September Update

The State Water Control Board will hold its next meeting on September 22-23. There are three primary items on the agenda.  

•The Board will consider the reissuance of Dominion’s Chesterfield Power Station VPDES permit.  This permit will permit the dewatering of the facility’s coal ash ponds prior to pond closure.  

•The Board will also vote on DEQ’s General VPDES Watershed Permit for Total Nitrogen and Total Phosphorus in the Chesapeake Bay Watershed.  DEQ is proposing a number of changes to this nutrient general permit.  Most significantly, DEQ is proposing to allow small, "non-significant" dischargers to generate credits and participate in the trading program implemented under this permit. DEQ is also proposing more frequent sampling for certain facilities.  The proposal also includes changes to how data below the quantification level is addressed, a new provision for public comment on any nonpoint to point source trades with a trading ratio of less than 2:1.  

•Finally, the Board will hear proposed changes to DEQ’s Erosion and Sediment Control regulations to update these regulations in light of statutory changes to the Erosion and Sediment Control Law regarding exemptions to new water quantity requirements for E&S control. E&S plans approved on or after July 1, 2014 that are grandfathered under the Virginia Stormwater Management Regulations are authorized to continue to use the old water quantity requirements for flow rate capacity and velocity under the E&S Control Program.  

A future meeting is scheduled for December 12-13.  The Governor has yet to appoint a replacement for Board member Joseph Nash whose term expired June 30. 

The Air Pollution Control Board will meet on September 9. The primary agenda item is the final approval of four regulations.  

•The Board will vote on the approval of Ozone Implementation regulations.  These regulations implement EPA’s 2008 ozone national ambient air quality standards (NAAQS) for a nonattainment area state implementation plans (SIPs), including the revocation at the state level of EPA’s 1997 ozone NAAQS which EPA has also revoked.  

•The Board will vote on regulations regarding Commercial/Industrial/Solid Waste Incinerators.  These regulations are being amended so that Virginia’s regulations track with EPA revisions to its Subpart DDDD emissions guidelines amended by EPA in June.  

•The Board will vote on proposed revisions to DEQ’s Federal Operating Permits regulations.  The proposed revisions are in response to EPA’s Startup, Shutdown, and Malfunction (SSM) regulations and Virginia’s SIP.  The proposed revisions remove the current affirmative defense in the regulations for SSMs. 

•Finally, the Board will vote on the repeal of Virginia’s Clean Air Interstate Rule, which has been replaced by EPA’s Cross-State Air Pollution Rule.  

The next meeting is set for December 5.  

The Waste Management Board met on June 20; additional 2016 meeting dates have not been set. 

2.  New Guidance.  

•DEQ’s Air Division recently released new guidance regarding Concrete Plant Procedure for Writing New and Modified Permits. This new guidance specifies the permitting requirements for concrete batch plants for New Source Review permits using the concrete batch plant boilerplate conditions. The guidance provides technology requirements, emission calculation guidance, and modeling details, in addition to providing boilerplate permit requirements. 

•DEQ is proposing significant revisions to its Civil Enforcement Manual.  The proposed revisions are now out for public comment through October 21.  Chapters 2 (General Enforcement Procedures), 3 (Priority, Timeliness and Certainty of Enforcement Actions) and 4 (Civil Charges and Civil Penalties) of the current Manual are affected.  In general, the proposed revisions significantly reorganize and condense these chapters of the Manual.   Of particular interest to VAA members are the revisions to Chapter 4, which governs Civil Charges and Civil Penalties.  DEQ is proposing increases in the amounts in the civil penalty worksheets, as well as new Civil Penalty Worksheets for certain violations (for example, a new Worksheet to calculate penalties for Oil Discharges to Land or Storm Drain Systems).  While some proposed increases are modest, such as those for reporting violations in the Air program, other proposed penalty increases, such as those for groundwater withdrawal violations, are significant (nearly 70 percent for some groundwater withdrawal violations).  The public notice is available here and the draft text of the proposed changes is available here.   

 

3.National Marine Fisheries Service (NMFS) Proposed Rule Establishing "Critical Habitat" for the Atlantic Sturgeon.

 The U.S. National Marine Fisheries Service (NMFS) has issued a proposed rule establishing the "critical habitat" for the Atlantic Sturgeon.  The rule identifies five "critical habitat units" for the sturgeon in the Chesapeake Bay watershed:

(1) Susquehanna River from the Conowingo Dam downstream for 16 river kilometers to where the main stem river discharges at its mouth into the Chesapeake Bay; 

(2) Potomac River from the Little Falls Dam downstream for 189 river kilometers to where the main stem river discharges at its mouth into the Chesapeake Bay; 

(3) Rappahannock River from the U.S. Highway 1 Bridge, downstream for 172 river kilometers to where the river discharges at its mouth into the Chesapeake Bay; 

(4) York River from its confluence with the Mattaponi and Pamunkey rivers downstream to where the main stem river discharges at its mouth into the Chesapeake Bay as well as the waters of the Mattaponi River from its confluence with the York River and upstream to the Virginia State Route 360 Bridge crossing of the Mattaponi River, and waters of the Pamunkey River from its confluence with the York River and upstream to the Virginia State Route 360 Bridge crossing of the Pamunkey River for a total of 192 kilometers of aquatic habitat, 

(5) James River from Boshers Dam downstream for 160 river kilometers to where the main stem river discharges at its mouth into the Chesapeake Bay at Hampton Roads. In total, these designations encompass approximately 729 kilometers (453 miles) of aquatic habitat.

The proposed rule notes that special management may be required in these areas to avoid adverse impacts from activities, including wastewater treatment and water withdrawals.  NMFS accepted public comment on the rule through September 1.  A copy of the rule can be found here.   

 

At its August 18 meeting, the Department of Game and Inland Fisheries approved proposed regulatory changes to its endangered and threatened species program to ensure that the regulations reflect the most recent federal species listings and to remove the state listing of the Big Sandy Crayfish which has been federally listed as of May 9, 2016.  The amended list goes into effect October 1, 2016. 

 

Facilities subject to an Industrial Stormwater VPDES permit were required to submit their second Semi-Annual DMR Submission by July 10th.  If the data in the two DMRs demonstrate the potential exceedance of the loading value in the permit, then a Chesapeake Bay TMDL Action Plan must be submitted to DEQ for approval by September 28, 2016.  DEQ has issued guidance that outlines the Bay TMDL Action Plan requirements.  That guidance starts on page 39 of this document.