September Update
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UPDATE ON REISSUANCE OF GENERAL INDUSTRIAL STORMWATER VPDES PERMIT
DEQ held its last Regulatory Advisory Panel (RAP) for the reissuance of the General Industrial Stormwater VPDES Permit on August 16. DEQ is planning to propose the package to the State Water Control Board at its upcoming September 20 meeting seeking the Board’s permission to hold a public comment period on the proposed draft permit. As discussed in previous updates, the permit has been amended in many favorable ways. There are some areas that VAA will likely want to comment on, primarily to seek clarification of requirements, particularly about required maintenance/housekeeping provisions and some changes to the discharges authorized by the permit. We will highlight areas for comment when the proposal is issued by the Board for public comment.
EXECUTIVE ORDER 6 PROCESS CONTINUES
As previously reported, Governor Northam issued Executive Order 6 requiring a comprehensive review of DEQ policies and programs. The final report to the Governor is due in April 2019, but there are interim reporting milestones. The next milestone is October 1. DEQ has been posting the comments it has received throughout this process on their website. There are a significant number of comments that have been submitted, with wide-ranging proposals, from eliminating citizen boards to creating an environmental justice program with its website and regulations to increasing/improving enforcement actions. The comments are grouped by media and can be viewed here.
GOVERNOR NORTHAM ANNOUNCES NEW CLIMATE CHANGE, OCEAN ACIDIFICATION INITIATIVES
Governor Northam recently sent Virginia Secretary of Natural Resources Matt Strickler to the Global Climate Action Summit in San Francisco. At the Summit, Virginia committed to join the Transportation and Climate Initiative (TCI) to work collaboratively with Northeast and Mid-Atlantic states on reducing carbon pollution from the transportation sector.
Virginia also committed to join the International Alliance to Combat Ocean Acidification and develop an Ocean Acidification Action Plan. Virginia will develop an Ocean Acidification Action Plan and work with other governments to raise the visibility and importance of the ocean acidification issue in public discourse and policy development.
Also, in response to recent proposals by EPA to rollback federal methane leak inspection and repair regulations, Governor Northam has asked DEQ to establish a workgroup of environmental, academic and business stakeholders to evaluate the changes and make recommendations for Virginia’s regulatory programs. The group will be formed within the next 120 days. The governor has also asked DEQ to develop a framework for limiting leaking methane from natural gas infrastructure and landfills.
We will continue to monitor regulations that flow from these Executive actions.
DEQ ACCEPTING COMMENTS ON PROPOSED AMMONIA CRITERIA PHASED IMPLEMENTATION PROGRAM
During the last triennial review of Virginia’s water quality standards, the adoption of more stringent Ammonia criteria was considered. In response to stakeholder concerns, DEQ agreed to delay adoption of the standard while it considered developing a phased implementation approach. DEQ has now published a Proposed Ammonia Criteria Phased Implementation Program. It allows facilities to seek extended compliance schedules where warranted based on a number of factors laid out in the proposal. The Phased Implementation Program proposal is available here. DEQ is accepting public comment on the proposal through October 5.
CITIZEN BOARDS
The State Water Control Board met on August 21, 2018.
The Board voted to issue the General VPDES Permit for Discharges of Stormwater from Small Municipal Separate Storm Sewer Systems, as well as the remaining items from the triennial review of water quality standards (including bacteria, cadmium, and 94 human health parameters). The Board also authorized a public comment period for the proposed VPDES General Permit Regulation for Discharges Resulting from the Application of Pesticides to Surface Waters. Finally, the Board upheld its previous issuance of 401 Water Quality Certifications of Nationwide Permit 12 for the Atlantic Coast Pipeline and the Mountain Valley Pipeline.
The Board will next meet on September 20 and has a full agenda that includes final approval of several regulations relevant to VAA.
The Board will consider proposed regulations for the General VPDES Permit for Discharges of Stormwater from Construction Activities (9VAC25-880), the General VPDES Permit for Nonmetallic Mineral Mining (9VAC25-190), the General VPDES Permit for Discharges of Stormwater Associated with Industrial Activity (as further discussed above) and Water Quality Standards (9VAC25-260) for Chlorophyll a criteria.
The Board will consider issuing the VPDES General Permit Regulation for Concrete Products Facilities (9VAC25-193). These regulations were developed with input from a Technical Advisory Committee (TAC) and are necessary given the current General Permit’s September 30, 2018 expiration. The proposed amendments include many clarifications from the existing permit (such as when an O&M manual is required and when visual monitoring results require stormwater control updates) and also removes a number of requirements from the permit as a result of feedback from the TAC (including the requirement for a signed certification for routine facility inspections, removing comprehensive annual inspection, and removing the sampling waiver for benchmark monitoring).
The Board will consider for final approval the Groundwater Withdrawal Regulations (9VAC25-610) and Fees for Permits and Certificates. The amendments change the groundwater withdrawal permit term from a maximum of 10 years to a maximum of 15 years and change the permit application fees for groundwater withdrawal permits to $9,000 effective January 1, 2019. These regulations are exempt from the state APA process because they are necessary to conform to state law.
Likewise, the board will also consider for final approval, the Groundwater Withdrawal Regulations (9VAC25-610). This amendment adds a new section to the regulations requiring a technical evaluation of aquifers underlying subdivisions of 30 or more lots in a designated Groundwater Management Area. These regulations are also exempt from the state APA process.
The Board will consider for final adoption regulations amending the Stormwater Management Regulations, also to address legislative action during the 2018 General Assembly Session (and therefore also exempts the regulatory action from the usual APA process) specific to rural Tidewater communities. The proposed changes would authorize any rural Tidewater locality to adopt a tiered approach based on the percentage of impervious cover in the watershed to manage water quantity for land-disturbing activities that disturb an area of 2,500 square feet or more but less than one acre to comply with the water quantity technical criteria. For land-disturbing activities that disturb 2,500 square feet or more but less than one acre of land would allow a rural Tidewater locality may 1) require a licensed professional retained by the applicant to submit a set of plans and supporting calculations that bear a certification and are signed and sealed by the licensed professional; and 2) accept such plans in satisfaction of the local plan review requirements.
One other proposed amendment to the Stormwater Management Regulations is not Tidewater-specific and would require a VSMP authority to recommend that DEQ terminate coverage under a Construction Stormwater General Permit within 60 days of receiving a complete notice of termination from the operator of the construction activity. The regulations also provide that such permit coverage shall be deemed terminated 90 days after the receipt by the VSMP authority of a complete notice of termination and requires any VSMP authority receiving an incomplete notice to inform the operator within a reasonable time and provide a detailed list of the missing elements.
The Board will also consider for final adoption amendments to the Virginia Water Protection Program Regulations (9VAC25-210, 9VAC25- Harris F 670 and 9VAC25-690) to address legislation passed during the 2018 General Assembly session regarding Virginia Water Protection permitting for natural gas transmission pipelines.
The Board will also consider for final adoption minor amendments to the Virginia Pollutant Discharge Elimination System Permit Regulation (9VAC24-31) to allow newspaper publication of an abbreviated public notice for minor industrial VPDES permits, containing a link to the full public notice on the Department of Environmental Quality’s website.
Further, the agenda includes a significant number of enforcement cases and facilities being reported to EPA as in significant noncompliance. This uptick in enforcement appears to be a focus of the new Administration.
The Waste Management Board met on January 8, and that meeting was summarized in a previous update. Future meeting dates have not been set.
The Board of Game and Inland Fisheries met on August 22. No updates of interest to VAA members occurred at the meeting. The Board will next meet on October 25, and no agenda for that meeting has yet been posted.
The State Air Control Board’s next meeting is scheduled for September 28. The agenda is not yet available.
NEW GUIDANCE DOCUMENTS
DEQ issued two new guidance documents. First, it issued a guidance document updating its procedures for reviewing excess emission reports submitted under air permits and regulations. This guidance is important for those with air permits to review because it outlines the information DEQ expects to be included in such reports, and when DEQ will refer an excess emission report for enforcement purposes. A copy of the guidance can be found here.
The second relates to water reclamation and reuse. This guidance document is meant to promote regional consistency in implementing the Water Reclamation and Reuse Regulation (9VAC25-740-10 et seq.) through the existing VPDES and VPA Permit Programs. The guidance is available here.
