September Update

The State Air Control Board will meet on September 21.   

A final decision on the proposal to increase Title V air permit fees will be made by the Board at this meeting. 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.  

DEQ did not make any substantive changes to the original proposal in response to comments submitted during the public comment period. 

b. CAA State Implementation Plan Revisions for NOx 

The Board will take final action on proposed revisions to Virginia’s State Implementation Plan (SIP), the state’s plan to fulfill its responsibilities under the federal Clean Air Act 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 FIP.  

The Board will take final action on 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.  

The Board will hear an update on a petition filed in February asking the Board to adopt regulations to limit and reduce CO2 pollution in the Commonwealth by 30 percent by 2030. DEQ’s recommendation is that it is not appropriate at this time to adopt regulations to impose CO2 reduction requirements given the current ongoing executive process under Executive Directive 11 to develop proposed regulations to make Virginia "trading ready" for multi-state CO2 trading. 

 e. Future Meeting Dates: 

•December 7 

The State Water Control Board met on July 19 at DEQ’s Piedmont Regional Office as reported last month.  

Governor McAuliffe recently appointed Tim Hayes to the Board.  He is a retired environmental attorney who practiced with Hunton & Williams. Tim’s career started with a stint at the Virginia Attorney General’s office. His term will run through 2021.  He replaces Joseph Nash.

Lou Ann Jessee-Wallace of St. Paul was also re-appointed to the SWCB. Her term will also run through 2021. 

b. Future Meeting Dates: 

•October 16-18 or November 1-2 (location TBD) 

•December 11

The Waste Management Board has not set any future meeting dates.

The Board of Game and Inland Fisheries met on August 23. There were no updates relevant to VAA members at this meeting. The Board will next meet on October 19. 

 

The State Air Pollution Control Board is taking public comment on whether to incorporate regulatory changes to meet EPA requirements for very fine particulate matter (PM2.5) should be incorporated into the state implementation plan (SIP). The regulations incorporated EPA’s PM2.5 requirements, including how to deal with the revoked 1997 PM2.5 National Ambient Air Quality Standard, and how precursors to PM 2.5 should be considered in determining attainment. The Board is accepting comments on the SIP revision through October 4. The public notice of the SIP revision is available here.

Applications for the 2018 Governor's Environmental Excellence Awards are now being accepted. For 2018, there are four categories of awards: sustainability, environmental project, land conservation and implementation of the Virginia Outdoors Plan. The sustainability award is for organizations or facilities that can document the success of their sustainability programs including a culture of sustainability, recent accomplishments relating to reducing their environmental footprint, and a commitment to future sustainability-oriented actions. The environmental project award recognizes activities or processes initiated by a facility within the past five years that reduce waste and pollution or otherwise go beyond regulatory requirements. In order to be considered for the award, a facility must have "sustained compliance" which means the facility has no criminal environmental violations in the past five years, no more than two significant environmental violations in the past three years, no unresolved notices of violation, is in compliance with any consent order or decree, and has not demonstrated any unwillingness or inability to comply with environmental protection requirements. 

The application period will end at 5 p.m. on November 9, 2017. More information is available here. 

As reported last month, the Dominion Pipeline Monitoring Coalition, the Bold Alliance, and Preserve Craig Inc. appealed DEQ’s certification of NWP 12, which relates to utility lines. Although the appeal is specific to NWP 12, the procedural flaws that the opponents allege apply equally to all of the other NWPs and thus cast a wider shadow over the legality of DEQ’s blanket certification. On August 28, the challengers voluntarily dismissed their appeal. No explanation for their decision to dismiss the challenge was given. The good news is that the withdrawal of the appeal removes any uncertainty regarding the use of Virginia’s blanket certification of the Corps’ nationwide permits. 

 

As previously reported, DEQ had several carryover items from its most recent Triennial Review of Water Quality Standards.  Among the standards being addressed via a separate carryover rulemaking process are changes to Virginia’s Bacteria, Ammonia, Cadmium and Human Health standards. These items will be published in the Virginia Register on September 18, with a public comment period running through November 17. DEQ will also hold a public hearing on October 24 at 2:00 at its Central Office.  

The Human Health Criteria that DEQ is proposing are of particular note. This affects approximately 96 parameters. There are several methodologies that can be used to determine how these criteria are adopted and implemented in Virginia. A number of industry groups will be commenting on these criteria.

Additionally, although the ammonia criteria are unlikely to have a direct impact on asphalt facilities, the DEQ compliance provisions for this criteria create an important precedent. DEQ is proposing that facilities can seek a compliance schedule for these criteria that exceeds the length of the permit term. Previously, the regulations limited compliance schedules to the term of the permit (except in the case of nutrient criteria).

 

The National Marine Fisheries Service (NMFS) has finalized its critical habitat designations for the Atlantic Sturgeon under the Endangered Species Act (ESA), effective September 18. In Virginia, NMFS designated 480 miles of aquatic habitat, including segments of the James, Mattaponi, Pamunkey, Potomac, Rappahannock, and York rivers. Critical habitat for the Chesapeake Bay DPS of Atlantic sturgeon includes: 

Localities with critical habitat designation include: Arlington, Caroline, Charles City, Chesterfield, Dinwiddie, Essex, Fairfax, Gloucester, Hanover, Henrico, Isle of Wight, King George, James City, King and Queen, King William, Lancaster, Loudoun, Middlesex, New Kent, Northumberland, Prince George, Prince William, Richmond, Spotsylvania, Stafford, Surry, Westmoreland, and York.

As a result of these designations, consultation with NMFS under Section 7 of the ESA, which requires each federal agency to insure any proposed project is not likely to "result in the destruction or adverse modification" of any species’ critical habitat, will be required for any project requiring a federal permit within these designated areas. 

DEQ has issued a procedures manual for Environmental Impact Reviews of Major State Facilities. This review process applies to state funded projects (including VDOT projects) that cost $500,000 or more. It also applies to local transportation projects costing more than $2 million. A copy of the procedures manual can be found here.