December Update

Governor-Elect Ralph Northam has announced Matt Strickler as his Secretary of Natural Resources. Matt currently serves as the Senior Policy Adviser to the House Committee on Natural Resources under Democratic Ranking Member Raúl Grijalva (AZ) where he covers energy, public lands, fisheries, and wildlife issues as well as matters related to the National Environmental Policy Act. Matt was previously a Legislative Assistant to Governor-Elect Northam for nearly four years when Northam was a Virginia Senator. Matt graduated from Washington and Lee University and holds master’s degrees in public policy from the College of William and Mary and marine science from the Virginia Institute of Marine Science. 

The State Air Control Board met November 16 in the Capitol Building. 2018 meeting dates have not been set.  The Board addressed the following items: 

The Board approved a proposal from DEQ to incorporate by reference newly promulgated federal New Source Performance Standards (NSPS), National Emission Standards for Hazardous Air Pollutants (NESHAP), and national emission standards for hazardous air pollutants for source categories (Maximum Achievable Control Technology, or MACT) published July 1, 2017.  This is a common practice of the Board to update references in state regulations and these updates are required for Virginia to retain authority to enforce these standards. 

The Board unanimously approved DEQ’s request to hold a public comment regarding the proposed regulations creating a CO2 Trading Program required by Governor McAuliffe’s Executive Directive 11. The language of the proposed regulations is available here. 

This cap-and-trade program, as proposed by DEQ, would only apply to large fossil fuel-fired electricity generators, primarily electric utilities. However, during the Board’s deliberations, the Board narrowly (4-3) voted down a proposed amendment that would have removed an exemption from coverage under the regulations for fossil fuel power generating units owned by individual facilities such as those at asphalt plants or other manufacturing operations used primarily to power the facility.  Although the amendment was voted down, the Board asked that DEQ include in its preamble to the proposed rule a request that comments address the scope of the applicability of the program. The Board also requested that DEQ include language in the preamble expressing an intention to continue the program beyond 2030.  

Given the Board’s unanimous vote in favor of DEQ’s request to publish the proposed regulations for public comment, DEQ will now submit the regulatory package to the Governor’s office for executive review (including review by the Department of Planning and Budget, the Secretary of Natural Resources, and the Governor’s office). Once this review is complete, DEQ will publish the proposed package in the Virginia Register. At that time, a 60-day public comment period will commence.  

The State Water Control Board met on December 6-7 and December 11-12.   2018 meeting dates have not been set.  The primary purpose of these extended Board meetings was to hear public comment and vote on the Clean Water Act (CWA) Section 401 Water Quality Certifications for the Mountain Valley Pipeline and the Atlantic Coast Pipeline.  

On December 7, the Board granted the 401 Water Quality Certification for the Mountain Valley Pipeline in a 5-2 vote. 

On December 12, the Board granted the 401 Water Quality Certification for the Atlantic Coast Pipeline in a 4-3 vote but deferred the effective date of the certification until DEQ has reviewed and approved various pending plans including stormwater management and erosion and sediment control plans for the pipeline.  DEQ will then provide a report to the Board at which time the Board may take further action.  

The Board also proceeded to hear several other items.  Those with potential relevance to VAA members are described briefly below. 

The Board approved revisions to, and the re-issuance of, the General Virginia Pollutant Discharge Elimination System (VPDES) Permit for Potable Water Treatment Plants.  The proposed revisions were minor and include language allowing the electronic submission of registration statements and clarifying inspection requirements.  

The Board approved revisions to, and the re-issuance of, the VPDES General Permit for Non-Contact Cooling Water Discharges of 50,000 Gallons Per Day or Less.  Only minor revisions were proposed to this general permit to address comments from EPA Region 3 asking Virginia to make its authorization to discharge, registration statement, and general conditions more closely align with the boilerplate permit language used by EPA.  The permit also added a requirement that permittees notify a Municipal Separate Storm Sewer System (MS4) owner of the existence of the discharge under this permit at the time a permittee registers for the general permit. 

The Board approved revisions to, and the re-issuance of, the VPDES General Permit for Discharges of Petroleum Contaminated Sites, Groundwater Remediation and Hydrostatic Tests. The revisions to the general permit add "associated distribution equipment" as components that may be hydrostatically tested under the permit, and requiring that hydrostatic discharges and dewatering projects must control the volume and velocity of the discharge to minimize erosion at outlets and downstream bank erosion.     

The Board authorized DEQ to conduct a public comment period on proposed revisions to the General VPDES Permit for Discharges of Stormwater from Small MS4s. The proposal adds a definition of the "MS4 Regulated Service Area" to clarify what areas are regulated for permitting purposes. The package also addresses comments raised by a 16-member technical advisory committee, including the addition of language establishing a standard for demonstrating progress toward meeting water quality requirements: permittees must implement best management practices to the "maximum extent practicable."  Additional revisions include a requirement to make Total Maximum Daily Load (TMDL) Action Plans available for public comment, revisions to comply with EPA’s Small MS4 remand rule which requires MS4 permits to include clear, specific, and measurable permit conditions and BMPs and strategies for implementation of Minimum Control Measures. 

The Board accepted DEQ staff’s recommendation that the Board not proceed with a rulemaking to revise Virginia’s Selenium water quality criteria until EPA’s four associated Technical Support Document are finalized.  

The Waste Management Board did not meet in November. We understand that the Board will meet on January 8 to adopt EPA’s Hazardous Waste Generator Improvement Rule. The federal rule includes significant (and overall helpful) revisions and clarifications to hazardous waste generator requirements. We will provide a summary of the rule in our next update, when we report on the Board’s review and action on it.

The Board of Game and Inland Fisheries will next meet on January 17, 2018. No agenda has been posted. 

DEQ has issued one new guidance document with potential relevance to VAA members: 

DEQ has reissued its "Implementation of the Reissued Virginia Pollutant Discharge Elimination System (VPDES) General Permit for Vehicle Wash Facilities and Laundry Facilities" guidance. This guidance document replaces a 2002 version to account for changes approved by State Water Control Board this summer. The guidance addresses additional types of vehicle washing now covered by the Permit. Changes from the previous version include the addition of maintenance and earth moving construction equipment washing. There is also a new requirement for permittees to notify the Municipal Separate Storm Sewer System (MS4) owners before getting coverage under the general permit if their discharge is into the MS4. Finally, there is a new requirement for dischargers of vehicle wash water directly to a stormwater drain to provide inlet protection measures in addition to meeting all other requirements of the permit.

The guidance is available here. 

While not a state update, we want to make VAA members aware of recent penalty increases enacted by the U.S. Army Corps of Engineers. The increases are the result of the Federal Civil Penalties Inflation Adjustment (FCPIA) Act Improvement Act, enacted in 2015. The FCPIA required a one-time catch up adjustment of penalties for inflation, followed by annual updates.  Because the Corps never made the initial catch up adjustment, it combined the catch-up adjustment with the 2017 inflation adjustment, which resulted in significantly increased penalties. For example, the maximum penalty for wetlands permitting and stormwater and erosion and sediment control violations increased from $37,500 per day to $52,414 per day. 

The new penalty amounts went into effect December 12, 2017. The Corps plans to publish subsequent annual adjustments by January 15 each year. The Corps’ Federal Register notice further explaining the increases is available here. 

a) Emergency Planning and Community Right to Know Act (EPCRA) reporting. Members subject to EPCRA Tier II are reminded that the reporting deadline is March 1. More information is available on DEQ’s EPCRA page. 

b) Clean Air Act Title V Compliance Certification Reporting. VAA members subject to Clean Air Act (CAA) Title V Compliance Certification Reporting are reminded of the upcoming March 1 deadline to submit your facility’s Annual Compliance Certification. More information on this reporting requirement is available from DEQ here.