May Update

On May 4, Governor Northam announced that Deputy Secretary of Natural Resources Angela Navarro was being appointed Deputy Secretary of Commerce and Trade. Ms. Navarro had just been reappointed as the Deputy Secretary of Natural Resources January 12, 2018. The Governor has not announced a replacement for Ms. Navarro.

Along with the announcement of the reappointment of longtime DEQ Director David Paylor on April 2, the Governor appointed Trieste Lockwood as a Senior Policy Advisor at DEQ on April 13. Ms. Lockwood most recently was a Government Relations Manager at the Virginia League of Conservation Voters and previously was a lobbyist for the Virginia Conservation Network.  Given the criticisms Director Paylor faced related to coal ash management and interstate natural gas pipelines, Ms. Lockwood is likely to serve a liaison between the Governor’s office and the Director’s office in this newly created position. Typically, policy adviser positions at DEQ are not appointed by the Governor. No description of her role or duties at DEQ was provided.  

 

As discussed in detail in our last update, Governor Northam recently issued Executive Order 6 titled "Executive Order Supporting the Critical Role of the Virginia Department of Environmental Quality in Protection of Virginia’s Air, Water, and Public Health."  DEQ plans to convene stakeholder groups to conduct the required review of DEQ’s permitting, monitoring, and enforcement activities as well as the review of Trump Administration policies to determine their impacts on public health, drinking water supplies, and land and water protection. The stakeholder groups will also help DEQ evaluate ways to improve its communication with stakeholders and the public as required by the Order. The Governor’s Order is available here.  

RAP UPDATE ON REISSUANCE OF GENERAL INDUSTRIAL STORMWATER VPDES PERMIT  

DEQ held its first Regulatory Advisory Panel (RAP) meeting regarding the reissuance of the General VPDES permit for industrial stormwater dischargers on April 26.  Christine Vineski with Virginia Paving is the VAA representative on the RAP. The first meeting was largely organizational and DEQ explained its proposed changes to the General Permit and the Registration Statement.  

During the meeting, RAP members asked DEQ to clarify or provide guidance on Question 10 of the Registration Statement, including definitions for Total Area of the Facility, Area of Industrial Activity, and Total Impervious Area of Industrial Activity. DEQ asked VAA to provide feedback on the proposed language to be used in Question 9(d) of the proposed Registration statement related to asphalt paving manufacturers. The current Registration Statement is available here and reads that "For asphalt paving and roofing materials manufacturers (Sector D), indicate which outfalls (if any) receive discharges from asphalt paving and roofing emulsions production areas." Christine reports that many VAA asphalt cement producing members misread this question and listed their outfalls and were issued permits with effluent limits because it was believed they were producing asphalt emulsions. We will be working with Christine to develop revised language. If you have suggestions for clarifying this requirement, please contact Christine Vineski at 703-685-9443 or CMVineski@laneconstruct.com. RAP members also commented to DEQ on the burden and difficulty of sampling for Total Nitrogen and Total Phosphorus as part of the Chesapeake Bay TMDL Program, especially when asphalt manufacturers are not known to be major sources of these pollutants. 

The next RAP meeting will be May 17. We will continue to provide updates on the RAP’s work. 

DEQ is holding a public comment period from May 14 to June 13, 2018 to solicit comments on Virginia’s State Implementation Plan (SIP) for the 2008 ozone National Ambient Air Quality Standards (NAAQS) and whether the plan includes sufficient authority to implement the NAAQS and ensure the control of interstate transport of air pollution. Specifically, DEQ is considering revisions to the SIP to add assurances that address the "good neighbor" provisions of the CAA which require SIPs to contain sufficient authority for prohibiting emissions from activities within the state and from emitting air pollution that would contribute significantly to non-attainment in another state. DEQ’s proposal is available here. 

 

DEQ will hold public comment periods for two of its air regulations as required by Executive Order 17 (2014) which requires a periodic review of all regulations at least once every four years.  

The regulations that will be reviewed are Virginia’s New and Modified Stationary Sources regulation (9VAC5-50) and Virginia’s Air Pollution Episode Prevention regulation (9VAC5-70). 

The public comment period for the New and Modified Stationary Sources regulation (9VAC5-50) will run from May 14 to June 4, 2018. The public comment period for the Air Pollution Episode Prevention regulation will run from May 28 to June 18, 2018.  Based on the feedback received during the public comment period, DEQ will determine whether these regulations should be repealed, amended or retained in their current form. 

For both regulations, DEQ is specifically seeking public comment on whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economic performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

Details regarding the public comment period are available here and here. 

Several bills were introduced during the General Assembly session regarding how to implement the provision in the water supply provisions of the Code which states that human consumption is the highest priority use for water. Those bills had proposed reducing industrial water withdrawals to preserve the water for use by municipalities. While these bills are focused on water withdrawals, they have broader implications for economic development and the manufacturing industry.  

The bills were defeated in the session; however, DEQ recently received two letters from Delegate Danny Marshall, Chairman of the House Agriculture, Chesapeake and Natural Resources Committee, addressing this issue. The first letter requests that DEQ evaluate and report to the Committee on its interpretation of the Code provisions relating to the priorities for water usage. The second letter requests that DEQ consider developing options for prioritizing human consumption in its groundwater withdrawal permit process. The letter requests that DEQ engage stakeholders in this discussion. 

DEQ also received a letter from Delegate Keith Hodges requesting that DEQ hold an annual forum to update stakeholders on the health of the Coastal Aquifers in Eastern Virginia and how DEQ’s management actions affect the aquifer.    

Again, while these issues may not directly affect VAA members, they do have implications for businesses operating in Virginia. We will continue to track their implementation and report developments in future updates. 

DEQ has issued one new guidance document which is not relevant to VAA members regarding implementation of DEQ’s Financial Capability Regulation (9 VAC 25-650) for closure plans for private sewerage systems. If interested, the guidance is available here.    

CITIZEN BOARDS 

The Waste Management Board met on January 8, and that meeting was summarized in a previous update. Future meeting dates have not been set. 

 

The Board of Game and Inland Fisheries met on April 12. The Board will next meet on May 31. 

The State Air Control Board last met on November 16. 2018 meeting dates have not been set. 

The State Water Control Board last met on April 12. The Board’s future meeting dates are June 11, September 20 and December 13.   

The Board took several actions that may be of interest to VAA members. 

The Board approved DEQ’s request to hold a public comment period and public hearing on the proposed reissuance of the VPDES General Permit for Concrete Facilities (which expires Sept. 30, 2018).  

The Board also approved DEQ’s request for a fast track rule-making process to adopt amendments to the Aboveground Storage Tank (AST) and Pipeline Facility Financial Responsibility Requirements because DEQ believes the amendments will be non-controversial. DEQ is proposing to revise the regulations so that recent changes in the companion regulation (the Aboveground Storage Tank Regulation) excluding certain activities from regulation can be incorporated. Of interest to VAA members is a proposed exclusion for ASTs containing asphalt and asphalt compounds that are not liquid at standard conditions of temperature and pressure (60°F at 14.7 pounds per square inch absolute). Such tanks may be excluded from any requirement to install groundwater monitoring wells or groundwater protection devices or to conduct groundwater characterization studies. 

The Board also approved for adoption regulatory amendments to update the references to federal regulations that are incorporated by reference to reflect the most recent federal regulations published in the Code of Federal Regulations on July 1, 2017. The amendments include incorporation by reference of EPA’s Methods Update Rule, which changes some of the analytical testing methods approved by EPA and adds several alternative testing procedures (40 CFR Part 136). 

The Board approved a fast track rulemaking process to amend its water quality standards to include the November 2017 Chesapeake Bay Criteria Assessment Protocols addendum. The addendum provides new assessment procedures for determining short-term dissolved oxygen criteria and provides additional guidance on when a waterbody segment should be categorized as having insufficient information for benthic assessment due to statistical uncertainty. 

The Board held a special public forum to hear public comments on issues related to the increase in the size and quantity of chicken houses on the Eastern Shore as well as a public forum regarding the Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP). 

Finally, the Board issued a request for public comments related to the MVP and the ACP and whether the U.S. Army Corps of Engineers verification of the use of a Nationwide Permit 12 (NWP 12) and its conditions sufficiently addresses individual wetland and stream crossings. The Board is seeking technical comments regarding: 

1) the sufficiency of the Corps NWP 12 permit's general and regional conditions, as they relate to specific wetland or stream crossing(s);

2) the sufficiency of the Corps NWP 12 permit authorization for each project, as related to specific wetland or stream crossing(s); and/or

3) the sufficiency of the Commonwealth's § 401 water quality certification of NWP 12, as related to specific wetland or stream crossing(s).

The notice is available here and comment will be accepted through May 30, 2018. 

a.) EPCRA TRI Reporting. Members subject to TRI reporting to DEQ and EPA are reminded of the upcoming July 1 reporting deadline.  More information is available on DEQ’s TRI page.