July Update

The State Water Control Board will meet on July 19 at DEQ’s Piedmont Regional Office, 4949-A Cox Road, Glen Allen, Virginia. The agenda includes several items of interest to VAA members. 

a. Final Adoption of VSMP Regulations 

First, the Board will consider the final adoption of amendments to the Stormwater Management Regulations (9VAC25-870-150 A) in order to allow certified Third-Party Professionals to manage Virginia Stormwater Management Program (VSMP) Authorities.  These amendments were prompted by legislation passed during the 2017 General Assembly Session legislation (HB 2009 – Virginia Acts of Assembly Chapter 349). For VAA members, this may result in third party consultants overseeing and approving plans, but should have the impact of expediting plan review and processing and otherwise reducing backlogs for VSMP program management.  

b. Final Adoption of Underground Storage Tank Regulations Revisions 

The Board will also consider the final adoption of amendments to the underground storage tank regulations.  These amendments are needed to update Virginia’s regulations to be consistent with federal regulations.  The amendments include revisions to secondary containment requirements for new and replaced tanks and piping, notification requirements for operational changes, revisions to periodic operation, inspection and maintenance requirements for UST systems, and the inclusion of new release prevention and detection technologies.  There are also some updates to the financial assurance provisions.  VAA members with USTs may be affected by these proposed revisions. 

c. Proposed General Permit Reissuance 

The Board will consider the reissuance of two General VPDES permit for: (1) Discharges from Petroleum Contaminated Sites, Groundwater Remediation and Hydrostatic Tests, and (2) Noncontact Cooling Water Discharges of 50,000 Gallons per Day or Less. 

d. Proposed Public Participation Guidelines Revisions 

The Board will also consider proposed revisions to its Public Participation Guidelines, which would allow interested parties to be accompanied by or represented by counsel during the formation of a regulation. 

e. Future Meeting Dates: 

October 16-18 or November 1-2 (location TBD) 

December 11

The State Air Control Board met on June 22.  There were no noteworthy actions affecting VAA members at the meeting. 

a. Future Meeting Dates: 

September 21

December 7  

b. Notice of Intended Regulatory Action – Regulations for Emissions Trading 

The Board heard a report at the meeting regarding the Governor’s Executive Direct 11 (as summarized in last month’s update) which directs DEQ to launch a process to cap greenhouse gas emissions in the state and make Virginia "trading ready." In response, DEQ issued a Notice of Intended Regulatory Action (NOIRA) on June 26. DEQ’s statement regarding the NOIRA is available here. DEQ is accepting comments on the NOIRA through July 26. Comments may be submitted to Karen G. Sabasteanski. 

The Waste Management Board has not set any future meeting dates.

The Board of Game and Inland Fisheries met on May 24. There were no updates relevant to VAA members at this meeting. The Board will next meet on August 23. 

Governor McAuliffe recently announced the following new appointments to the Board:

•R. Brian Ball of Richmond, Partner, Williams Mullen 

•Ryan J. Brown of Fork Union, Attorney, KaneJefferies, LLP 

•Mamie A. Parker, PhD of Dulles, Fish and Wildlife Executive Coach, Public Speaker and Consultant; Founder, M.A. Parker & Associates, LLC; former Northeast Regional Director, Special Assistant to the Director and Assistant Director (FHC), U. S. Fish and Wildlife Service (FWS) 

•Brian Vincent of Farmville, Marketing Director, Appomattox River Company

DEQ issued new guidance regarding Clean Water Act Section 401 Water Quality Certification Procedures for Evaluating and Developing Additional Conditions for Interstate Natural Gas Infrastructure Projects. The guidance identifies circumstances in which DEQ may need additional information to evaluate whether additional Section 401 conditions may be appropriate to supplement those associated with either a US Army Corps of Engineers (Corps) Permit and/or a Virginia Water Protection (VWP) Permit. The guidance also outlines the procedures for issuing or implementing the additional conditions.  The guidance is available here. 

When the Corps reissues its nationwide permits for wetlands impacts, DEQ must issue a 401 certification that the permits do not adverse Virginia water quality.  DEQ’s blanket 401 water quality certifications were issued in April.  In May, The Dominion Pipeline Monitoring Coalition, the Bold Alliance, and Preserve Craig Inc. filed an appeal of DEQ’s certification of NWP 12, which relates to utility lines.  The appeal raises four claims related to alleged procedural shortcomings in issuing the Water Quality Certification.  First, the petitioners allege that the Water Quality Certification is invalid because the Certification is a regulation and the State Water Control Law prohibits the DEQ Director from adopting or promulgating a regulation.  Second, the petitioners claim that the Commonwealth failed to comply with the procedural requirements for issuing a regulation under the Virginia Administrative Process Act (APA).  The petition also alleges that DEQ failed to conduct an analysis to make a finding that activities covered under Nationwide Permit 12 and the Water Quality Certification are in conformance with water quality standards.  Finally, the petition alleges that record evidence shows that activities conducted under the requirements of Nationwide Permit 12 will violate water quality standards and therefore the Water Quality Certification is arbitrary and capricious.  

Although the appeal is specific to NWP 12, the procedural flaws that the opponents allege apply equally to all of the other NWPs and thus cast a wider shadow over the legality of DEQ’s blanket certification.  

On June 27, 2017, DEQ filed a Motion to Dismiss the appeal.  The Motion to Dismiss raises the argument that the 401 certification is not a "regulation" subject to appeal.  Therefore the court lacks jurisdiction.  The General Assembly only waived sovereign immunity for state agencies for challenges to regulations or case decisions. The Motion lays out why the 401 Certification is not a "regulation" or a "case decision" and cites to case law stating that "de facto" rules are not subject to court review. 

The Motion also lays out an alternative ground for dismissing the procedural claims, arguing that because such claims were not raised by the petitioners in their comments, they have been waived.  

Because of the procedural implications of this appeal, as well as its potential impact on DEQ’s certifications of the other Corps nationwide permits, we will continue to update you on this case.

1. EPCRA TRI Reporting  

Members subject to TRI reporting to DEQ and EPA are reminded of the upcoming July 1 reporting deadline.  More information is available on DEQ’s TRI page.