April Update

On April 3, Governor Northam issued Executive Order 6 titled "Executive Order Supporting the Critical Role of the Virginia Department of Environmental Quality in Protection of Virginia’s Air, Water, and Public Health." The Order, issued on the 25th Anniversary of DEQ, requires DEQ to review many of its permitting, monitoring, and enforcement activities, evaluate impacts of President Trump’s environmental policy changes, and improve communication with stakeholders and the public.

The Order requires DEQ, in consultation with the Secretary of Natural Resources, to perform a comprehensive review of DEQ’s permitting, monitoring, and enforcement activities across all program areas and provide a full report to Governor Northam by April 30, 2019. The purpose of the review is to determine whether DEQ’s programs are as protective of public health and the environment as authorized under state and/or federal law. DEQ is also required to evaluate the enforceability of its permitting activity, the extent and causes of any permitting backlogs and any gaps in DEQ resources or authorities.The Order requires DEQ to develop a protocol for engaging the Attorney General’s Office on enforcement efforts and to reevaluate its penalty matrix for enforcement. With respect to consideration of changes made by President Trump’s administration, DEQ must ensure that any federal regulatory rollback does not alter DEQ’s authority to protect public health, drinking water supplies and the environment.

The communications portion of the Order requires DEQ to find ways to enhance public participation and community engagement, including the establishment of an ombudsman to address public questions or concerns.

The Order requires monthly reporting to the Secretary of Natural Resources as well as several interim reports tied to specific requirements in the Order, and a final report to the Governor by April 30, 2019.

Governor Northam reappointed longtime DEQ Director David Paylor on April 2. Director Paylor was initially appointed Directory by Governor Tim Kaine in 2006 and has served as Director ever since. Many environmental groups called on the Governor to consider not reappointing Paylor after a challenging term under Governor McAuliffe that included grappling with coal ash management and interstate natural gas pipeline issues. Governor Northam’s executive order above will ensure that the Governor and the Secretary of Natural Resources will be more engaged in shaping Virginia’s environmental policy.

Board of Game and Inland Fisheries met on January 17, 2018. No items of relevance to VAA members were addressed. The Board will next meet on April 12. The agenda does not include any items that may impact VAA members.

The Board will vote on a request to hold a public comment period and public hearing on the proposed re-issuance of the VPDES General Permit for Concrete Facilities (which expires Sept. 30, 2018). Proposed revisions are primarily a result of recommendations from a technical advisory committee that was formed for the permit re-issuance. Changes include clarifications to several provisions including the difference between waste concrete and dredged solids from settling basins, and the removal of unnecessary provisions. DEQ is also proposing to add a requirement to notify MS4 owners when a registration statement is filed and to prohibit the use of dust suppression spraying during measurable rain events.

DEQ will also ask the Board to consider a fast track rule-making process to adopt amendments to the Above-ground Storage Tank (AST) and Pipeline Facility Financial Responsibility Requirements because DEQ believes the amendments will be non-controversial. DEQ is proposing to revise the regulations so that recent changes in the companion regulation (the Aboveground Storage Tank Regulation) excluding certain activities from regulation can be incorporated. Of particular interest to VAA members is a proposed exclusion for ASTs containing asphalt and asphalt compounds that are not liquid at standard conditions of temperature and pressure (60°F at 14.7 pounds per square inch absolute). Such tanks may be excluded from any requirement to install groundwater monitoring wells or groundwater protection devices or to conduct groundwater characterization studies.

The Board will consider the adoption of regulatory amendments to update the references to federal regulations that are incorporated by reference to reflect the most recent federal regulations published in the Code of Federal Regulations on July 1, 2017. The amendments include incorporation by reference of EPA’s Methods Update Rule, which changes some of the analytical testing methods approved by EPA and adds several alternative testing procedures (40 CFR Part 136).

DEQ will ask the Board to consider a fast track rule-making process to amend its water quality standards to include the November 2017 Chesapeake Bay Criteria Assessment Protocols addendum. The addendum provides new assessment procedures for determining short-term dissolved oxygen criteria and provides additional guidance on when a waterbody segment should be categorized as having insufficient information for benthic assessment due to statistical uncertainty.

DEQ is working on the re-issuance of the General VPDES permit for industrial stormwater dischargers. They have formed a Regulatory Advisory Panel (RAP) soliciting input on the re-issuance. Christine Vineski with Virginia Paving will be the VAA representative on the RAP. Two full day meetings of the RAP have been scheduled for April 26 and May 17 at DEQ’s Central Office. We will keep you posted on developments related to the re-issuance of this permit.

As required by the Virginia Code, DEQ is conducting two periodic reviews of its regulations to determine whether the regulations should be repealed, amended, or retained in its current form. The regulations under review include DEQ’s Existing Stationary Source regulations (9 VAC 5-40), including DEQ’s standards for Asphalt Concrete Plants, and DEQ’s Ground Water Standards (9 VAC 25-280).

As part of the review process, DEQ is accepting public comment on the regulations, including whether the regulation (i) is necessary for the protection of public health, safety and welfare, or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

a. Hazardous Waste Generator Improvement Rule. Virginia has adopted the federal Hazardous Waste Generator Improvement Rule. These new provisions go into effect April 8. DEQ is hosting in-person training programs on the new regulations throughout April. Details regarding the training sessions are available here.

b. 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.