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August Update

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CITIZEN BOARDS
The State Water Control Board met on July 19 at DEQ’s Piedmont Regional Office. This was a lengthy and contentious meeting, as described in more detail below. Updates relevant to VAA Members follow. 

a. Final Adoption of Underground Storage Tank Regulations Revisions 

The Board adopted final amendments to Virginia’s underground storage tank regulations. These amendments are needed to update Virginia’s regulations to be consistent with federal regulations. The amendments include revisions to secondary containment requirements for new and replaced tanks and piping, notification requirements for operational changes, revisions to periodic operation, inspection and maintenance requirements for UST systems, and the inclusion of new release prevention and detection technologies. There are also some updates to the financial assurance provisions. VAA members with USTs may be affected by these proposed revisions. 

b. Final Adoption of General VPDES Permit for Vehicle Wash Facilities and Laundry Facilities 

DEQ presented for the Board’s final approval revisions to the VPDES General Permit Regulation for Vehicle Wash and Laundry Facilities (9 VAC 25-194). This general permit only applies where a facility does not already have an individual VPDES permit. Additionally, staff noted that it does not apply to paving equipment cleaning, and thus this general permit does not affect VAA members.   

c. General Permit Reissuance Proposals

DEQ staff requested that the Board authorize a public comment period and hearing for the reissuance of two General VPDES permit for: (1) Discharges from Petroleum Contaminated Sites, Groundwater Remediation and Hydrostatic Tests, and (2) Noncontact Cooling Water Discharges of 50,000 Gallons per Day or Less. The Board approved this request. 

d. Proposed Public Participation Guidelines Revisions 

The Board considered 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 authorized DEQ to promulgate the regulations using the fast track process, which allows DEQ to speed up the promulgation process for certain regulatory actions. 

e. Enforcement Actions

Final negotiated consent orders are presented to the Board for approval. This is typically a perfunctory exercise, with the Board endorsing orders that DEQ staff recommend after reaching a negotiated agreement with the regulated entity.  However, the current Board has taken a heightened interest in enforcement cases and at this Board meeting rejected a DEQ proposed consent order, citing the need for higher civil charges.

DEQ presented a proposed consent order for Tyson’s Accomack County facility. This facility has experienced several violations over the past few years.  The consent order was originally proposed in December 2016, but was modified due to public comments, revisions to the corrective action plan, and discovery of an additional violation. The revised proposed consent order included a larger civil charge ($26,160.00 as compared to the original civil charge of $16,150) and a revised corrective action plan.  

The Board asked a number of detailed questions about the operation at the facility and the proposed order itself. The Board also focused on the civil charge, asking whether the penalty could be increased based on culpability or a bad actor provision or the profitability of this violation. The Board then discussed what would happen if a consent order is not approved by the Board. Director Paylor said the Board would need to give DEQ instructions on what it would take to get Board approval and reminded the Board that this a consent process. If the issue is the amount of the penalty, there is not much DEQ can do administratively. 

One question the Board asked is that DEQ compare the amount of penalties that could be achieved through a judicial proceeding ($32,500 per day per violation) to the amount proposed in the consent order.  Director Paylor responded that the guidelines and matrix DEQ developed assist it in determining the appropriate penalty based on severity and culpability. He said that the Board should get advice from counsel outside of the meeting on the likely success of obtaining penalties in the range of $32,500 per day.   

The Board then voted to reject the consent order and instructed staff to seek a higher penalty and require specific dates and a timeline for plans and goals for each corrective action.   

While this enforcement action does not directly affect VAA members, it does signal that the Board may take a more active role in reviewing consent orders, and pushing for greater civil charges, particularly for entities with multiple violations.  

f. Heightened Presence of Citizen Activists at Board Meeting
 
g. Future Meeting Dates: 

October 16-18 or November 1-2 (location TBD) 
December 11

The State Air Control Board last met on June 22.  There were no noteworthy actions affecting VAA members at the meeting. The agenda for the September 21 meeting has not been released. 

a. Future Meeting Dates: 

September 21
December 7  

b. New Board Members 

Governor McAuliffe recently announced two new appointments to the State Air Control Board: 

Roy A. Hoagland of Midlothian, Principal, HOPE Impacts, LLC
Richard D. Langford of Blacksburg, retired chemical engineer and Owner, Langford Accounting LLC

Mr. Hoagland formerly served as the director of the Chesapeake Bay Foundation in Virginia. Mr. Langford formerly served on the State Water Control Board.

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

The Board of Game and Inland Fisheries will meet on August 23. No agenda has been posted. The Board also plans to meet on October 19. 
 
CLEAN AIR ACT PERMIT FEE INCREASES
As previously reported, DEQ has proposed significant increases to the permitting and maintenance fees for Title V permits as well as other air permits. These increases are the result of legislation passed in the 2012 General Assembly, with follow up legislation in the 2016 General Assembly. The State Air Pollution Control Board approved the proposed fees at their April 2017 meeting. The proposed fees were then published in a May Virginia Register.  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. Originally, fees were based more on emissions, but as emissions have decreased (a good thing), the funding for the program has similarly declined. The consequence of DEQ not being able to fund the program is that EPA would take it over. Under the proposed regulations the fee increases would be effective for 2018. The public comment period on this proposal ran through July 28. DEQ will now consider the comments it received and bring a final regulatory package to the State Air Pollution Control Board at a future meeting. 

"CARRYOVER" WATER QUALITY STANDARDS REVISIONS TO BE PUBLISHED FOR PUBLIC COMMENT 
DEQ had several carryover items from its 2016 Triennial Review of Water Quality Standards. Those items include changes to Virginia’s Bacteria, Ammonia, Cadmium and Human Health standards. These criteria changes were carried over due to the need for DEQ to further address issues related to each of the criteria. For bacteria, DEQ needed to determine which assumed illness rate to use and the geographic application for coastal waters. For Ammonia, DEQ needed to consider implementation flexibilities given the increased stringency of the proposed new criteria. For Cadmium, DEQ needed to review EPA’s recently revised criteria which reflect data for a number of new species and genera. Finally, for the human health criteria, EPA issued 94 revised recommended criteria for chemical pollutants in June 2015 and DEQ needed to evaluate these revised criteria.  

DEQ asked the State Water Control Board to authorize DEQ to hold a public comment period for these proposed revisions. The Board approved this request at its December 2016 meeting. However, before these proposed revisions can be published in the Virginia Register for public comment, Virginia’s administrative process laws require the Governor’s office to review and approve the proposed regulations.  There is no time period on this Executive Branch review.  On August 4, the Governor completed his review and the proposed revisions will be published in the Virginia Register shortly. 
 
NEW GUIDANCE DOCUMENTS 
DEQ issued new guidance regarding its Pollution Response Program (PREP) - "Pollution Response Program – Base Manual" (PREP-2017-01).  This document provides DEQ staff with guidance on responding to reports of pollution and conducting investigation of pollution incidents, including the processes related to initiating a pollution report and conducting an initial investigation, all the way through cost recovery for response costs.  This is a valuable resource for VAA Member environmental staff to use as a guide and VAA Members should review this guide to ensure that their own pollution response policies are consistent with DEQ’s Program. 

The guidance shows that from 2012 to 2014 the majority of PREP cases were the result of water or petroleum issues. The guidance replaces a previous version published by DEQ in 2005.  

The guidance is available here
 
DEQ ISSUES DRAFT 2016 305(b)/303(d) WATER QUALITY ASSESSMENT INTEGRATED REPORT 
Section 305(b) of the Clean Water Act requires Virginia to prepare and submit a Watershed Assessment Report to EPA biennially describing the quality of the state’s waters, including an analysis of the extent to which state waters meet water quality standards, provide for the protection and propagation of a balanced population of shellfish, fish, and wildlife and allow for recreational activity, an estimate of the environmental impacts, and the economic and social costs and benefits of complying with the CWA. The results of this 305(b) Report are then used by the state to compile a list of the state’s impaired waters, known as the 303(d) list. 

On August 7, DEQ issued the Draft 2016 305(b)/303(d) Water Quality Assessment Integrated Report addressing water quality conditions in Virginia from January 1, 2009, through December 31, 2014.  

VAA Members with VPDES or other discharges to state waters may want to review the section of the report specific to the waterbody to which they discharge. 303(d) listings are generally used as a basis for future Total Maximum Daily Load (TMDL) development. In the Report, DEQ also outlines a new prioritization plan for future TMDL development based on EPA’s 303(d) Program Vision under which Virginia will prioritize TMDL development over a six-year time frame (2016-2022). DEQ is currently focusing on aquatic life impairments for watersheds where TMDL development could also provide additional benefits to aquatic ecosystems. DEQ’s current TMDL Program Priorities list by county is available here

DEQ will present the findings of the Report via webinar on August 24, 2017 from 10:00 am to 12:00 noon EDT. Interested persons can register here

DEQ is also accepting public comments on this report through September 6. Comments should be submitted to Sandra Mueller.  

The Report can be downloaded from DEQ’s page here

 

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