April 2016 Monthly Update

There are two issues of particular interest to VAA members. First, the new general permits, as proposed by DEQ, will have fixed termination dates. In the past, if a project sought coverage under the general permit, the term of the permit would be set based on the project. In the new permit and regulation, the general permits will have a firm end date. Thus, it is possible that projects initiated shortly before the termination date that will not be completed before the termination date would be required to obtain an individual permit. DEQ has agreed to work with stakeholders to explore other transition options. We will track this process and include updates in our monthly reports.

 

Second, the Virginia Water Protection General Permit for Linear Transportation Projects (9VAC25-680) was included among the general VPDES permits reissued. This permit covers roadway construction and during the meeting, DEQ indicated that it has initiated discussions with VDOT to amend the Memorandum of Understanding between VDOT and DEQ regarding VWP permitting. One comment arising prior to the Board’s approval of the general permits was a request that permit applicants who have received a permit but have not commenced construction should not be required to submit biannual "construction status" updates to DEQ prior to commencing construction. The Board did not change the general permit in response to this comment. Information regarding the meeting, including DEQ’s response to public comments is available here.

 

The State Water Control Board’s next meetings are scheduled for June 27, September 22 and December 12.

 

Air Pollution Control Board. The Air Pollution Control Board met on March 18. At that meeting, two regulatory changes were adopted. Both changes were required by federal law. The first was the adoption of EPA’s updated eight hour standard for ozone of 0.70 parts per million.

The second was the removal of the affirmative defense for emission exceedances that occur as a result of malfunctions. DEQ has said that even though the affirmative defense language has been removed as required by EPA, DEQ will continue to use enforcement discretion for exceedances that occur due to legitimate malfunctions. However, companies should ensure that they maintain adequate documentation of malfunction events and the responses taken to those situations.

The Air Pollution Control Board will also meet on June 17, September 9 and December 5.

 

Stormwater - Guidance. During the 2016 General Assembly session, legislation was enacted streamlining and consolidating the stormwater and erosion and sediment control requirements. That legislation becomes effective in 2017, as DEQ needs time to make some regulatory and internal changes to implement the legislation.

 

On April 1, 2016, DEQ issued new guidance governing its compliance inspection strategy for construction stormwater permittees for fiscal year 2016. The guidance is available here. It includes DEQ’s strategy for conducting inspections as well as inspection checklists.

 

E-Reporting. Last year, EPA adopted an electronic reporting rule that requires states to collect all water-related permitting and compliance documentation electronically. The information will then be provided to EPA, which will post it all online. While DEQ has an e-DMR program in place, it is voluntary. The EPA rule requires that it be mandatory. As the federal e-reporting rule is phased in, it will eventually include all VPDES documentation, including pretreatment permitting documentation, five day notice letters, notices of intent and notices of termination associated with stormwater permits, and all other reports required under the VPDES permitting program. At a presentation at the Environment Virginia conference, Melanie Davenport of DEQ stated that DEQ is looking at regulatory changes needed to implement the federal rule. DEQ plans to initiate that process toward the end of 2016.

 

Chemical Storage. During the 2015 General Assembly session, DEQ, the Department of Health, and the Department of Emergency Management were tasked with evaluating chemical storage requirements in Virginia with an eye toward determining whether additional legislation or regulation is needed. That report is due to the General Assembly on December 1, 2016. DEQ has indicated that although this evaluation is being conducted by DEQ staff, they are willing to consider information and suggestions from stakeholders. It is unclear whether a draft of the report will be available for public comment in advance of its submittal to the General Assembly.

Underground Storage Tanks. EPA has updated its UST regulations. DEQ plans to initiate a regulatory advisory panel to help develop regulations implementing the EPA requirements. DEQ expects this to take place before the end of 2016.

Enforcement. DEQ is currently revising Chapters 2 (general enforcement procedures) and 4 (civil penalties) of the Enforcement Manual. The changes will be available for public comment in the next several months.

Endangered Species Act – Map of Known Bat Habitat. The Department of Game and Inland Fisheries listed the little brown bat and the tri-colored bat as endangered. Shortly thereafter, DGIF issued guidance "Best Management Practices for Conservation of Little Brown Bats and Tri-colored Bats" that outline recommended precautions to avoid impacts on these newly listed species. The guidance document is available here. More recently, DGIF has published an interactive map of known hibernacula for these species and the recommended buffer zones for projects that may impact these hibernacula. The map, which will be updated as DGIF continues to identify known hibernacula and maternity roosts, is available here.