, when referring to the 

permitting authority or the administrator, to come into 

possession of a document, information, or correspondence 

(whether sent in hard copy or by authorized electronic 

transmission), as indicated in an official log, or by a notation 

made on the document, information, or correspondence, by 

the permitting authority or the administrator in the regular 

course of business. 

"Recordation," "record," or "recorded" means, with regard to 

CAIR NOX Ozone Season allowances, the movement of 

CAIR NOX Ozone Season allowances by the administrator 

into or between CAIR NOX Ozone Season Allowance 

Tracking System accounts, for purposes of allocation, 

transfer, or deduction. 

"Reference method" means any direct test method of 

sampling and analyzing for an air pollutant as specified in 40 

CFR 75.22. 

"Renewable energy unit" means an electric generator that 

began commercial operation after January 1, 2006, and is 

powered by (i) wind, solar, ocean thermal, wave, tidal, 

geothermal, or biomass energy, or (ii) fuel cells powered by 

hydrogen generated by a renewable energy source. 

Renewable energy does not include energy derived from: (i) 

material that has been treated or painted or derived from 

demolition or construction material; (ii) municipal, industrial 

or other multiple source solid waste; and (iii) co-firing of 

biomass with fossil fuels or solid waste. 

"Replacement," "replace," or "replaced" means, with regard 

to a unit, the demolishing of a unit, or the permanent 

shutdown and permanent disabling of a unit, and the 

construction of another unit (the replacement unit) to be used 

instead of the demolished or shutdown unit (the replaced 

unit). 

"Repowered" means, with regard to a unit, replacement of a 

coal-fired boiler with one of the following coal-fired 

technologies at the same source as the coal-fired boiler: 

1. Atmospheric or pressurized fluidized bed combustion; 

2. Integrated gasification combined cycle; 

3. Magnetohydrodynamics; 

4. Direct and indirect coal-fired turbines; 

5. Integrated gasification fuel cells; or 

6. As determined by the administrator in consultation with 

the Secretary of Energy, a derivative of one or more of the 

technologies under subdivisions 1 through 5 of this 

definition and any other coal-fired technology capable of 

controlling multiple combustion emissions simultaneously 

with improved boiler or generation efficiency and with 

significantly greater waste reduction relative to the 

performance of technology in widespread commercial use 

as of January 1, 2005. 
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"Sequential use of energy" means: 

1. For a topping-cycle cogeneration unit, the use of reject 

heat from electricity production in a useful thermal energy 

application or process; or 

2. For a bottoming-cycle cogeneration unit, the use of 

reject heat from useful thermal energy application or 

process in electricity production. 

"Serial number" means, for a CAIR NOX Ozone Season 

allowance, the unique identification number assigned to each 

CAIR NOX Ozone Season allowance by the administrator. 

"Solid waste incineration unit" means a stationary, fossilfuel-fired boiler or stationary, fossil-fuel-fired combustion 

turbine that is a "solid waste incineration unit" as defined in 

§ 129(g)(1) of the Clean Air Act. 

"Source" means all buildings, structures, or installations 

located in one or more contiguous or adjacent properties 

under common control of the same person or persons. For 

purposes of § 502(c) of the Clean Air Act, a "source," 

including a "source" with multiple units, shall be considered a 

single "facility." 

"State" means the Commonwealth of Virginia. The term 

"state" shall have its conventional meaning where such 

meaning is clear from the context. 

"State operating permit" means a permit issued under Article 

5 (9VAC5-80-800 et seq.) of Part II of 9VAC5 Chapter 80

9VAC5-80 (Permits for Stationary Sources). 

"State operating permit regulations" means the regulations 

codified in Article 5 (9VAC5-80-800 et seq.) of Part II of 

9VAC5 Chapter 80 9VAC5-80 (Permits for Stationary 

Sources). 

"Submit or serve" means to send or transmit a document, 

information, or correspondence to the person specified in 

accordance with the applicable regulation: 

1. In person; 

2. By United States Postal Service; or 

3. By other means of dispatch or transmission and delivery. 

Compliance with any "submission" or "service" deadline 

shall be determined by the date of dispatch, transmission, 

or mailing and not the date of receipt. 

"Title V operating permit" means a permit issued under 

Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 

se seq.) of Part II of 9VAC5 Chapter 80 9VAC5-80 (Permits 

for Stationary Sources). 

"Title V operating permit regulations" means the regulations 

codified in Article 1 (9VAC5-80-50 et seq.), Article 2 

(9VAC5-80-310 et seq.), Article 3 (9VAC5-80-360 et seq.), 

and Article 4 (9VAC5-80-710 et seq.) of Part II of 9VAC5 

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

"Ton" means 2,000 pounds. For the purpose of determining 

compliance with the CAIR NOX Ozone Season emissions 

limitation, total tons of nitrogen oxides emissions for a 

control period shall be calculated as the sum of all recorded 

hourly emissions (or the mass equivalent of the recorded 

hourly emission rates) in accordance with Article 8 (9VAC5-

140-2700 et seq.) of this part, but with any remaining fraction 

of a ton equal to or greater than 0.50 tons deemed to equal 

one ton and any remaining fraction of a ton less than 0.50 

tons deemed to equal zero tons. 

"Topping-cycle cogeneration unit" means a cogeneration 

unit in which the energy input to the unit is first used to 

produce useful power, including electricity, and at least some 

of the reject heat from the electricity production is then used 

to provide useful thermal energy. 

"Total energy input" means, with regard to a cogeneration 

unit, total energy of all forms supplied to the cogeneration 

unit, excluding energy produced by the cogeneration unit 

itself. Each form of energy supplied shall be measured by the 

lower heating value of that form of energy calculated as 

follows:

LHV = HHV – 10.55(W + 9H)

where:

LHV = lower heating value of fuel in Btu/lb.

HHV = higher heating value of fuel in Btu/lb.

W = Weight percent of moisture in fuel.

H = Weight percent of hydrogen in fuel.

"Total energy output" means, with regard to a cogeneration 

unit, the sum of useful power and useful thermal energy 

produced by the cogeneration unit. 

"Unit" means a stationary, fossil-fuel-fired boiler or 

combustion turbine or other stationary, fossil-fuel-fired 

combustion device. 

"Unit operating day" means a calendar day in which a unit 

combusts any fuel. 

"Unit operating hour" or "hour of unit operation" means an 

hour in which a unit combusts any fuel. 

"Useful power" means, with regard to a cogeneration unit, 

electricity or mechanical energy made available for use, 

excluding any such energy used in the power production 

process (which process includes, but is not limited to, any onsite processing or treatment of fuel combusted at the unit and 

any on-site emission controls). 

"Useful thermal energy" means, with regard to a 

cogeneration unit, thermal energy that is: 

1. Made available to an industrial or commercial process 

(not a power production process), excluding any heat 

contained in condensate return or makeup water; 
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2. Used in a heating application (e.g., space heating or 

domestic hot water heating); or 

3. Used in a space cooling application (i.e., thermal energy 

used by an absorption chiller). 

"Utility power distribution system" means the portion of an 

electricity grid owned or operated by a utility and dedicated 

to delivering electricity to customers. 

Part IV 

SO2 Annual Trading Program 

Article 1 

CAIR SO2 Trading Program General Provisions 

9VAC5-140-3010. Purpose and authority.

A. This part establishes general provisions and the 

designated representative, permitting, allowance, monitoring, 

and opt-in provisions for the State Clean Air Interstate Rule 

(CAIR) SO2 Trading Program, under § 110 of the Clean Air 

Act and 40 CFR 51.124, as a means of mitigating interstate 

transport of fine particulates and sulfur dioxide. 

B. The purpose of this part is not to create the CAIR SO2

Trading Program only for CAIR SO2 units and CAIR SO2

sources geographically located within the borders of the 

Commonwealth of Virginia. Upon approval by EPA in 

accordance with 40 CFR 51.124 (o)(1) or (2), qualifying 

CAIR SO2 units and CAIR SO2 sources within the 

Commonwealth will become full participants in the EPAadministered regional CAIR SO2 Annual Trading Program, 

which will include CAIR SO2 units and CAIR SO2 sources 

permitted by authorities in all other states that are 

participating in the regional CAIR SO2 Trading Program.

 C. This part should not be interpreted to limit the CAIR SO2

Trading Program to Virginia CAIR SO2 units and CAIR SO2

sources, which would be contrary to the intention that CAIR 

SO2 units and CAIR SO2 sources covered by CAIR programs 

of other states approved in accordance with 40 CFR 51.124 

(o)(1) or (2) or by the CAIR Federal Implementation Plan 

(subparts AAA through III of 40 CFR Part 97) may trade 

allowances with CAIR SO2 units and CAIR SO2 sources in 

the Commonwealth. While the CAIR SO2 Trading Program 

must include CAIR SO2 units and CAIR SO2 sources and 

permitting authorities beyond the borders of the 

Commonwealth, the permitting authority for Virginia (the 

State Air Pollution Control Board) has no authority to ensure 

compliance with this part by any permitting authority, person 

or entity outside the Commonwealth.

D. The board has the authority under the Code of Virginia to 

regulate the allocations of allowances, issuance of the budget 

permits, the administration of the opt-in provisions and other 

duties assigned to the permitting authority only for CAIR SO2

units and CAIR SO2 sources in Virginia. The board 

authorizes the administrator to assist the board in 

implementing the CAIR SO2 Trading Program by carrying 

out the functions set forth for the administrator in this part. 

9VAC5-140-3020. Definitions. 

A. As used in this part, all words or terms not defined here 

shall have the meaning given them in 9VAC5 Chapter 10 

(9VAC5-10), 9VAC5-10 (General Definitions) unless 

otherwise required by context. 

B. For the purpose of this part and any related use, the words 

or terms shall have the meaning given them in this 

subsection. 

"Account number" means the identification number given by 

the administrator to each CAIR SO2 Allowance Tracking 

System account. 

"Acid rain emissions limitation" means a limitation on 

emissions of sulfur dioxide or nitrogen oxides under the Acid 

Rain Program. 

"Acid Rain Program" means a multistate sulfur dioxide and 

nitrogen oxides air pollution control and emission reduction 

program established by the administrator under Title IV of the 

CAA and 40 CFR Parts 72 through 78. 

"Administrator" means the administrator of the United 

States Environmental Protection Agency or the 

administrator's duly authorized representative. 

"Allocate" or "allocation" means, with regard to CAIR SO2

allowances issued under the Acid Rain Program, the 

determination by the administrator of the amount of such 

CAIR SO2 allowances to be initially credited to a CAIR SO2

unit or other entity and, with regard to CAIR SO2 allowances 

issued under provisions of a state implementation plan that 

are approved under 40 CFR 51.124 (o) (1) or (2) or (r) or 

9VAC5-140-3880, the determination by a permitting 

authority of the amount of such CAIR SO2 allowances to be 

initially credited to a CAIR SO2 unit or other entity. 

"Allowance transfer deadline" means, for a control period, 

midnight of March 1, (if it is a business day), or midnight of 

the first business day thereafter (if March 1 is not a business 

day) immediately following the control period and is the 

deadline by which a CAIR SO2 allowance transfer must be 

submitted for recordation in a CAIR SO2 source's compliance 

account in order to be used to meet the source's CAIR SO2

emissions limitation for such control period in accordance 

with 9VAC5-140-3540. 

"Alternate CAIR-designated representative" means, for a 

CAIR SO2 source and each CAIR SO2 unit at the source, the 

natural person who is authorized by the owners and operators 

of the source and all such units at the source, in accordance 

with Articles 2 (9VAC5-140-3100 et seq.) and 9 (9VAC5-

140-3800 et seq.) of this part, to act on behalf of the CAIRdesignated representative in matters pertaining to the CAIR 

SO2 Trading Program. If the CAIR SO2 source is also a CAIR 
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NOX source, then this natural person shall be the same person 

as the alternate CAIR-designated representative under the 

CAIR NOX Annual Trading Program. If the CAIR SO2 source 

is also a CAIR NOX Ozone Season source, then this natural 

person shall be the same person as the alternate CAIRdesignated representative under the CAIR NOX Ozone Season 

Trading Program. If the CAIR SO2 source is also subject to 

the Acid Rain Program, then this natural person shall be the 

same person as the alternate designated representative under 

the Acid Rain Program. If the CAIR SO2 source is also 

subject to the Hg Budget Trading Program, then this natural 

person shall be the same person as the alternate Hg 

designated representative under the Hg Budget Trading 

Program. 

"Automated data acquisition and handling system" or 

"DAHS" means that component of the continuous emission 

monitoring system, or other emissions monitoring system 

approved for use under Article 8 (9VAC5-140-3700 et seq.) 

of this part, designed to interpret and convert individual 

output signals from pollutant concentration monitors, flow 

monitors, diluent gas monitors, and other component parts of 

the monitoring system to produce a continuous record of the 

measured parameters in the measurement units required by 

Article 8 (9VAC5-140-3700 et seq.) of this part. 

“Biomass” means:

1. Any organic material grown for the purpose of being 

converted to energy;

2. Any organic byproduct of agriculture that can be 

converted into energy; or

3. Any material that can be converted into energy and is 

nonmerchantable for other purposes, that is segregated 

from other nonmerchantable material, and that is:

a. A forest-related organic resource, including mill 

residues, precommercial thinnings, slash, brush, or 

byproduct from conversion of trees to merchantable 

material; or

b. A wood material, including pallets, crates, dunnage, 

manufacturing and construction materials (other than 

pressure-treated, chemically-treated, or painted wood 

products), and landscape or right-of-way tree trimmings.

"Boiler" means an enclosed fossil- or other-fuel-fired 

combustion device used to produce heat and to transfer heat 

to recirculating water, steam, or other medium. 

"Bottoming-cycle cogeneration unit" means a cogeneration 

unit in which the energy input to the unit is first used to 

produce useful thermal energy and at least some of the reject 

heat from the useful thermal energy application or process is 

then used for electricity production. 

"CAIR-authorized account representative" means, with 

regard to a general account, a responsible natural person who 

is authorized, in accordance with Articles 2 (9VAC5-140-

3100 et seq.), 6 (9VAC5-140-3500 et seq.) and 9 (9VAC5-

140-3800 et seq.) of this part, to transfer and otherwise 

dispose of CAIR SO2 allowances held in the general account 

and, with regard to a compliance account, the CAIRdesignated representative of the source. 

"CAIR-designated representative" means, for a CAIR SO2

source and each CAIR SO2 unit at the source, the natural 

person who is authorized by the owners and operators of the 

source and all such units at the source, in accordance with 

Articles 2 (9VAC5-140-3100 et seq.), 6 (9VAC5-140-3500 et 

seq.) and 9 (9VAC5-140-3800 et seq.) of this part, to 

represent and legally bind each owner and operator in matters 

pertaining to the CAIR SO2 Trading Program. If the CAIR 

SO2 source is also a CAIR NOX source, then this natural 

person shall be the same person as the CAIR-designated 

representative under the CAIR NOX Annual Trading 

Program. If the CAIR SO2 source is also a CAIR NOX Ozone 

Season source, then this natural person shall be the same 

person as the CAIR-designated representative under the 

CAIR NOX Ozone Season Trading Program. If the CAIR SO2

source is also subject to the Acid Rain Program, then this 

natural person shall be the same person as the designated 

representative under the Acid Rain Program. If the CAIR SO2

source is also subject to the Hg Budget Trading Program, 

then this natural person shall be the same person as the 

alternate Hg designated representative under the Hg Budget 

Trading Program. 

"CAIR NOX Annual Trading Program" means a multistate 

nitrogen oxides air pollution control and emission reduction 

program approved and administered by the administrator in 

accordance with Part II (9VAC5-140-1010 et seq.) of this 

chapter, subparts AA through II of 40 CFR Part 96, and 40 

CFR 51.123 (o)(1) or (2) or established by the administrator 

in accordance with subparts AA through II of 40 CFR Part 97 

and 40 CFR 51.123(p) and 52.35, as a means of mitigating 

interstate transport of fine particulates and nitrogen oxides. 

"CAIR NOX Ozone Season source" means a source that is 

subject to the CAIR NOX Ozone Season Trading Program. 

"CAIR NOX Ozone Season Trading Program" means a 

multistate nitrogen oxides air pollution control and emission 

reduction program approved and administered by the 

administrator in accordance with Part III (9VAC5-140-2010 

et seq.) of this chapter, subparts AAAA through IIII of 40 

CFR Part 96, and 40 CFR 51.123 (aa)(1) or (2) and (bb)(1), 

(bb)(2), or (dd) or established by the administrator in 

accordance with subparts AAAA through IIII of 40 CFR Part 

97 and 40 CFR 51.123(ee) and 52.35, as a means of 

mitigating interstate transport of ozone and nitrogen oxides. 

"CAIR NOX source" means a source that is subject to the 

CAIR NOX Annual Trading Program. 
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"CAIR permit" means the terms and conditions in a Title V 

operating permit or state operating permit, issued by the 

permitting authority under Article 3 (9VAC5-140-3200 et 

seq.) of this part, including any permit revisions, specifying 

the CAIR SO2 Trading Program requirements applicable to a 

CAIR SO2 source, to each CAIR SO2 unit at the source, and 

to the owners and operators and the CAIR-designated 

representative of the source and each such unit. 

"CAIR SO2 allowance" means a limited authorization issued 

by the administrator under the Acid Rain Program, or by a 

permitting authority under 9VAC5-140-3880, provisions of 

an implementation plan that are approved under 40 CFR 

51.124(o)(1) or (2) or (r), or 40 CFR 97.288, to emit sulfur 

dioxide during the control period of the specified calendar 

year for which the authorization is allocated or of any 

calendar year thereafter under the CAIR SO2 Trading 

Program as specified in subdivisions 1 through 3 of this 

definition. No provision of the CAIR SO2 Annual Trading 

Program, the CAIR permit application, the CAIR permit, or 

an exemption under 9VAC5-140-3040 B or 9VAC5-140-

3050 and no provision of law shall be construed to limit the 

authority of the United States or the board to terminate or 

limit such authorization, which does not constitute a property 

right. 

1. For one CAIR SO2 allowance allocated for a control 

period in a year before 2010, one ton of sulfur dioxide, 

except as provided in 9VAC5-140-3540 B; 

2. For one CAIR SO2 allowance allocated for a control 

period in 2010 through 2014, 0.50 ton of sulfur dioxide, 

except as provided in 9VAC5-140-3540 B; and 

3. For one CAIR SO2 allowance allocated for a control 

period in 2015 or later, 0.35 ton of sulfur dioxide, except as 

provided in 9VAC5-140-3540 B. 

4. An authorization to emit sulfur dioxide that is not issued 

under 9VAC5-140-3880, under the Acid Rain Program 

under the provisions of a state implementation plan that are 

approved under 40 CFR 51.124(o)(1) or (2) or (r), or under 

40 CFR 97.288 shall not be a CAIR SO2 allowance. 

"CAIR SO2 allowance deduction" or "deduct CAIR SO2

allowances" means the permanent withdrawal of CAIR SO2

allowances by the administrator from a compliance account, 

e.g., in order to account for a specified number of tons of total 

sulfur dioxide emissions from all CAIR SO2 units at a CAIR 

SO2 source for a control period, determined in accordance 

with Article 8 (9VAC5-140-3700 et seq.) of this part, or to 

account for excess emissions. 

"CAIR SO2 Allowance Tracking System" means the system 

by which the administrator records allocations, deductions, 

and transfers of CAIR SO2 allowances under the CAIR SO2

Trading Program. This is the same system as the Allowance 

Tracking System under 40 CFR 72.2 by which the 

administrator records allocations, deduction, and transfers of 

acid rain SO2 allowances under the Acid Rain Program. 

"CAIR SO2 Allowance Tracking System account" means an 

account in the CAIR SO2 Allowance Tracking System 

established by the administrator for purposes of recording the 

allocation, holding, transferring, or deducting of CAIR SO2

allowances. Such allowances will be allocated, held, 

deducted, or transferred only as whole allowances. 

"CAIR SO2 allowances held" or "hold CAIR SO2

allowances" means the CAIR SO2 allowances recorded by the 

administrator, or submitted to the administrator for 

recordation, in accordance with Articles 6 (9VAC5-140-3500 

et seq.), 7 (9VAC5-140-3600 et seq.), and 9 (9VAC5-140-

3800 et seq.) of this part or 40 CFR Part 73, in a CAIR SO2

Allowance Tracking System account. 

"CAIR SO2 emissions limitation" means, for a CAIR SO2

source, the tonnage equivalent, in SO2 emissions in a control 

period, of the CAIR SO2 allowances available for deduction 

for the source under 9VAC5-140-3540 A and B for the 

control period. 

"CAIR SO2 source" means a source that includes one or 

more CAIR SO2 units. 

"CAIR SO2 Trading Program" means a multi-state sulfur 

dioxide air pollution control and emission reduction program 

approved and administered by the administrator in accordance 

with this part, subparts AAA through III of 40 CFR Part 96,

and 40 CFR 51.124 (o)(1) or (2) or established by the 

administrator in accordance with subparts AAA through III of 

40 CFR Part 97 and 40 CFR 51.124(r) and 52.36, as a means 

of mitigating interstate transport of fine particulates and 

sulfur dioxide. 

"CAIR SO2 unit" means a unit that is subject to the CAIR 

SO2 Trading Program under 9VAC5-140-3040 and, except 

for purposes of 9VAC5-140-3050, a CAIR SO2 opt-in unit 

under Article 9 (9VAC5-140-3800 et seq.) of this part. 

"Clean Air Act" or "CAA" means the Clean Air Act, 

42 USC § 7401 et seq. 

"Coal" means any solid fuel classified as anthracite, 

bituminous, subbituminous, or lignite. 

"Coal-derived fuel" means any fuel (whether in a solid, 

liquid, or gaseous state) produced by the mechanical, thermal, 

or chemical processing of coal. 

"Coal-fired" means combusting any amount of coal or coalderived fuel, alone, or in combination with any amount of any 

other fuel. 

"Cogeneration unit" means a stationary, fossil-fuel-fired 

boiler or stationary, fossil-fuel-fired combustion turbine: 
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1. Having equipment used to produce electricity and useful 

thermal energy for industrial, commercial, heating, or 

cooling purposes through the sequential use of energy; and 

2. Producing during the 12-month period starting on the 

date the unit first produces electricity and during any 

calendar year after the calendar year in which the unit first 

produces electricity: 

a. For a topping-cycle cogeneration unit, :

(1) Useful thermal energy not less than 5.0% of total 

energy output; and 

(2) Useful power that, when added to one-half of useful 

thermal energy produced, is not less then 42.5% of total 

energy input, if useful thermal energy produced is 15.0%

15% or more of total energy output, or not less than 

45.0% 45% of total energy input, if useful thermal 

energy produced is less than 15.0% 15% of total energy 

output. 

b. For a bottoming-cycle cogeneration unit, useful power 

not less than 45.0% 45% of total energy input.; and

3. Provided that the total energy input under subdivisions 2 

a (2) and 2 b of this definition shall equal the unit’s total 

energy input from all fuel except biomass if the unit is a 

boiler.

"Combustion turbine" means: 

1. An enclosed device comprising a compressor, a 

combustor, and a turbine and in which the flue gas 

resulting from the combustion of fuel in the combustor 

passes through the turbine, rotating the turbine; and 

2. If the enclosed device under subdivision 1 of this 

definition is combined cycle, any associated duct burner, 

heat recovery steam generator, and steam turbine. 

"Commence commercial operation" means, with regard to a 

unit: 

1. To have begun to produce steam, gas, or other heated 

medium used to generate electricity for sale or use, 

including test generation, except as provided in 9VAC5-

140-3050 and subdivision 8 of 9VAC5-140-3840. 

a. For a unit that is a CAIR SO2 unit under 9VAC5-140-

3040 on the later of November 15, 1990, or the date the 

unit commences commercial operation as defined in 

subdivision 1 of this definition and that subsequently 

undergoes a physical change (other than replacement of 

the unit by a unit at the same source), such date shall 

remain the date of commencement of commercial 

operation of the unit, which shall continue to be treated 

as the same unit. 

b. For a unit that is a CAIR SO2 unit under 9VAC5-140-

3040 on the later of November 15, 1990, or the date the 

unit commences commercial operation as defined in 

subdivision 1 of this definition and that is subsequently 

replaced by a unit at the same source (e.g., repowered), 

such date shall remain the replaced unit's date of 

commencement of commercial operation, and the 

replacement unit shall be treated as a separate unit with a 

separate date for commencement of commercial 

operation as defined in subdivision 1 or 2 of this 

definition as appropriate. 

2. Notwithstanding subdivision 1 of this definition and 

except as provided in 9VAC5-140-3050, for a unit that is 

not a CAIR SO2 unit under 9VAC5-140-3040 on the later 

of November 15, 1990, or the date the unit commences 

commercial operation as defined in subdivision 1 of this 

definition, the unit's date for commencement of 

commercial operation shall be the date on which the unit 

becomes a CAIR SO2 unit under 9VAC5-140-3040. 

a. For a unit with a date for commencement of 

commercial operation as defined in subdivision 2 of this 

definition and that subsequently undergoes a physical 

change (other than replacement of the unit by a unit at 

the same source), such date shall remain the date of 

commencement of commercial operation of the unit, 

which shall continue to be treated as the same unit. 

b. For a unit with a date for commencement of 

commercial operation as defined in subdivision 2 of this 

definition and that is subsequently replaced by a unit at 

the same source (e.g., repowered), such date shall remain 

the replaced unit's date of commencement of commercial 

operation and the replacement unit shall be treated as a 

separate unit with a separate date for commencement of 

commercial operation as defined in subdivision 1 or 2 of 

this definition as appropriate. 

"Commence operation" means: 

1. To have begun any mechanical, chemical, or electronic 

process, including, with regard to a unit, start-up of a unit's 

combustion chamber, except as provided in subdivision 8 

of 9VAC5-140-3840. 

2. For a unit that undergoes a physical change (other than 

replacement of the unit by a unit at the same source) after 

the date the unit commences operation as defined in 

subdivision 1 of this definition, such date shall remain the 

date of commencement of operation of the unit, which 

shall continue to be treated as the same unit. 

3. For a unit that is replaced by a unit at the same source 

(e.g., repowered) after the date the unit commences 

operation as defined in subdivision 1 of this definition, 

such date shall remain the replaced unit's date of 

commencement of operation, and the replacement unit 

shall be treated as a separate unit with a separate date for 

commencement of operation as defined in subdivision 1, 2, 

or 3 of this definition as appropriate, except as provided in 

subdivision 8 of 9VAC5-140-3840. 
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"Common stack" means a single flue through which 

emissions from two or more units are exhausted. 

"Compliance account" means a CAIR SO2 Allowance 

Tracking System account, established by the administrator for 

a CAIR SO2 source subject to an acid rain emissions 

limitations under 40 CFR 73.31(a) or (b) or for any other 

CAIR SO2 source under Article 6 (9VAC5-140-3500 et seq.) 

or Article 9 (9VAC5-140-3800 et seq.) of this part, in which 

any CAIR SO2 allowance allocations for the CAIR SO2 units 

at the source are initially recorded and in which are held any 

CAIR SO2 allowances available for use for a control period in 

order to meet the source's CAIR SO2 emissions limitation in 

accordance with 9VAC5-140-3540. 

"Continuous emission monitoring system" or "CEMS" 

means the equipment required under Article 8 (9VAC5-140-

3700 et seq.) of this part to sample, analyze, measure, and 

provide, by means of readings recorded at least once every 15 

minutes (using an automated data acquisition and handling 

system (DAHS)), a permanent record of sulfur dioxide 

emissions, stack gas volumetric flow rate, stack gas moisture 

content, and oxygen or carbon dioxide concentration (as 

applicable), in a manner consistent with 40 CFR Part 75. The 

following systems are the principal types of continuous 

emission monitoring systems required under Article 8 

(9VAC5-140-3700 et seq.) of this part: 

1. A flow monitoring system, consisting of a stack flow 

rate monitor and an automated data acquisition and 

handling system and providing a permanent, continuous 

record of stack gas volumetric flow rate, in standard cubic 

feet per hour (scfh); 

2. A sulfur dioxide monitoring system, consisting of a SO2

pollutant concentration monitor and an automated data 

acquisition and handling system and providing a 

permanent, continuous record of SO2 emissions, in parts 

per million (ppm); 

3. A moisture monitoring system, as defined in 40 CFR 

75.11(b)(2) and providing a permanent, continuous record 

of the stack gas moisture content, in percent H2O; 

4. A carbon dioxide monitoring system, consisting of a 

CO2 pollutant concentration monitor (or an oxygen 

monitor plus suitable mathematical equations from which 

the CO2 concentration is derived) and an automated data 

acquisition and handling system and providing a 

permanent, continuous record of CO2 emissions, in percent 

CO2; and 

5. An oxygen monitoring system, consisting of an O2

concentration monitor and an automated data acquisition 

and handling system and providing a permanent, 

continuous record of O2 in percent O2. 

"Control period" means the period beginning January 1 of a 

calendar year, except as provided in 9VAC5-140-3060 C 2, 

and ending on December 31 of the same year, inclusive. 

"Emissions" means air pollutants exhausted from a unit or 

source into the atmosphere, as measured, recorded, and 

reported to the administrator by the CAIR-designated 

representative and as determined by the administrator in 

accordance with Article 8 (9VAC5-140-3700 et seq.) of this 

part. 

"Excess emissions" means any ton, or portion of a ton, of 

sulfur dioxide emitted by the CAIR SO2 units at a CAIR SO2

source during a control period that exceeds the CAIR SO2

emissions limitation for the source, provided that any portion 

of a ton of excess emissions shall be treated as one ton of 

excess emissions. 

"Fossil fuel" means natural gas, petroleum, coal, or any form 

of solid, liquid, or gaseous fuel derived from such material. 

"Fossil-fuel-fired" means, with regard to a unit, combusting 

any amount of fossil fuel in any calendar year. 

"General account" means a CAIR SO2 Allowance Tracking 

System account, established under Article 6 (9VAC5-140-

3500 et seq.) of this part, that is not a compliance account. 

"Generator" means a device that produces electricity. 

"Heat input" means, with regard to a specified period of 

time, the product (in mmBtu/time) of the gross calorific value 

of the fuel (in Btu/lb) divided by 1,000,000 Btu/mmBtu and 

multiplied by the fuel feed rate into a combustion device (in 

lb of fuel/time), as measured, recorded, and reported to the 

administrator by the CAIR-designated representative and 

determined by the administrator in accordance with Article 8 

(9VAC5-140-3700 et seq.) of this part and excluding the heat 

derived from preheated combustion air, recirculated flue 

gases, or exhaust from other sources. 

"Heat input rate" means the amount of heat input (in 

mmBtu) divided by unit operating time (in hr) or, with regard 

to a specific fuel, the amount of heat input attributed to the 

fuel (in mmBtu) divided by the unit operating time (in hr) 

during which the unit combusts the fuel. 

"Hg Budget Trading Program" means a multistate Hg air 

pollution control and emission reduction program approved 

and administered by the administrator in accordance with Part 

VI (9VAC5-140-5010 et seq.) of this chapter and 40 CFR 

60.24(h)(6), or established by the administrator under § 111 

of the Clean Air Act, as a means of reducing national Hg 

emissions. 

"Implementation plan" means the portion or portions of the 

state implementation plan, or the most recent revision thereof, 

which has been approved in subpart VV of 40 CFR Part 52 by 

the administrator under § 110 of the CAA, or promulgated 

under § 110(c) of the CAA, or promulgated or approved 
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pursuant to regulations promulgated under § 301(d) of the 

CAA and which implements the relevant requirements of the 

CAA. 

"Life of the unit, firm power contractual arrangement" 

means a unit participation power sales agreement under 

which a utility or industrial customer reserves, or is entitled to 

receive, a specified amount or percentage of nameplate 

capacity and associated energy generated by any specified 

unit and pays its proportional amount of such unit's total 

costs, pursuant to a contract: 

1. For the life of the unit; 

2. For a cumulative term of no less than 30 years, including 

contracts that permit an election for early termination; or 

3. For a period no less than 25 years or 70.0% 70% of the 

economic useful life of the unit determined as of the time 

the unit is built, with option rights to purchase or release 

some portion of the nameplate capacity and associated 

energy generated by the unit at the end of the period. 

"Maximum design heat input" means the maximum amount 

of fuel per hour (in Btu/hr) that a unit is capable of 

combusting on a steady state basis as of the initial installation 

of the unit as specified by the manufacturer of the unit. 

"Monitoring system" means any monitoring system that 

meets the requirements of Article 8 (9VAC5-140-3700 et 

seq.) of this part, including a continuous emissions 

monitoring system, an alternative monitoring system, or an 

excepted monitoring system under 40 CFR Part 75. 

"Most stringent state or federal SO2 emissions limitation" 

means, with regard to a unit, the lowest SO2 emissions 

limitation (in terms of lb/mmBtu) that is applicable to the unit 

under the Virginia Air Pollution Control Law or federal law, 

regardless of the averaging period to which the emissions 

limitation applies. In cases where a unit is subject to a permit 

that provides for the use of multiple fuels, the primary fuel 

shall be used as the basis to determine the most stringent state 

or federal SO2 emissions limitation. The primary fuel shall be 

the fuel designated in the permit as such or resulting in the 

lowest emissions rate.

"Nameplate capacity" means, starting from the initial 

installation of a generator, the maximum electrical generating 

output (in MWe) that the generator is capable of producing on 

a steady state basis and during continuous operation (when 

not restricted by seasonal or other deratings) as of such 

installation as specified by the manufacturer of the generator 

or, starting from the completion of any subsequent physical 

change in the generator resulting in an increase in the 

maximum electrical generating output (in MWe) that the 

generator is capable of producing on a steady state basis and 

during continuous operation (when not restricted by seasonal 

or other deratings), such increased maximum amount as of 

such completion as specified by the person conducting the 

physical change. 

"Nonattainment condition" means a condition where any 

area is shown by air quality monitoring data or that is shown 

by an air quality impact analysis (using 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, regardless of whether such demonstration is based 

on current or projected emissions data. 

"Operator" means any person who operates, controls, or 

supervises a CAIR SO2 unit or a CAIR SO2 source and shall 

include, but not be limited to, any holding company, utility 

system, or plant manager of such a unit or source. 

"Owner" means any of the following persons: 

1. With regard to a CAIR SO2 source or a CAIR SO2 unit 

at a source, respectively: 

a. Any holder of any portion of the legal or equitable title 

in a CAIR SO2 unit at the source or the CAIR SO2 unit; 

b. Any holder of a leasehold interest in a CAIR SO2 unit 

at the source or the CAIR SO2 unit; or 

c. Any purchaser of power from a CAIR SO2 unit at the 

source or the CAIR SO2 unit under a life of the unit, firm 

power contractual arrangement; provided that, unless 

expressly provided for in a leasehold agreement, owner 

shall not include a passive lessor, or a person who has an 

equitable interest through such lessor, whose rental 

payments are not based (either directly or indirectly) on 

the revenues or income from such CAIR SO2 unit; or 

2. With regard to any general account, any person who has 

an ownership interest with respect to the CAIR SO2

allowances held in the general account and who is subject 

to the binding agreement for the CAIR-authorized account 

representative to represent the person's ownership interest 

with respect to CAIR SO2 allowances. 

"Permitting authority" means the state air pollution control 

agency, local agency, other state agency, or other agency 

authorized by the administrator to issue or revise permits to 

meet the requirements of the CAIR SO2 Trading Program in 

accordance with Article 3 (9VAC5-140-3200 et seq.) of this 

part or, if no such agency has been so authorized, the 

administrator. For the Commonwealth of Virginia, the 

permitting authority shall be the State Air Pollution Control 

Board. The board will issue or revise permits to meet the 

requirements of the CAIR SO2 Trading Program in 

accordance with Article 3 (9VAC5-140-3200 et seq.) of this 

part.

"Potential electrical output capacity" means 33.0% 33% of a 

unit's maximum design heat input, divided by 3,413 

Btu/kWh, divided by 1,000 kWh/MWh, and multiplied by 

8,760 hr/yr. 
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"Receive or receipt of" means, when referring to the 

permitting authority or the administrator, to come into 

possession of a document, information, or correspondence 

(whether sent in hard copy or by authorized electronic 

transmission), as indicated in an official log, or by a notation 

made on the document, information, or correspondence, by 

the permitting authority or the administrator in the regular 

course of business. 

"Recordation," "record," or "recorded" means, with regard to 

CAIR SO2 allowances, the movement of CAIR SO2

allowances by the administrator into or between CAIR SO2

Allowance Tracking System accounts, for purposes of 

allocation, transfer, or deduction. 

"Reference method" means any direct test method of 

sampling and analyzing for an air pollutant as specified in 40 

CFR 75.22. 

"Replacement," "replace," or "replaced" means, with regard 

to a unit, the demolishing of a unit, or the permanent 

shutdown and permanent disabling of a unit, and the 

construction of another unit (the replacement unit) to be used 

instead of the demolished or shutdown unit (the replaced 

unit). 

"Repowered" means, with regard to a unit, replacement of a 

coal-fired boiler with one of the following coal-fired 

technologies at the same source as the coal-fired boiler: 

1. Atmospheric or pressurized fluidized bed combustion; 

2. Integrated gasification combined cycle; 

3. Magnetohydrodynamics; 

4. Direct and indirect coal-fired turbines; 

5. Integrated gasification fuel cells; or 

6. As determined by the administrator in consultation with 

the Secretary of Energy, a derivative of one or more of the 

technologies under subdivisions 1 through 5 of this 

definition and any other coal-fired technology capable of 

controlling multiple combustion emissions simultaneously 

with improved boiler or generation efficiency and with 

significantly greater waste reduction relative to the 

performance of technology in widespread commercial use 

as of January 1, 2005. 

"Sequential use of energy" means: 

1. For a topping-cycle cogeneration unit, the use of reject 

heat from electricity production in a useful thermal energy 

application or process; or 

2. For a bottoming-cycle cogeneration unit, the use of 

reject heat from useful thermal energy application or 

process in electricity production. 

"Serial number" means, for a CAIR SO2 allowance, the 

unique identification number assigned to each CAIR SO2

allowance by the administrator. 

"Solid waste incineration unit" means a stationary, fossilfuel-fired boiler or stationary, fossil-fuel-fired combustion 

turbine that is a "solid waste incineration unit" as defined in 

§ 129(g)(1) of the Clean Air Act. 

"Source" means all buildings, structures, or installations 

located in one or more contiguous or adjacent properties 

under common control of the same person or persons. For 

purposes of § 502(c) of the Clean Air Act, a "source," 

including a "source" with multiple units, shall be considered a 

single "facility." 

"State" means the Commonwealth of Virginia. The term 

"state" shall have its conventional meaning where such 

meaning is clear from the context. 

"State operating permit" means a permit issued under Article 

5 (9VAC5-80-800 et seq.) of Part II of 9VAC5 Chapter 80

9VAC5-80 (Permits for Stationary Sources). 

"State operating permit regulations" means the regulations 

codified in Article 5 (9VAC5-80-800 et seq.) of Part II of 

9VAC5 Chapter 80 9VAC5-80 (Permits for Stationary 

Sources). 

"Submit or serve" means to send or transmit a document, 

information, or correspondence to the person specified in 

accordance with the applicable regulation: 

1. In person; 

2. By United States Postal Service; or 

3. By other means of dispatch or transmission and delivery. 

Compliance with any "submission" or "service" deadline 

shall be determined by the date of dispatch, transmission, 

or mailing and not the date of receipt. 

"Title V operating permit" means a permit issued under 

Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 

se seq.) of Part II of 9VAC5 Chapter 80 9VAC5-80 (Permits 

for Stationary Sources). 

"Title V operating permit regulations" means the regulations 

codified in Article 1 (9VAC5-80-50 et seq.), Article 2 

(9VAC5-80-310 et seq.), Article 3 (9VAC5-80-360 et seq.), 

and Article 4 (9VAC5-80-710 et seq.) of Part II of 9VAC5 

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

"Ton" means 2,000 pounds. For the purpose of determining 

compliance with the CAIR SO2 emissions limitation, total 

tons of sulfur dioxide emissions for a control period shall be 

calculated as the sum of all recorded hourly emissions (or the 

mass equivalent of the recorded hourly emission rates) in 

accordance with Article 8 (9VAC5-140-3700 et seq.) of this 

part, but with any remaining fraction of a ton equal to or 

greater than 0.50 tons deemed to equal one ton and any 
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2133

remaining fraction of a ton less than 0.50 tons deemed to 

equal zero tons. 

"Topping-cycle cogeneration unit" means a cogeneration 

unit in which the energy input to the unit is first used to 

produce useful power, including electricity, and at least some 

of the reject heat from the electricity production is then used 

to provide useful thermal energy. 

"Total energy input" means, with regard to a cogeneration 

unit, total energy of all forms supplied to the cogeneration 

unit, excluding energy produced by the cogeneration unit 

itself. Each form of energy supplied shall be measured by the 

lower heating value of that form of energy calculated as 

follows:

LHV = HHV – 10.55(W + 9H)

where:

LHV = lower heating value of fuel in Btu/lb.

HHV = higher heating value of fuel in Btu/lb.

W = Weight percent of moisture in fuel.

H = Weight percent of hydrogen in fuel.

"Total energy output" means, with regard to a cogeneration 

unit, the sum of useful power and useful thermal energy 

produced by the cogeneration unit. 

"Unit" means a stationary, fossil-fuel-fired boiler or 

combustion turbine or other stationary, fossil-fuel-fired 

combustion device. 

"Unit operating day" means a calendar day in which a unit 

combusts any fuel. 

"Unit operating hour" or "hour of unit operation" means an 

hour in which a unit combusts any fuel. 

"Useful power" means, with regard to a cogeneration unit, 

electricity or mechanical energy made available for use, 

excluding any such energy used in the power production 

process (which process includes, but is not limited to, any onsite processing or treatment of fuel combusted at the unit and 

any on-site emission controls). 

"Useful thermal energy" means, with regard to a 

cogeneration unit, thermal energy that is: 

1. Made available to an industrial or commercial process 

(not a power production process), excluding any heat 

contained in condensate return or makeup water; 

2. Used in a heating application (e.g., space heating or 

domestic hot water heating); or 

3. Used in a space cooling application (i.e., thermal energy 

used by an absorption chiller). 

"Utility power distribution system" means the portion of an 

electricity grid owned or operated by a utility and dedicated 

to delivering electricity to customers. 

VA.R. Doc. No. R09-1686; Filed January 21, 2009, 3:35 p.m. 

STATE WATER CONTROL BOARD 

Final Regulation 

Title of Regulation: 9VAC25-260. Water Quality 

Standards (amending 9VAC25-260-10, 9VAC25-260-20, 

9VAC25-260-30, 9VAC25-260-50, 9VAC25-260-90, 

9VAC25-260-140, 9VAC25-260-160, 9VAC25-260-170, 

9VAC25-260-185, 9VAC25-260-187, 9VAC25-260-310, 

9VAC25-260-350, 9VAC25-260-360, 9VAC25-260-380, 

9VAC25-260-390, 9VAC25-260-400, 9VAC25-260-410, 

9VAC25-260-415, 9VAC25-260-420, 9VAC25-260-430, 

9VAC25-260-440, 9VAC25-260-450, 9VAC25-260-460, 

9VAC25-260-470, 9VAC25-260-480, 9VAC25-260-490, 

9VAC25-260-500, 9VAC25-260-510, 9VAC25-260-520, 

9VAC25-260-530, 9VAC25-260-540; repealing 9VAC25-

260-55, 9VAC25-260-290, 9VAC25-260-320).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; 

33 USC § 1251 et seq. of the federal Clean Water Act; 40 

CFR Part 131. 

Effective Date: Effective upon filing notice of U.S. EPA 

approval with the Registrar of Regulations. 

Agency Contact: David C. Whitehurst, Department of 

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

Richmond, VA 23218, telephone (804) 698-4121, FAX (804) 

698-4116, or email dcwhitehurst@deq.virginia.gov. 

Summary:

The most important potential changes to the water quality 

standards are a narrative criterion to recognize that 

certain waters in the Commonwealth are naturally low in 

dissolved oxygen and pH (swamp waters), and updates to 

the toxics and bacteria criteria and special standards to 

reflect site specific conditions. There are changes in many 

other sections of the regulation during this review. These 

include the updates to the Chesapeake Bay nutrient related 

criteria, updates to stream classifications in the river basin 

section tables, deletions of sections that are unused or no 

longer needed, and miscellaneous updates and 

clarifications.

The following substantive changes have been made since 

the proposed action was published: retention of the 

existing E. coli bacteria criteria in 9VAC25-260-170 at the 

current 0.8% risk level for freshwater recreation with some 

updates to more closely reflect Environmental Protection 

Agency (EPA) recommendations; and postponement of 

revisions to the freshwater aquatic life criteria for 

cadmium and lead until considered more fully by the 

triennial review ad hoc advisory committee that will be