October Update

The Board granted final approval for the proposed increase in Title V air permit fees. These fees are a result of legislation passed in the 2012 General Assembly, with follow up legislation in the 2016 General Assembly. Because the program is required by federal and state law to be self-funded, the fee increases are necessary to fund the permitting program given decreasing emissions.

The Board adopted proposed revisions to Virginia’s State Implementation Plan (SIP), the state’s plan to fulfill its responsibilities under the federal Clean Air Act (CAA) to attain and maintain the ambient air quality standards promulgated by EPA. The proposed revisions remove the regulations for emissions trading in Virginia, specifically, the NOx Annual Trading Program and the NOx Ozone Season Trading Program both found in Part I of 9 VAC 5-140. The proposed revisions are in response to EPA’s replacement of the Clean Air Interstate Rule (CAIR) Program with the Cross-State Air Pollution Rule (CSAPR). Virginia will now be covered under CSAPR’s federal implementation plan (FIP). The CAIR regulations are being deleted as required by legislation passed by the General Assembly in 2011 that requires Virginia to repeal CAIR and its implementing regulations once facilities in Virginia become subject to the CSAPR FIP.

The Board approved for adoption via the fast track regulatory process the proposed revisions to its Public Participation Guidelines to allow interested parties to be accompanied by or represented by counsel during the formation of a regulation. This change is based on model Public Participation Guidelines developed by the Department of Planning and Budget, as well as state statute.

DEQ conducted a public comment period and addressed the petition at its March meeting. On September 25, the Board denied the petition. The Board noted the Executive Directive 11 process for addressing Carbon Dioxide emissions and the ongoing rulemaking associated with that directive. Additionally, Executive Order 57 directed the Secretary of Natural Resources to convene a work group to study and recommend methods to reduce CO2 emissions from electric power facilities and grow the clean energy economy within existing state authority. The Board found that these initiatives sufficiently address the issue.

DEQ is in the process of re-designating the Northern Virginia Ozone Nonattainment Area to attainment and proposing a maintenance plan to comply with the CAA National Ambient Air Quality Standards (NAAQS). DEQ will propose the Re-designation as a revision to Virginia’s State Implementation Plan (SIP) under the CAA. The SIP is the plan developed by Virginia to fulfill its responsibilities under the CAA to attain and maintain the ambient air quality standards promulgated by EPA.

Under the proposed re-designation, DEQ will re-designate the nonattainment area (Counties of Arlington, Fairfax, Loudoun, and Prince William; Cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park) to attainment and propose a maintenance plan to ensure that emissions of nitrogen oxides (NOX), volatile organic compounds (VOC), and carbon monoxide (CO) do not exceed the 0.075 ppm 8-hour standard through 2030, enabling the area to continue meeting the 2008 ozone NAAQS. The plan contains control measures that are currently in place and will be continued in order to maintain emissions at or below the 2014 levels. These measures include federal control programs for on-road and non-road engines as well as limitations on local power plants.

DEQ will also propose motor vehicle emissions budgets for the years 2025 and 2030 to ensure that transportation emissions conform to the requirements of the proposed plan for maintaining compliance with the 2008 ozone NAAQS.

DEQ is currently accepting public comments on whether the plan enables the Northern Virginia Ozone Nonattainment Area to maintain compliance with the 2008 ozone NAAQS until at least 2030. The public comment period ends November 15.

The State Water Control Board will meet on December 6-7 and December 11-12. The Board has announced that the Clean Water Act (CWA) Section 401 Water Quality Certifications for the Mountain Valley Pipeline and the Atlantic Coast Pipeline will be considered at these meetings. Complete agendas for the meetings are not yet available. The meetings will be held at the Trinity Family Life Center, 3601 Dill Road, Richmond, VA 23222.

On September 27, DEQ issued its Notice of Intended Regulatory Action (NOIRA) to amend and reissue its General VPDES Permit Regulation for Discharges of Stormwater from Construction Activities, 9VAC25-880 (VAR10). The general permit governs the discharge of stormwater from construction activities equal to or greater than 1 acre of land disturbance or less than 1 acre within a common plan of development. The existing permit expires on June 30, 2019. According to the NOIRA, DEQ does not plan to make significant changes to the permit, but will convene a Technical Advisory Committee to develop proposed revisions. A public comment period on the NOIRA will begin on October 16 and run through November 15.

As a reminder, DEQ’s carryover items from its most recent Triennial Review of Water Quality Standards are still available for public comment through November 17. Among the standards being addressed via a separate carryover rulemaking process are changes to Virginia’s Bacteria, Ammonia, Cadmium and Human Health standards.

On October 4, the U.S. Fish and Wildlife Service proposed to list the candy darter as threatened under the Endangered Species Act. The candy darter is a fish found in Virginia and West Virginia, primarily in the New River watershed. This proposal is the result of litigation filed by the Center for Biological Diversity that a 12-month finding be sent to the Federal Register by September 30, 2017. FWS is accepting comments on the proposed listing through December 4, 2017.

The primary driver for the listing is the species’ hybridization with the variegate darter, although the listing also highlights impacts from sedimentation and changes in temperature. Because the species is proposed as threatened, FWS will be issuing more tailored regulations regarding the protection and management of the candy darter, and how and whether the ESA Section 9 protections will apply to it. FWS indicates that it may provide exceptions or exemptions to the Section 9 requirements for the following activities:

Specific instream and bank habitat restoration activities
Water quality improvement actions such as stream liming
Genetic and populations monitoring
Captive propagation
Sustainable forestry practices adjacent or upslope from streams (but not in streams).

State code requires that state agencies prepare and submit an environmental impact report (EIR) for each major state project. DEQ recently updated its Procedures Manual for EIRs including a worksheet for assisting government agencies in determining whether their project requires the submission of an EIR. While highway and road construction on Virginia Department of Transportation rights-of-way are not subject to EIRs, VAA members may be interested in the revised Manual because EIRs are required for parking lots, sidewalks, driveways and other pavement within a state property boundary if they otherwise meet the EIR criteria. Generally, the EIR criteria include the construction or expansion of a facility with a cost equal to or greater than $500,000 and the acquisition of land for construction purposes. State projects that meet these criteria are required to submit an EIR. DEQ’s updated Procedures Manual is available here.

Applications for the 2018 Governor's Environmental Excellence Awards are still being accepted. For 2018, there are four categories of awards: sustainability, environmental project, land conservation and implementation of the Virginia Outdoors Plan. The application period will end at 5 p.m. on November 9, 2017. More information is available here.