October Update

Continuing his focus on environmental issues, Governor Northam signed Executive Order 22 creating a Governor’s Conservation Cabinet. The purpose of the Conservation Cabinet is to improve coordination across state government agencies to better protect Virginia’s natural resources and improve environmental quality across the Commonwealth. Notably, Virginia’s transportation projects are specifically referenced, and the Secretary of Transportation is part of the designated Conservation Cabinet.

The Cabinet must prepare a report by June 30, 2019 describing the collaboration across state government on conservation issues and creating a "roadmap" for how various efforts, specifically including transportation and municipal infrastructure, interact with Virginia’s land, air and water resources. This Executive Order will likely result in increased emphasis on incorporating environmental and conservation efforts into transportation projects.

On October 2, Governor Northam issued the 2018 Virginia Energy Plan which evaluates Virginia’s energy system and sets forth recommendations for that system. This report is issued every four years. Governor Northam’s stated priorities for solar and onshore wind energy, offshore wind, energy efficiency, energy storage, and electric vehicles and advanced transportation are included in the report. Rather than employing an "all of the above" approach as previous administrations have done, Governor Northam’s plan emphasizes renewable energy production and growth. As it relates to transportation, the Energy Plan sets forth recommendations to adopt the Advanced Clean Cars program of emissions standards, develop a comprehensive electric vehicle transportation plan, and establish targets for both electric vehicle charging infrastructure and the Commonwealth’s vehicle fleet. The Plan is available here.

At its September 20 meeting (discussed in more detail below), the State Water Control Board authorized DEQ to hold a public comment period on the reissuance of the General Industrial Stormwater VPDES Permit. The next step will be publication of the draft permit in the Virginia Register noticing a public comment period. DEQ’s goal is to reissue the permit so that it is effective when the current permit expires in June 2019.

VAA participated in the regulatory advisory panel (RAP) for this permit, and worked hard to obtain helpful changes to streamline and clarify the terms of the permit. VAA will want to comment in support of those changes, as well as seek additional clarity on some of the maintenance/housekeeping provisions. We will notify members once the proposal has been published for public comment.

The State Water Control Board met on September 20. In addition to approving the General Industrial Stormwater VPDES permit for public comment (discussed above), the Board approved public comment periods for the following permits:

Additionally, proposed Water Quality Standards (9VAC25-260) for Chlorophyll criteria (as discussed in detail in last month’s update) were approved to be published for public comment.

The Board also approved as final the VPDES General Permit Regulation for Concrete Products Facilities (9VAC25-193), amendments to the Groundwater Withdrawal Regulations (9VAC25-610) and Fees for Permits and Certificates, and amendments to the Stormwater Management Regulations.

The Board approved final regulations for the control of motor vehicle emissions in Northern Virginia in response to legislation from the 2018 General Assembly Session. The legislation is specific to military surplus vehicles and exempts such vehicles from emissions standards.

The Board also heard DEQ’s request to re-propose its regulations for carbon dioxide (CO2) trading. DEQ had previously proposed a CO2 trading program for utilities. The Board requested that DEQ consider expanding the program to apply to all emission sources, not just utilities. DEQ has held a series of hearings and a public comment period on the question of the applicability of the program. Ultimately, DEQ’s proposal continues to apply only to utilities. DEQ did lower the proposed cap 28 million tons of CO2, with additional reductions of 3% per year through 2030. The re-proposed regulations also include other clarifying changes necessary to make the proposed program consistent with the Regional Greenhouse Gas Initiative. The Board deferred action on this item until its October 29 meeting.

DEQ recently issued guidance addressing implementation policies for the new underground storage tank (UST) regulations that became effective on January 1, 2018. The guidance document includes a new notification form for change of ownership of UST facilities. Most of the guidance addresses new USTs installed on or after January 1, 2018.

DEQ also notes in the guidance that it anticipates creating a future guidance document for regulatory requirements that are not required to be completed until January 1, 2021 under the new UST regulations.

DEQ also issued new guidance regarding appropriate levels of "enforcement discretion" in determining alleged violations of air regulations at gas dispensing operations in response to letters to DEQ from EPA regarding fuel dispensing during severe weather events such as recent Hurricane Florence. The "No Action Assurance" letters from EPA provided a safe haven from enforcement for certain fuel tanker trucks delivering fuel in Virginia that do not meet certain tank tightness, vapor recovery, and documentation requirements for a short period following the hurricane. DEQ’s guidance is available here.

As previously reported, Executive Order 6 involves a comprehensive review of the Department of Environmental Quality. An interim report was due to the Governor on October 1, with the final report due in April 2019. The report has not been made public and is being treated as "Governor’s working papers." However, we understand that the report included recommendations relating to strengthening Virginia’s environmental justice program (including potentially enacting a Virginia-specific environmental justice statute) and enhancing transparency and communication with the public. As this process moves forward, VAA will look for opportunities to participate, supporting the existing programs at DEQ and the progress that has been made in improving Virginia’s environment. We will also highlight the fact that DEQ needs more resources for existing programs (adding permit writers, etc.) rather than adding new programs.

Governor Northam has added Ann C. Phillips to the office of the Secretary of Natural Resources. She will serve in a newly created position titled Special Assistant to the Governor for Coastal Adaptation and Protection. Ms. Phillips formerly chaired the Infrastructure Working Group for the Old Dominion University-convened Hampton Roads Sea Level Rise Preparedness and Resilience Intergovernmental Pilot Planning Project from 2014 to 2016 and currently works on building a collaborative approach to address the impact of sea level rise across Hampton Roads. She is a retired Navy Rear Admiral.