July Environmental Update

The Waste Management Board met on June 20.  The Board approved changes to Virginia’s regulatory which needed to be consistent with federal regulations. Included in these changes was an update to the regulations governing the transportation of hazardous materials.  The Board has not set future meeting dates. 

The State Water Control Board met on June 27. The Board considered a Virginia Pollution Abatement (VPA) permit for the land application of biosolids; a VPDES permit for dewatering of a coal ash pond; and changes to Waste Load Allocations for several TMDLs.  Additionally, DEQ reviewed changes to its Water Quality Management Planning Regulation (9VAC25-720) to amend the Waste Load Allocations for several different water bodies.  The proposed changes were corrections to stream names; removal of duplicate WLAs; and updates to WLAs.  The Board will hold a special meeting on July 28 to consider a specific VPA Permit.  The next regular Board meeting is scheduled for September 22.  

2. DEQ Opens Public Comment Period on 2016 Water Quality Assessment Guidance. 

In late June DEQ published a draft of its 2016 water quality assessment guidance.  This guidance is used to develop the 2016 305(b) and 303(d) Water Quality Assessment and Impaired Waters Report.  Comments on the guidance will be accepted through July 27.

The draft guidance incorporates Integrated Reporting guidance developed by EPA in 2004 (and updated periodically, most recently in November 2015). The majority of the modifications relate to how to assess swamp waters as part of the biannual evaluation.     

As previously reported, DEQ is in the process of updating its enforcement manual, with those changes principally focusing on increasing penalties.   The DEQ changes will likely be consistent in size with EPA penalty adjustments resulting from Congress’ authorization of a penalty escalation pursuant to the Civil Penalties Inflation Adjustment Improvement Act (CPIA) in November of last year.  A memorandum issued in February 2016 authorized EPA to have a $93,750 ceiling - 150% over the current ceiling.  EPA is expected to publish interim final rules for penalty adjustments by July 1 with those rules becoming effective on August 1.  After reviewing EPA’s changes, DEQ will propose its own changes to its enforcement manual.  Those changes are expected to be made available for public comment.    

Governor McAuliffe issued Executive Order 57 on June 28 directing Virginia Secretary of Natural Resources Molly Ward to convene a workgroup and recommend concrete steps to reduce carbon pollution from Virginia’s power plants. The workgroup is charged with evaluating options within Virginia’s current authority to address carbon pollution.  The workgroup’s work is to be completed by April 30, 2017.  Its recommendations will be reviewed by the Secretary, and the Secretary is to provide the Governor with a report on those recommendations by May 31, 2017.

5. JLARC to Publish Study on Water Resource Management on October 11. 

Legislation enacted during the 2015 General Assembly session required the Joint Legislative Audit and Review Commission ("JLARC") to study the effectiveness of Virginia’s water resource planning and management.  The study is focused on DEQ’s planning and permitting programs relating to surface water and groundwater quantity.   The JLARC study will be published on October 11, 2016 and presented to the Commission in a public meeting that same day.   

 

As previously reported, EPA has proposed updates to its National Pollutant Discharge Elimination System (NPDES) regulations.  Public comment is being accepted on the proposed updated through July 18.  Once these changes are made at the federal level they must then be adopted at the state level.  DEQ is currently evaluating the proposal to determine whether to comment.

 

 

The Department of Game and Inland Fisheries recently proposed regulatory changes to its endangered and threatened species program to ensure that the regulations reflect the most recent federal species listings.  DGIF is taking written comments on these proposed changes through August 5.  It will also accept oral comments at its August 18 meeting.  

Troutman Sanders is hosting a free program on the Endangered Species Act on September 13.  The meeting will be held at Troutman’s Richmond offices.  Topics will include ESA impacts on project development and permitting.  Please contact Andrea or Patrick if you are interested in attending and we will send you an invitation.

Following several high profile examples of chemical contamination of drinking water sources, the General Assembly enacted legislation in 2015 requiring DEQ, the State Health Commissioner, and the State Coordinator of Emergency Management to evaluate chemical storage requirement in Virginia.  The results of the evaluation are due by December 1, 2016 of this year. A component of the evaluation is whether there are any gaps in chemical storage standards that need to be corrected or addressed.  DEQ is the lead drafter of the required report.  It is not expected that the report will be made available prior to December 1.  

DOJ recently announced the start of the Worker Endangerment Initiative.  Significantly, primary responsibility for investigating and prosecuting workplace violations will now be handled by the Department of Justice’s Environmental and Natural Resources Division’s Environmental Crimes Section (ECS).  Such violations were previously handled by the Occupational Safety and Health Administration, Mine Safety and Health Administration, and the U.S. Department of Labor’s Wage and Hour Division.  Under the new initiative, DOJ prosecutors are encouraged to combine prosecutions of workplace violations and environmental crimes.  Centralizing workplace safety enforcement in ECS demonstrates the possibility of increased exposure for defendants when workplace safety issues arise alongside environmental violations.

Facilities subject to an Industrial Stormwater VPDES permit were required to submit their second Semi-Annual DMR Submission by July 10th.  If the data in the two DMRs demonstrate the potential exceedance of the loading value in the permit, then a Chesapeake Bay TMDL Action Plan must be submitted to DEQ for approval by September 28, 2016.  Once approved, an annual report on the implementation of that plan must be submitted to DEQ by June 30, 2017.  The goal is to ensure that the permittee achieves the required phosphorus, nitrogen and total suspended solids reductions by June 30, 2024.