Fourth Quarter Environmental Update

All Quarterly updates provided by Troutman Sanders as environmental counsel to VAA.

INCREASED LOCAL INTEREST IN REGULATING LEACHATE FROM RECLAIMED ASPHALT PAVEMENT

Members have reported an increased interest by localities in regulating leachate from reclaimed asphalt pavement (RAP) stockpiles. As this issue develops, it would be helpful to know where this issue is arising. If members are contacted by local agencies or hear of their efforts to regulate RAP leachate, please bring it to our attention.

2020 GENERAL ASSEMBLY FAST APPROACHING, GOVERNOR SEEKING SIGNIFICANT FUNDING INCREASE FOR ENVIRONMENTAL PROGRAMS

The 2020 General Assembly session convenes on Wednesday, January 8, 2020 and ends on March 7, 2020. Crossover (the date by which a bill must pass its house of origin) is February 11, 2020. Pre-filing of bills has commenced and will continue through January 8, 2020. As previewed in our November Environmental Committee meeting, we are expecting significant environmental legislation for all media areas as well as related to enforcement. We will provide an update on legislation of interest by mid-session. Governor Northam recently announced his intentions to include $733 million in environmental funding in his forthcoming proposed budget. Broadly the funding will support clean energy including offshore wind, as well as climate change and Chesapeake Bay restoration efforts. The Governor noted that $2.7 million in funding will go to environmental justice and public outreach efforts. We anticipate that a meaningful portion of the funding will also support priorities identified in Executive Order 6.

GOVERNOR NORTHAM NAMES NEW CITIZEN BOARD MEMBERS

On September 20 and October 25, 2019, Governor Northam made six appointments to the Virginia’s environmental citizen boards.

On the State Water Control Board, Governor Northam appointed:

  • Karen T. Campblin of Fairfax, Founder, ktcPLAN, LLC
  • of Norfolk, Regional Director, Ports and Intermodal, Dewberry

After the Governor’s appointment of Karen Campblin, she withdrew from consideration and is not on the Board. Ms. Campblin was slated to replace Board Member Nissa Dean whose term expired in June. Ms. Dean will now remain on the Board until the Governor appoints a new replacement. This is a reappointment for Heather Wood whose four-year term will expire in June 2023.

On the State Air Pollution Control Board, Governor Northam appointed Staci Rijal of Alexandria. The new Board member replaces Nicole M. Rovner, whose term expired in June. The new Board member will also serve a four-year term expiring in June 2023.

On the Board of Game and Inland Fisheries, Governor Northam appointed:

  • Catherine H. Claiborne of Richmond, Senior Vice President, Universal Leaf Tobacco Company
  • Tom Sadler of Verona, Deputy Director, Marine Fish Conservation Network
  • W. Frank Adams of King William County, Chief, Upper Mattaponi Indian Tribe

While this is a reappointment for Catherine H. Claiborne, the other new Board members replace outgoing members Nicole Butterworth and H. S. Caudill.

CITIZEN BOARDS

The State Water Control Board met on December 13, 2019. The Board focused its discussion on approval of 45 poultry farm groundwater withdrawal permits in Accomack County and on proposed revisions to the nonpoint source nutrient credit trading program. These and other agenda items were not relevant to VAA members. The Board has not yet set 2020 meeting dates.

The Waste Management Board met on December 9, 2019. No agenda items were relevant to VAA members. Future meeting dates have not been announced.

The Board of Game and Inland Fisheries met on August 22, 2019 and October 24, 2019. No agenda items were relevant to VAA members. The Board will next meet on January 23, 2020 and no agenda for that meeting has yet been posted.

The State Air Control Board met on September 20, 2019 and focused on public engagement and environmental justice issues. The Board clarified that its public engagement committee is an ongoing committee that should be meeting regularly. The committee is considering recommendations for enhancing public involvement in the permitting and regulatory actions of the Board. The committee did not set specific goals or timelines but indicated it would continue discussing these issues in its future meetings.

The Board also met on December 6, 2019. During that meeting, the Board again heard from the public engagement committee and adopted several regulatory amendments that relate to New Source Review permitting in ozone nonattainment areas. The Board did not set its next meeting date.

DEQ SELECTS ITS ENVIRONMENTAL JUSTICE CONSULTANT

In September 2019, DEQ announced that it contracted with Charlottesville-based Skeo Solutions to conduct an environmental justice study to guide DEQ’s environmental programs. Skeo Solutions consults with federal, state, and non-profit actors in areas of environmental planning and community engagement. Skeo Solutions will be interviewing various stakeholders in Virginia and is expected to recommend a range of available and legally-permissible options to incorporate environmental justice into DEQ’s water, waste, and air programs. The recommendations that flow from this consultant’s work may ultimately impact if and how VAA members are required to consider environmental justice in permitting and siting for future projects. An important component of this will be how environmental justice is addressed in permit renewals for existing facilities. We will continue to monitor the consultant’s work and report back to the membership.

DEQ ISSUES FINAL CLEAN WATER ACT SECTION 303(D)/305(B) WATER QUALITY ASSESSMENT INTEGRATED REPORT

DEQ recently finalized its 2018 303(d)/305(b) Water Quality Assessment Integrated Report (Final Report). This report is relevant to VAA members with Virginia Pollutant Discharge Elimination System (VPDES) permits because it shows DEQ’s current assessment for the waterbody to which you may discharge. If the report identifies a waterbody as impaired, DEQ is then obligated to formulate a pollution diet for the pollutant(s) causing the impairment called a total maximum daily load (TMDL). The Final Report analyzes whether Virginia’s waters meet water quality standards for designated uses. The Final Report includes new listings, primarily for benthics, dissolved oxygen, and chlorophyll a impairments. The Final Report also includes additional information on DEQ’s prioritization of TMDL development through 2022. DEQ notes that it has developed 941 TMDLs to date. Regarding TMDL development priorities, the Final Report notes that the priorities are the same as DEQ’s existing TMDL Program Priorities. However, DEQ indicates it is considering revising its priorities, but will do so through a separate notice and comment process. The current TMDL development priorities focus on impairments due to: 1) low dissolved oxygen concentrations, 2) high or low pH levels, 3) high temperatures in cold water streams, and 4) impairments to the benthic macroinvertebrate communities. EPA approved the Final Report on September 16.

The Final Report is available here. Members with CWA discharge permits should review the Report for the specific waterbodies to which your facilities discharge for any impairment changes.

NEW GUIDANCE DOCUMENTS

On December 13, 2019, DEQ posted a proposed revision to its 1992 Guidance Memo No. 92-006, Authorization to Issue Certifications for Tax Exemptions. The Memo includes recommended procedures for processing tax exemption certification requests for wastewater pollution control equipment and facilities. DEQ explains that the proposed revision aligns the Division of Water Permitting procedures with the procedures that govern other media. The proposed document clarifies that only equipment and materials used primarily to control or abate pollution are eligible for tax credits. Other equipment, including sidewalks and pavement, as well as chemicals used to control/abate pollution, are not tax-exempt. Further, DEQ proposes that equipment and facilities become eligible for tax-exempt status only after they have been constructed. Lastly, DEQ proposes that the requestor must provide an itemized listing of pollution control equipment and materials with every certification request, and the percentage of use of equipment can no longer be used to determine eligibility. The proposed revision is open for public comment until January 22, 2020 and is available here.

On December 4, 2019, DEQ posted a proposed revision of its 2016 Virginia Environmental Excellence Program (VEEP) Operations Manual. VEEP recognizes facilities that have demonstrated commitment to environmental performance. DEQ’s proposed changes include changing its several regional points of contact on compliance matters, clarifying that VEEP’s online reporting system www.veeponline.org should be updated and ready to receive reports by February 2020, and makes several other editorial changes. The proposed revision will open for public comment once it is published in the Virginia Register on January 1, 2020; public comment will end on February 5, 2020. The proposed manual is available here.

On December 16, 2019, DEQ posted a revised chapter of its Storage Tank Program Compliance Manual, Volume V- AST Guidance. The purpose of the revision is to combine all available regulatory guidance documents into one reference manual for DEQ staff, to account for recent regulatory changes, and to specifically identify performance standards for tanks located in the City of Fairfax. This guidance completes the update and re-issuance of all volumes included in the Manual. The revised chapter is available here.

On November 18, 2019, DEQ posted a revised Manual for Processing Requests Pursuant to the Virginia Freedom of Information Act (FOIA). The Manual replaces the October 2014 Agency Policy Statement No. 6-2014 on this topic. The new Manual is issued for use by both the general public and DEQ staff handling a FOIA request. The Manual differs from the previous Policy Statement in that it appears to be more public-focused and practical. For example, it first outlines detailed procedures for filing a FOIA request, then discusses options for DEQ staff to respond to the request, and only then provides a list of documents that can be excluded from DEQ’s response.

Significant changes from the previous document include: reiterating DEQ’s preference for electronic FOIA requests and DEQ responses; releasing records that cost DEQ less than $25.00 to process (in copying and staff time) without billing a requestor, where the 2014 Policy Statement established a billing threshold of $10.00 or more; and slightly increasing the DEQ FOIA processing fees for staff time. The Manual became effective on November 14, 2019 and is available here.

On November 25, 2019, DEQ posted a proposed revision to its Virginia Water Protection (VWP) Permit and Compliance Staff Manual. The Manual governs issuance of permits for projects involving surface water withdrawals and is routinely updated to incorporate statutory amendments and established permit issuance practices. The proposed revision is open for public comment until December 24, 2019 and is available here.

UPCOMING REGULATORY DEADLINES.

  1. 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.
  2. 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. The Compliance Certification form is available from DEQ here.
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