Section 140. Approval process for new and existing affected sources

A. The requirements of subdivisions 1 and 2 of this subsection apply to major sources that include, as of the § 112(j) deadline, one or more sources in a category or subcategory for which the administrator has failed to promulgate an emission standard under 40 CFR Part 63 on or before an applicable § 112(j) deadline. Existing source MACT requirements (including relevant compliance deadlines), as specified in a federal operating permit issued to the source pursuant to the requirements of this article, shall apply to such sources.

1. The owner shall submit an application for a federal operating permit or for a revision to an existing federal operating permit or a pending federal operating permit meeting the requirements of 9VAC5-60-150 A by the § 112(j) deadline if the owner can reasonably determine that one or more sources at the major source belong in the category or subcategory subject to this article.

2. If an application was not submitted under subdivision A 1 of this section and if notified by the board, the owner shall submit an application for a federal operating permit or for a revision to an existing federal operating permit or a pending federal operating permit meeting the requirements of 9VAC5-60-150 A within 30 days after being notified in writing by the board that one or more sources at the major source belong to such category or subcategory.

3. The requirements in this subdivision apply when the owner has obtained a federal operating permit that incorporates a case-by-case MACT determination by the board under the hazardous air pollutant new source review program or has submitted a federal operating permit application for a revision that incorporates a case-by-case MACT determination under the hazardous air pollutant new source review program, but has not submitted an application for a federal operating permit revision that addresses the emission limitation requirements of this article.

a. When the owner has a federal operating permit that incorporates a case-by-case MACT determination by the board under the hazardous air pollutant new source review program, the owner shall submit an application meeting the requirements of 9VAC5-60-150 A for a federal operating permit revision within 30 days of the § 112(j) deadline or within 30 days of being notified in writing by the board that one or more sources at the major source belong in such category or subcategory. Using the procedures established in subsection E of this section, the board will determine whether the emission limitations prescribed pursuant to the prior case-by-case MACT determination under the hazardous air pollutant new source review program are substantially as effective as the emission limitations which the board would otherwise prescribe pursuant to this article for the source in question. If the board determines that the emission limitations previously prescribed to effectuate the hazardous air pollutant new source review program are substantially as effective as the emission limitations that the board would otherwise prescribe to effectuate this article for the source, then the board will retain the existing emission limitations in the permit as the emission limitations to effectuate this article. The federal operating permit applicable to that source shall be revised accordingly. If the board does not retain the existing emission limitations in the permit as the emission limitations to effectuate this article, the MACT requirements of this article are satisfied upon issuance of a revised federal operating permit incorporating any additional requirements of this article.

b. When the owner has submitted a federal operating permit application that incorporates a case-by-case MACT determination by the board under the hazardous air pollutant new source review program, but has not received the permit incorporating the hazardous air pollutant new source review program requirements, the owner shall continue to pursue a federal operating permit that addresses the emission limitation requirements of the hazardous air pollutant new source review program. Within 30 days of issuance of that federal operating permit, the owner shall submit an application meeting the requirements of 9VAC5-60-150 A for a change to the existing federal operating permit. Using the procedures established in subsection E of this section, the board will determine whether the emission limitations prescribed pursuant to the prior case-by-case MACT determination under the hazardous air pollutant new source review program are substantially as effective as the emission limitations that the board would otherwise prescribe pursuant to this article for the source in question. If the board determines that the emission limitations previously prescribed to effectuate the hazardous air pollutant new source review program are substantially as effective as the emission limitations that the board would otherwise prescribe to effectuate this article for the source, then the board will retain the existing emission limitations in the permit as the emission limitations to effectuate this article. The federal operating permit applicable to that source shall be revised accordingly. If the board does not retain the existing emission limitations in the permit as the emission limitations to effectuate this article, the MACT requirements of this article are satisfied upon issuance of a revised federal operating permit incorporating any additional requirements of this article.

B. The requirements of this subsection apply to sources that do not meet the criteria in subsection A of this section on the § 112(j) deadline and are, therefore, not subject to this article on that date, but where events occur subsequent to the § 112(j) deadline that would bring the source under the requirements of this article, and the source does not have a federal operating permit that addresses the requirements of this article.

1. When one or more sources in a category or subcategory subject to the requirements of this article are installed at a major source, or result in the source becoming a major source due to the installation, and the installation does not invoke the hazardous air pollutant new source review program requirements, the owner shall submit an application meeting the requirements of 9VAC5-60-150 A within 30 days of startup of the source. This application shall be reviewed using the procedures established in subsection E of this section. Existing source MACT requirements (including relevant compliance deadlines), as specified in a federal operating permit issued pursuant to the requirements of this article, shall apply to such sources.

2. The requirements in this subdivision apply when one or more sources in a category or subcategory subject to this article are installed at a major source, or result in the source becoming a major source due to the installation, and the installation does require emission limitations to be established and permitted under the hazardous air pollutant new source review program, and the owner has not submitted an application for a federal operating permit revision that addresses the emission limitation requirements of this article. In this case, the owner shall apply for and obtain a federal operating permit that addresses the emission limitation requirements of the hazardous air pollutant new source review program. Within 30 days of issuance of that federal operating permit, the owner shall submit an application meeting the requirements of 9VAC5-60-150 A for a revision to the existing federal operating permit. Using the procedures established in subsection E of this section, the board will determine whether the emission limitations prescribed pursuant to the prior case-by-case MACT determination under the hazardous air pollutant new source review program are substantially as effective as the emission limitations that the board would otherwise prescribe pursuant to this article for the source in question. If the board determines that the emission limitations previously prescribed to effectuate the hazardous air pollutant new source review program are substantially as effective as the emission limitations that the board would otherwise prescribe to effectuate this article for the source, then the board will retain the existing emission limitations in the permit as the emission limitations to effectuate this article. The federal operating permit applicable to that source shall be revised accordingly. If the board does not retain the existing emission limitations in the permit as the emission limitations to effectuate this article, the MACT requirements of this article are satisfied upon issuance of a revised federal operating permit incorporating any additional requirements of this article.

3. The owner of an area source that, due to a relaxation in any federally enforceable emission limitation (such as a restriction on hours of operation), increases its potential to emit hazardous air pollutants such that the source becomes a major source that is subject to this article, shall submit an application meeting the requirements of 9VAC5-60-150 A for a federal operating permit or for an application for a federal operating permit revision within 30 days after the date that such source becomes a major source. This application shall be reviewed using the procedures established in subsection E of this section. Existing source MACT requirements (including relevant compliance deadlines), as specified in a federal operating permit issued pursuant to the requirements of this article, shall apply to such sources.

4. After December 1, 2002, if the administrator establishes a lesser quantity emission rate under § 112(a)(1) of the federal Clean Air Act that results in an area source becoming a major source that is subject to this article, then the owner of such a major source shall submit an application meeting the requirements of 9VAC5-60-150 A for a federal operating permit or for a change to an existing federal operating permit or pending federal operating permit on or before the date six months after the date that such source becomes a major source. Existing source MACT requirements (including relevant compliance deadlines), as specified in a federal operating permit issued pursuant to the requirements of this article, shall apply to such sources.

C. The requirements of this subsection apply to major sources that include one or more sources in a category or subcategory for which the administrator fails to promulgate an emission standard under 40 CFR Part 63 on or before an applicable § 112(j) deadline, and the owner has a permit meeting the requirements of this article, and where changes occur at the major source to equipment, activities, or both, subsequent to the § 112(j) deadline.

1. If the federal operating permit already provides the appropriate requirements that address the events that occur under this subsection subsequent to the § 112(j) deadline, then the source shall comply with the applicable new source MACT or existing source MACT requirements as specified in the permit, and the requirements of this article are thus satisfied.

2. If the federal operating permit does not contain the appropriate requirements that address the events that occur under this subsection subsequent to the § 112(j) deadline, then the owner shall submit an application for a revision to the existing federal operating permit that meets the requirements of 9VAC5-60-150 A. The application shall be submitted within 30 days of beginning construction and shall be reviewed using the procedures established in subsection E of this section. Existing source MACT requirements (including relevant compliance deadlines), as specified in a federal operating permit issued pursuant to the requirements of this article, shall apply to such sources.

D. Provisions concerning requests for applicability determination for MNSR permits are as follows:

1. An owner who is unsure of whether one or more sources at a major source belong in a category or subcategory for which the administrator has failed to promulgate an emission standard under 40 CFR Part 63 may, on or before an applicable § 112(j) deadline, request an applicability determination from the board by submitting an application meeting the requirements of 9VAC5-60-150 A by the applicable deadlines specified in subsection A, B, or C of this section.

2. In addition to meeting the requirements of subsections A, B, and C of this section, the owner of a new affected source may submit an application for a MNSR permit before construction, pursuant to 9VAC5-60-160.

E. Provisions concerning permit application review are as follows:

1. Each owner who is required to submit to the board a Part 1 MACT application that meets the requirements of 9VAC5-60-150 A for one or more sources in a category or subcategory subject to § 112(j) of the federal Clean Air Act shall also submit to the board a timely Part 2 MACT application for the same sources that meets the requirements of 9VAC5-60-150 B. Each owner shall submit the Part 2 MACT application for the sources in a particular category or subcategory no later than the applicable date specified in Table 6-3A. The submission date specified in Table 6-3A for Miscellaneous Organic Chemical Manufacturing shall apply to sources in each of the source categories listed in Table 6-3B. When the owner is required by this article to submit an application meeting the requirements of 9VAC5-60-150 A by a date that is after the date for a Part 2 MACT application for sources in the category or subcategory in question established by Table 6-3A, the owner shall submit a Part 2 MACT application meeting the requirements of 9VAC5-60-150 B within 60 additional days after the applicable deadline for submission of the Part 1 MACT application. Part 2 MACT applications will be reviewed by the board according to procedures established in 9VAC5-60-170. The resulting MACT determination will be incorporated into the source's federal operating permit according to procedures established under the federal operating permit program and any other regulations approved under the federal operating permit program.

2. Notwithstanding subdivision 1 of this subsection, the owner may request either an applicability determination or an equivalency determination by the board as provided in subdivisions 2 a and b of this subsection.

a. Each owner who submitted a request for an applicability determination pursuant to subdivision D 1 of this section on or before May 15, 2002, which remains pending before the board on March 29, 2004, and who still wishes to obtain such a determination, shall resubmit that request by July 1, 2004, or by the date which is 60 days after the administrator publishes in the Federal Register a proposed emission standard for the category or subcategory in question, whichever is later. Each request for an applicability determination that is resubmitted under this subdivision shall be supplemented to discuss the relation between the sources in question and the applicability provision in the proposed emission standard for the category or subcategory in question, and to explain why there may still be uncertainties that require a determination of applicability. The board will take action upon each properly resubmitted and supplemented request for an applicability determination within an additional 60 days after the applicable deadline for the resubmitted request. If the applicability determination is positive, the owner shall submit a Part 2 MACT application meeting the requirements of 9VAC5-60-150 B by the date specified for the category or subcategory in question in Table 6-3A. If the applicability determination is negative, then no further action by the owner is necessary.

b. As specified in subsections A and B of this section, an owner who has submitted an application meeting the requirements of 9VAC5-60-150 A may request a determination by the board of whether emission limitations adopted pursuant to a prior case-by-case MACT determination under the hazardous air pollutant new source review program that apply to one or more sources at a major source in a relevant category or subcategory are substantially as effective as the emission limitations that the board would otherwise adopt pursuant to § 112(j) of the federal Clean Air Act for the source in question. Such a request shall be submitted by the date for the category or subcategory in question specified in Table 6-3A. Any owner who previously submitted such a request under a prior version of this subdivision need not resubmit the request. Each request for an equivalency determination under this subdivision, regardless of when it was submitted, will be construed in the alternative as a complete application for an equivalent emission limitation under § 112(j) of the federal Clean Air Act. The process for determination by the board of whether the emission limitations in the prior case-by-case MACT determination are substantially as effective as the emission limitations that the board would otherwise adopt under § 112(j) of the federal Clean Air Act will include the opportunity for full public, EPA, and affected state review prior to a final determination. If the board determines that the emission limitations in the prior case-by-case MACT determination are substantially as effective as the emission limitations that the board would otherwise adopt under § 112(j) of the federal Clean Air Act, then the board will adopt the existing emission limitations in the permit as the emission limitations to effectuate § 112(j) of the federal Clean Air Act for the source in question. If more than three years remain on the current federal operating permit, the owner shall submit an application for a federal operating permit revision to make any conforming changes in the permit required to adopt the existing emission limitations as the § 112(j) of the federal Clean Air Act MACT emission limitations. If less than three years remain on the current federal operating permit, any required conforming changes will be made when the permit is renewed. If the board determines that the emission limitations in the prior case-by-case MACT determination under the hazardous air pollutant new source review program are not substantially as effective as the emission limitations that the board would otherwise adopt for the source in question under § 112(j) of the federal Clean Air Act, the board will make a new MACT determination and adopt a federal operating permit incorporating an appropriate equivalent emission limitation under § 112(j) of the federal Clean Air Act. Such a determination constitutes final action for purposes of judicial review under the federal operating permit program provisions.

3. Within 60 days of submittal of the Part 2 MACT application, the board will notify the owner in writing whether the application is complete or incomplete. The Part 2 MACT application shall be deemed complete on the date it was submitted unless the board notifies the owner in writing within 60 days of the submittal that the Part 2 MACT application is incomplete. A Part 2 MACT application is complete if it is sufficient to begin processing the application for a federal operating permit addressing the requirements of this article. In the event that the board disapproves a permit application or determines that the application is incomplete, the owner shall revise and resubmit the application to meet the objections of the board. The board will specify a reasonable period in which the owner is required to remedy the deficiencies in the disapproved or incomplete application. This period may not exceed six months from the date the owner is first notified that the application has been disapproved or is incomplete.

4. Following submittal of a Part 1 or Part 2 MACT application, the board may request additional information from the owner. The owner shall respond to such requests in a timely manner.

5. If the owner has submitted a timely and complete application as required by this section, any failure to have a federal operating permit addressing the requirements of this article shall not be a violation of this article, unless the delay in final action is due to the failure of the applicant to submit, in a timely manner, information required or requested to process the application. Once a complete application is submitted, the owner shall not be in violation of the requirement to have a federal operating permit addressing the requirements of this article.

F. The federal operating permit shall contain an equivalent emission limitation (or limitations) for the relevant category or subcategory determined on a case-by-case basis by the board, or, if the applicable criteria in subpart D of 40 CFR Part 63 are met, the federal operating permit may contain an alternative emission limitation. For the purposes of the preceding sentence, early reductions made pursuant to § 112(i)(5)(A) of the federal Clean Air Act shall be achieved not later than the date on which the MACT standard should have been promulgated according to the source category schedule for standards.

1. The federal operating permit shall contain an emission standard or emission limitation that is equivalent to existing source MACT and an emission standard or emission limitation that is equivalent to new source MACT for control of emissions of hazardous air pollutants. The MACT emission standards or limitations shall be determined by the board and shall be based on the degree of emission reductions that can be achieved if the control technologies or work practices are installed, maintained, and operated properly. The permit shall also specify the affected source and the new affected source. If construction of a new affected source or reconstruction of an affected source commences after a federal operating permit meeting the requirements of this article has been issued for the source, the new source MACT compliance dates shall apply.

2. The federal operating permit shall specify any notification, operation and maintenance, performance testing, monitoring, and reporting and recordkeeping requirements. In developing the federal operating permit, the board will consider and specify the appropriate provisions of subpart A of 40 CFR Part 63. The federal operating permit shall also include the information in subdivisions 2 a through c of this subsection.

a. In addition to the MACT emission limitation required by subdivision F 1 of this section, additional emission limits, production limits, operational limits or other terms and conditions necessary to ensure practicable enforceability of the MACT emission limitation;

b. Compliance certifications, testing, monitoring, reporting and recordkeeping requirements that are consistent with requirements established pursuant to the federal operating permit program and subsection H of this section; and

c. Compliance dates by which the owner shall be in compliance with the MACT emission limitation and all other applicable terms and conditions of the permit.

(1) The owner of an affected source subject to the requirements of this subdivision shall comply with the emission limitations by the date established in the source's federal operating permit. In no case shall such compliance date be later than three years after the issuance of the permit for that source, except where the board issues a permit that grants an additional year to comply in accordance with § 112(i)(3)(B) of the federal Clean Air Act, or unless otherwise specified in § 112(i) of the federal Clean Air Act, or in subpart D of 40 CFR Part 63.

(2) The owner of a new affected source, as defined in the federal operating permit meeting the requirements of this article, that is subject to the requirements of this article shall comply with a new source MACT level of control immediately upon startup of the new affected source.

G. The board will issue a federal operating permit meeting the requirements of this article within 18 months after submittal of the complete Part 2 MACT application.

H. In accordance with § 114(a)(3) of the federal Clean Air Act, monitoring shall be capable of demonstrating continuous compliance for each compliance period during the applicable reporting period. Such monitoring data shall be of sufficient quality to be used as a basis for directly enforcing all applicable requirements established under this article, including emission limitations.

I. Provisions concerning MACT emission limitations are as follows:

1. The owner of affected sources subject to subsections A, B, and C of this section shall comply with all requirements of this article that are applicable to affected sources, including the compliance date for affected sources established in subdivision F 2 c (1) of this section.

2. The owner of new affected sources subject to subdivision C 1 of this section shall comply with all requirements of this article that are applicable to new affected sources, including the compliance date for new affected sources established in subdivision F 2 c (2) of this section.

TABLE 6-3A. SECTION 112(j) PART 2 APPLICATION DUE DATES.
Due date	MACT standard
10/30/03	Combustion Turbines.
	Lime Manufacturing.
	Site Remediation.
	Iron and Steel Foundries.
	Taconite Iron Ore Processing.
	Miscellaneous Organic Chemical Manufacturing (MON).1
	Organic Liquids Distribution.
	Primary Magnesium Refining.
	Metal Can (Surface Coating).
	Plastic Parts and Products (Surface Coating).
	Chlorine Production.
	Miscellaneous Metal Parts and Products (Surface Coating) (and Asphalt/Coal Tar Application-Metal Pipes).2
4/28/04	Industrial Boilers, Institutional/ Commercial Boilers and Process Heaters.3
	Plywood and Composite Wood Products.
	Reciprocating Internal Combustion Engines.4
	Auto and Light-Duty Truck (Surface Coating).
8/13/05	Industrial Boilers, Institutional/ Commercial Boilers, and Process Heaters.5
	Hydrochloric Acid Production.6
1Covers 23 source categories; see Table 6-3B. 2Two source categories. 3lncludes all sources in the three categories Industrial Boilers, Institutional/Commercial Boilers, and Process Heaters that burn no hazardous waste. 4lncludes engines greater than 500 brake horsepower. 5Includes all sources in the three categories Industrial Boilers, Institutional/Commercial Boilers, and Process Heaters that burn hazardous waste. 6lncludes furnaces that produce acid from hazardous waste at sources in the category Hydrochloric Acid Production.

TABLE 6-3B.

MISCELLANEOUS ORGANIC NESHAP (MON) SOURCE CATEGORIES.

Manufacture of Paints, Coatings, and Adhesives.

Alkyd Resins Production.

Maleic Anhydride Copolymers Production.

Polyester Resins Production.

Polymerized Vinylidene Chloride Production.

Polymethyl Methacrylate Resins Production.

Polyvinyl Acetate Emulsions Production.

Polyvinyl Alcohol Production.

Polyvinyl Butyral Production.

Ammonium Sulfate Production-Caprolactam By-Product Plants.

Quaternary Ammonium Compounds Production.

Benzyltrimethylammonium Chloride Production.

Carbonyl Sulfide Production.

Chelating Agents Production.

Chlorinated Paraffins Production.

Ethylidene Norbornene Production.

Explosives Production.

Hydrazine Production.

OBPA/1,3-Diisocyanate Production.

Photographic Chemicals Production.

Phthalate Plasticizers Production.

Rubber Chemicals Manufacturing.

Symmetrical Tetrachloropyridine Production.

Historical Notes

Derived from Volume 17, Issue 04, eff. January 1, 2001; amended, Virginia Register Volume 19, Issue 03, eff. December 1, 2002; Volume 20, Issue 16, eff. July 1, 2004.

Statutory Authority

§ 10.1-1308 of the Code of Virginia, § 112 of the Clean Air Act, and 40 CFR Parts 61 and 63.