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09.23.2015 Revisions to Key Definitions in Virginia Air Pollution Program Add Flexibility By: Henry R. "Speaker" Pollard, V

Changes to Virginia’s air program that took effect August 13 offer greater flexibility for manufacturers, electric utilities, and other major sources of air pollutants.  These changes reduce the rigidity of two key Virginia program elements by, somewhat ironically, aligning key definitions with federal air program terms.  However, these changes apply unevenly among emission units, so careful analysis is needed.       

One set of changes improves flexibility under Virginia’s New Source Review (“NSR”) program, which requires permitting for new and modified sources of emissions (such as a new facility or a new or larger emission unit at an existing facility).  The amendments revise the definition of “baseline actual emissions” to allow a 10-year look-back period, instead of the current five-year look-back period, for determining relevant baseline emissions data (as measured over a particular consecutive 24-month window within that look-back period).  The longer look-back can capture a data set more favorable for the source when evaluating impacts of new or modified emissions on air quality.  Related revisions allow sources to use different consecutive 24-month periods within the applicable look-back period for various NSR pollutants, i.e., those pollutant that must be evaluated during the NSR permit process.

These amendments also revise the definition of “emissions unit” and add a new definition of “replacement unit.”  The net effect is that, where an emission unit is being replaced and the source is undergoing related NSR review for pollutant impacts, the source can use the baseline actual emissions of the unit being replaced and the projected actual emissions of the replacement unit to evaluate air quality impacts.  This common-sense change allows for fairer treatment of the air pollution impacts of the proposed replacement unit.

Another set of changes improves the usefulness of plant-wide applicability limits (“PALs”).  PALs allow facilities to set certain emissions limits across a whole facility, rather than for individual emission units, thereby providing greater operational flexibility.  Under the recent amendments, sources may use different consecutive 24-month periods for determining the baseline actual emissions when setting PAL levels.  Also, PALs may now be set for a ten-year period within a permit, instead of a five-year period, increasing operational certainty and reducing costs.

31 Va. Reg. 1903 (June 29, 2015), codified at 9 VAC 5-80-1615, 9 VAC 5-80-1865, 9 VAC 5-80-2010, 9 VAC 5-80-2144, 9 VAC 5-85-50, and 9 VAC 5-85-55.