March Update

2018 GENERAL ASSEMBLY SESSION
The 2018 Virginia General Assembly adjourned on March 10, although the budget conferees will be reconvening to work through a final budget. Following is an update on the bills previously identified as being of potential interest to VAA members: 

•HB 297(Bulova) - This bill would bring agency guidance documents into the Virginia Administrative Process Act process.  The bill requires that all guidance documents be subject to a 30-day public comment period, including publication in the Virginia Register. The bill passed the House and the Senate unanimously. Assuming the Governor signs the bill, which is likely, all agency guidance issued by DEQ, VDOT, VOSH, etc., must go through a 30-day public comment period before being issued.

•HB 1206 (Cline) – This bill directs the State Water Control Board to provide an online system for public notices related to Virginia Pollution Discharge Elimination System permits in order to notify the public of any applications for new or expanded industrial waste discharges. This bill passed the House and the Senate. Assuming the Governor signs the bill, which is likely, the public will be notified of all VPDES permit applications for new or expanded industrial wastewater discharges.

•HB 1270 (Poindexter) – This bill would prohibit the Governor or any state agency from adopting any regulation establishing a carbon dioxide cap-and-trade program or bringing about the participation by the Commonwealth in a regional market for the trading of carbon dioxide allowances. The bill provides that the Commonwealth shall be allowed to participate in such a cap-and-trade program if the House of Delegates and the Senate of Virginia each adopt a resolution that specifically references and approves the regulatory text proposed for adoption by a state agency. This bill is aimed directly at the current regulatory package prepared by DEQ at the request of Governor McAuliffe and currently being considered for public comment. The bill passed the House and the Senate on a party line vote, which may indicate that the Governor is likely to veto the bill. 

•SB 154 (Edwards) – This bill clarifies that a hearing officer conducting a formal hearing on behalf of an agency shall render his/her recommendation or conclusion within the time period specified in such agency's written regulations or procedures, or within 90 days if the agency procedures do not otherwise specify. This bill passed the Senate and the House unanimously.  

These bills will be presented to the Governor for his signature. If the Governor vetoes any of the bills, the General Assembly will have an opportunity to override such veto during the re-convened or "veto" session scheduled for April 18, by a 2/3 vote. 
 
VAA REQUESTS REPRESENTATION ON INDUSTRIAL STORMWATER PERMIT RENEWAL TECHNICAL ADVISORY COMMITTEE
As discussed in the February update, DEQ issued a Notice of Intended Regulatory Action (NOIRA) to reissue the Industrial Stormwater General VPDES Permit Regulation. The TAC will assist DEQ in developing the regulatory proposal for the General Permit. DEQ stated in the NOIRA that it intends to address the following issues during the re-issuance process: registration statement requirements, electronic reporting requirements, effluent limitations, clarifying definitions, facility inspections, Stormwater Pollution Prevention Plan corrective actions, benchmark monitoring, Total Maximum Daily Load requirements and industry-sector specific monitoring requirements.  
VAA submitted a letter in response to the NOIRA requesting that it be represented on the TAC by Christine Vineski of Lane Construction Corporation. We will be coordinating with Christine and providing updates on this process as it moves forward.    

DEQ RELEASES 2018 WATER QUALITY MONITORING PLAN AND ASSESSMENT METHODOLOGY
a) Monitoring Plan 

DEQ has released its 2018 Water Quality Monitoring Plan. The plan provides the public with the locations where DEQ will be conducting water quality monitoring activities during the year. The Monitoring Plan contains detailed information on DEQ’s monitoring activities including the station locations, specific conditions, frequency of monitoring and costs. DEQ has provided a GIS map of all the sampling locations, available here. 

This year’s Plan includes the same special study focuses by DEQ as were included in last year’s Plan.  Those most relevant to VAA members include:  

•Monitoring for non-significant dischargers in the Chesapeake Bay watershed.  This may include VAA member facilities.  
•Focused monitoring in the Clinch River in Southwest Virginia to study certain constituents, including suspended and dissolved solids.  

The Plan is available here.  
 
b) Assessment Manual 

DEQ also has released its draft 2018 Water Quality Assessment Guidance Manual.  The Assessment Manual outlines how DEQ will assess Virginia’s water bodies in order to comply with Section 305(b) and 303(d) of the Clean Water Act. These sections require DEQ to submit to EPA water quality reports and a list of impaired waters.  

DEQ is accepting public comments on the draft Manual through April 19. The notice is available here, and the draft Manual is available here.  

EPA SEEKS PUBLIC COMMENT ON REGULATING DISCHARGES TO GROUNDWATER WITH A HYDROLOGIC CONNECTION TO SURFACE WATER
Although we do not normally report on federal regulatory developments, we wanted VAA members to be aware of a significant development relating to the scope of waters regulated under the Clean Water Act. There has been a lot of debate about whether discharges to groundwater that is hydrologically connected to surface water require a VPDES permit. This question arises primarily in connection with landfills, but can also come up with respect to stormwater ponds, wastewater treatment lagoon and other water bodies where water may seep to groundwater and then ultimately reach surface water.

There are several cases currently pending in the Fourth Circuit (which governs Virginia) on this very question. If those cases conclude that such discharges are regulated under the Clean Water Act, we will see significant changes in our Virginia VPDES permitting program.

In response to the controversy, EPA has issued a request for public comments on this question. EPA is specifically asking whether requiring an NPDES permit for releases to groundwater that reach surface water via a hydrologic connection is consistent with the text, structure and purpose of the Clean Water Act. EPA is also asking whether such releases would be best addressed under the Clean Water Act, other federal authorities, or state. EPA is accepting comments through May 21.  The Federal Register notice is available here.

CARBON DIOXIDE EMMISSIONS TRADING REGULATIONS STILL AVAILABLE FOR PUBLIC COMMENT AND PUBLIC HEARINGS
The proposed regulations creating a CO2 Trading Program are still available for public comment through April 9, 2018. The language of the proposed regulations is available here. As previously noted, one of the issues identified for comment is whether the trading program should retain an exemption for power plants dedicated to serving a specific industrial operation, so that the program only applies to public utilities.

DEQ will also be holding public hearings on the proposed regulations. Here is the schedule for the remaining hearings: 

•March 12, 2018 - 5 p.m. - DEQ, Tidewater Regional Office, 5636 Southern Boulevard, Virginia Beach VA

•March 14, 2018 - 5 p.m. - DEQ, Valley Regional Office, 4411 Early Road, Harrisonburg VA

•March 15, 2018 - 5 p.m. - DEQ, Northern Regional Office, 13901 Crown Court, Woodbridge VA

•March 19, 2018 - 1:30 p.m. - DEQ, Central Office, 1111 East Main Street, 3rd Floor Meeting Room, Richmond VA

GUIDANCE DOCUMENTS
DEQ has issued new guidance regarding for Sulfur/SO2 testing requirements for combustion turbines Subject to 40 CFR Part 60, Subpart KKKK (stationary internal combustion engines). DEQ had submitted a request to DEQ seeking a waiver from the testing requirements if a facility only used pipeline-quality natural gas fuel and the facility was exempted from sulfur monitoring by a current, valid purchase contract, tariff sheet or transportation contract as described in 40 CFR § 60.4365(a).  EPA denied DEQ’s request and DEQ issued this guidance to confirm that testing will be required and to note that testing may be satisfied by a fuel analysis in lieu of formal stack testing. The guidance document is available here. 
 

DEQ ANNUAL HAZARDOUS WASTE REGULATIONS FEDERAL CITATIONS ADOPTION
DEQ completed its annual update to the Virginia’s Hazardous Waste Management Regulations, to update the citations and references to the incorporated federal regulations. The update includes the latest changes to Title 40 of the CFR. The new regulations are available here. 

DEQ HOSTING HAZARDOUS WASTE GENERATOR IMPROVEMENT RULE TRAINING
DEQ will be hosting a webinar and a number of in-person training sessions in its regional offices to share changes to the hazardous waste program resulting from Virginia’s adoption of EPA’s Generator Improvement Rule. The changes go into effect April 8, 2018.  The webinar is on March 22 from 10-12. The regional meetings are throughout April. Details regarding the training sessions are available here. 

CITIZEN BOARDS
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 Jan.17, 2018. No items of relevance to VAA members were addressed. The Board will next meet on April 12. An agenda has not been posted.  

The State Air Control Board last met on Nov.16.  2018 meeting dates have not been set. 

The State Water Control Board last met on December 6-7 and December 11-12.  2018 meeting dates have not been set.  

UPCOMING REGULATORY DEADLINES
a)Annual Air Emission Inventory. Facilities with stationary source Clean Air Act permits must complete and submit their annual air emission inventory required by 9 VAC 5-80-340 to DEQ by April 15. The submission form is available here.