All Quarterly updates provided by Troutman Sanders as environmental counsel to VAA.
The State Water Control Board met on June 27, 2019. The Board approved amendments to the Virginia Pollutant Discharge Elimination System (VPDES) regulations. Of particular note for VAA members, the Board adopted changes allowing compliance schedules in VPDES permits to extend beyond the 5-year permit term. 9VAC25-31-250. This change is consistent with EPA regulations and was primarily driven by the need for greater flexibility in meeting more stringent ammonia criteria.
The Board also approved amendments to the Chlorophyll-a Criteria for the Tidal James River in 9VAC25-260-310 (bb) based on a recent study; to the Virginia Water Protection Permit Program regulations (regarding compensatory mitigation, 9VAC25-210 et seq.) to incorporate legislative changes; and approved a technical amendment to the Ground Water Withdrawal regulations (9VAC25-610 et seq.) to correct a citation reference.
Finally, the Board approved three TMDL reports for inclusion into the Water Quality Management Plan and adopted twenty new and three revised wasteload allocations, including for Benthic TMDL for the Blacks Run and Cooks Creek Watershed Located in the City of Harrisonburg and Rockingham County, Bacteria and Sediment TMDL for the James River and Tributaries Located in Botetourt and Craig Counties Virginia, and Bacteria TMDL for the Rappahannock River and Tributaries Located in Caroline, Essex, King George, Richmond, and Westmoreland Counties Virginia.
The Board also recently met on September 6, 2019, where it approved a report on the Bacteria TMDL for the Bullpasture River in Highland County and adopted the corresponding wasteload allocation.
The Board’s next meet is scheduled for December 13, 2019. No agenda for that meeting has yet been posted. The Board also noted a possibility of convening a special meeting in late October/early November.
The Waste Management Board met on June 10, 2019, as summarized in a previous update. The Board did not set its next meeting date.
The Board of Game and Inland Fisheries met on August 22, 2019. No agenda items were relevant to VAA members. Future meeting dates have not been announced.
The State Air Control Board met on June 21, 2019. No agenda items were relevant to VAA members. The Board will next meet on September 20, 2019, to discuss carbon trading regulation and regulation of carbon sources other than coal-fired power plants. The agenda for this meeting is available here. The Board is also scheduled to meet on December 6, 2019.
EXECUTIVE ORDER 6 REPORT RELEASED
On August 19, 2019, Secretary of Natural Resources Matt Strickler released his report to Governor Northam summarizing the recommendations resulting from the Executive Order 6 (“EO 6”) review of DEQ. The report includes a wide range of recommendations and is expected to generate significant legislation during the 2020 General Assembly session. We provided a detailed review of the Report in our August 28, 2019 update to VAA members. The Report is available for download on DEQ website here.
FINAL CHESAPEAKE BAY PHASE III WATERSHED IMPLEMENTATION PLAN
In early April 2019, Secretary of Natural Resources Matt Strickler issued Virginia’s draft Phase III Watershed Implementation Plan (WIP) setting forth the state’s approach to the final implementation phase of the Chesapeake Bay TMDL to reduce nutrients and sediment in the Bay. On August 23, 2019, the final WIP was issued that serves as a blueprint for restoring the Chesapeake Bay until 2025. The final WIP is available here. The final WIP establishes multiple state initiatives and funding mechanisms to achieve the plan’s pollution reduction targets. While few of the initiatives are likely to impact VAA members, one initiative that may is the potential expansion of the Chesapeake Bay Preservation Act west of Interstate 95 to encompass the entire Chesapeake Bay watershed. The Act imposes more stringent post-construction stormwater controls and could result in more stringent stormwater requirements for VAA member projects west of Interstate 95. DEQ is convening a work group of potentially impacted stakeholders to evaluate the proposed expansion.
AIR PERMIT FUEL OIL CERTIFICATION REQUIREMENTS
Air permits often contain a requirement that fuel suppliers provide a certification that the fuel oil complies with American Society for Testing and Materials (ASTM) specifications numbers 2, 4, or 5. Such statements are typically included in the bill of lading. In a recent inspection at a member’s facility, DEQ took the position that a general statement that the fuel oil “meets all federal and state requirements” was not sufficient to comply with the permit requirement. Rather, DEQ’s position is that the specific ASTM standard must be referenced as part of the certification. Members should carefully review their permits and ensure that fuel supplier certifications meet the permit requirements.
MINOR REVISIONS TO THE AST FINANCIAL RESPONSIBILITY REQUIREMENTS
On September 5, 2019, the revised AST and Pipeline Facility Financial Responsibility Requirements rule (9VAC25-640-30) became effective. The rule’s language regarding activities excluded from regulation was revised to conform to the companion rule, 9VAC25-91 et seq., which determines whether a facility or an individual AST is subject to registration. The revised language clarifies that licensed motor vehicles are excluded, unless they are used solely for the storage of oil (for example, airport refueling trucks and mobile refueling vehicles). Additionally, an AST that forms an integral part of the equipment or machinery and its AST contents are solely used by the attached equipment or machinery (for example, fuel tank affixed into the frame of an emergency generator) is excluded from the rule. Since the companion rule already excepted these facilities from regulation, this change should have little practical impact and merely confirms that no financial assurances are needed for these facilities.
6. EPA and Corps Repeal 2015 Waters of the U.S. Rule.
While our updates are primarily focused on Virginia-specific issues, EPA and the U.S. Army Corps of Engineers recently announced an important federal update that has significant effects here in Virginia. The agencies will soon finalize the first step in their plans to repeal and replace the Obama-era 2015 Clean Water Rule (2015 Rule) which expanded the definition of Waters of the U.S. (WOTUS), giving the agencies broad jurisdiction to enforce the Clean Water Act (CWA). On September 13, the agencies released a pre-publication version of a new final rulemaking (available here) which will repeal the 2015 Rule and reinstate the regulations in place before the 2015 Rule. The rule will go into effect 60 days from its publication in the Federal Register. Once effective, the final rule will end the current national patchwork where half the states have been applying the WOTUS regulations in place prior to the 2015 Rule, while the other states, including Virginia, have still been subject to the 2015 Rule. The agencies state that they will implement the pre-2015 Rule regulations as informed by applicable agency guidance and consistent with Supreme Court decisions and longstanding agency practice. The practical effect for VAA members is that federal and state agencies will now use the less expansive WOTUS definition for regulatory purposes including in the permitting context and for the Corps in making jurisdictional determinations as to what qualifies as a WOTUS.
The next step in the process will be for EPA and the Corps to issue a new definition of WOTUS. We are hopeful that will happen before the end of the year and will keep members apprised of that final rulemaking.
7. Erosion and Sediment Control and Stormwater Management Regulations Consolidation and Regulatory Advisory Panel Meeting.
DEQ is developing regulations to consolidate the existing Virginia Erosion and Sediment Control Program and the Virginia Stormwater Management Program to create the Virginia Erosion and Stormwater Management Program as a result of 2016 legislation. The proposed consolidation also affects other regulations relevant to VAA members such as the Industrial Stormwater General Permit regulations, the Small MS4 regulations, and the Chesapeake Bay Preservation Act regulations. The purpose of the consolidation is to clarify program requirements, eliminate redundancies between the two programs, and correct inconsistencies. The consolidated regulations are likely to result in a number of changes to stormwater and erosion and sediment control regulatory programs which are likely to impact VAA members.
DEQ is utilizing a Regulatory Advisory Panel (RAP) to assist in the development of the consolidated regulations. The RAP held its first two meeting in June and July and the next RAP meeting is scheduled for September 30, 2019. For any members interested in participating in this process, additional details regarding the meeting are available here.
NEW GUIDANCE DOCUMENTS
On August 22, 2019, DEQ posted revisions to Chapters 1 & 5 of its Title V Air Permits Guidance Manual originally released in 1999. The change simply deletes Chapter 1 of the guidance which addressed applicability of the Title V permitting program to stationary sources and outlined possible ways a source could relate to the applicability and voluntary limits and Chapter 5, to the statement of basis document. The Manual is available here.
On July 16, 2019, DEQ posted a final Guidance Memo titled Risk Based Inspection Strategy (RBIS) for Underground Storage Tanks (USTs). As previously indicated, the guidance includes criteria for establishing annual inspection schedules based on various risk categories. The Guidance became effective on June 13, 2019. The final Guidance is available here.
Other recently issued guidance documents are not relevant to VAA members. For instance, DEQ issued revisions to the Living Shorelines Loan Program Guidelines and Local Plan Guidelines, Agricultural Best Management Practices Loan Program Guidelines, and Virginia’s Nonpoint Source Implementation Best Management Practice Guidelines. All DEQ guidance documents are available here.