The State Water Control Board met on April 15, 2019. The Board approved final regulations for three general VPDES permits for stormwater associated with industrial activity, the construction stormwater general permit, and nonmetallic mineral mining (sand and gravel mining).
Regarding the industrial stormwater general permit, one of the key issues in the proposal relates to Chesapeake Bay TMDL monitoring requirements under the 2014 ISWGP and potential TMDL Action Plans required if benchmarks are exceeded. The changes to the general permit adopted by the Board remove requirements for facilities to continue monitoring for the Bay TMDL where a facility has taken the required four samples and have demonstrated that no TMDL Action Plan is required. This issue was hotly debated during the technical advisory committee process for the permit reissuance. As anticipated, environmental organizations, primarily led by the Chesapeake Bay Foundation (CBF), vehemently opposed the removal of these monitoring requirements in the ISWGP. At the meeting, the Board strongly considered CBF’s proposal to require some additional Bay TMDL monitoring on a tiered basis but ultimately the permit was approved without CBF’s proposal.
One other surprise during the meeting came when Board Member James Lofton, after hearing public comments on the proposed revisions to the Construction General Permit and in light of ongoing issues with turbidity from pipeline construction moved to direct DEQ staff to develop numeric turbidity standards for use across the Commonwealth. The Board approved the motion, directing DEQ to develop such criteria on an accelerated schedule. DEQ suggested considering such criteria as part of the next Triennial Review of Water Quality Standards. However, based on the Board’s motion, DEQ may accelerate the Triennial Review process. The Board asked for updates on this issue during future Board meetings.
Additionally, the Board approved a Consent Order for a Tysons food facility. This may be of interest to VAA only because last year the Board rejected a proposed Consent Order citing the need for a higher penalty. The rejected penalty amount was $16,000; at the April meeting, the Board approved a $30,160 penalty. DEQ presented this as the maximum penalty it could recommend given the considerations outlined in state law. As previously reported, this demonstrates the shift under the current administration (both at the DEQ staff and Board levels) toward seeking higher penalties.
The Board will next meet on June 27. Future meeting dates are September 6 and December 13.
The Waste Management Board met on June 10, 2019, to adopt its an annual update to Virginia’s regulations for consistency with federal law. At this meeting, the Board adopted amendments relating to the transportation of hazardous waste. The Board also approved updates to its hazardous waste management regulations, which occur annually, in order to incorporate changes made in EPA’s regulations. The update incorporates EPA’s Hazardous Waste Management Regulations from July 1, 2018 as well as some specific rulemaking made since that time most of which are not relevant to VAA members. The Board did not set its next meeting date.
The Board of Game and Inland Fisheries met on March 21, April 18, and May 30, 2019. No agenda items were relevant to VAA members. However, during its May 2019 meeting, the Board appointed Ryan Brown as the new Executive Director of the Virginia Department of Game and Inland Fisheries. Mr. Brown is an attorney who was previously an appointed member of the Board. He chaired the Department’s Wildlife, Boat, and Law Enforcement Committee, and also previously worked within the Department and at the Virginia Attorney General’s office. The Board will next meet on June 20, 2019, and no agenda for that meeting has yet been posted.
The State Air Control Board met on April 19, 2019 to consider proposed Regulations for Emissions Trading, which the Board subsequently adopted. The regulations place a cap on carbon dioxide emissions (CO2) from large fossil fuel fired electric power generating facilities. The regulation intends to reduce carbon emissions from these facilities by 30 percent by 2030, with an initial cap of 28 million tons of CO2. We have been regularly reporting on this regulation since the proposal emerged in 2017. The regulation sets the ground for Virginia to join the Regional Greenhouse Gas Initiative (RGGI) which would further reduce carbon emissions in Virginia. In early May, however, Governor Northam failed to veto state budget language that included a provision prohibiting the use of government funds for Virginia’s participation in RGGI. Thus, although the regulations have been adopted it is unlikely that Virginia will move forward with participating in a regional carbon trading program until a new budget is passed without the prohibitory language.
The approved regulation is available here. The Board will next meet on June 21, 2019.
EXECUTIVE ORDER 6 REPORT SUBMITTED, WITHHELD FROM PUBLIC
As discussed in previous updates, Executive Order 6 involves a comprehensive review of the Department of Environmental Quality (“DEQ”). An interim report was submitted to the Governor on October 1, and we understand that the final report was submitted to the Governor in April 2019. However, the final report has not been made public and is being treated as “Governor’s working papers.” We expect that significant recommended changes to DEQ operations were included in the final report, likely relating to environmental justice (as further discussed below), enhancing transparency and communication with the public, and increasing funding and staffing. We will continue to push for details regarding the recommendations in the final report and update VAA members as proposals from the report are implemented.
DRAFT 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 Total Maximum Daily Load (TMDL) to reduce nutrients and sediment in the Bay. Public comment on the draft WIP closed on June 7, 2019. DEQ and the Secretary are considering feedback and will publish the final WIP no later than August 9, 2019. The Commonwealth of Virginia is also awaiting EPA’s feedback on the draft WIP.
The draft WIP is available here.
COUNCIL ON ENVIRONMENTAL JUSTICE APPOINTMENTS
As established under Governor Northam’s Executive Order 29, the Council on Environmental Justice is a group that provides guidance to the Governor on ensuring environmental justice considerations are incorporated into agency processes. On May 3, 2019, Governor Northam made the following appointments to the Virginia Council on Environmental Justice:
- Nikki Bass of Washington, D.C., Tribal Councilwoman, Nansemond Indian Nation.
- Tom Benevento of Harrisonburg, Co-Director, New Community Project.
- Jevonte Blount of Hampton, Master of Public Administration Candidate, Virginia Commonwealth University.
- Herbert Brown of Warfield, Marketing Manager, Browntown Farms.
- Nathan James Burrell of Richmond, Facility Maintenance and Operations Manager, Department of Parks, Recreation, and Community Facilities, City of Richmond.
- Hope F. Cupit of Bedford, President and CEO, Southeast Rural Community Assistance Program.
- Taysha DeVaughan of Wise, President, Southern Appalachian Mountain Stewards.
- Reverend Dr. Mike Ellerbrock of Blacksburg, Professor, Department of Agricultural and Applied Economics, Virginia Tech and Minister, Catholic Diocese of Richmond.
- Jay Ford of Belle Haven, Virginia Voices Coordinator, Chesapeake Bay Foundation and Owner, Shine and Rise Farm.
- Reverend Dr. Faith B. Harris of Varina, Vice Chair, Virginia Interfaith Center for Public Policy and Chair, Virginia Interfaith Power and Light.
- Reverend Dr. Lisa Johnson of Accomack, Diversity and Inclusion Program Specialist, NASA Goddard Space Flight Center.
- Raul Garcia Lopez of Arlington, Senior Legislative Counsel, Earthjustice.
- Nathaniel X. Marshall of Lynchburg, Equal Employment Opportunities Manager, BWX Technologies, Inc.
- Janet A. Phoenix, MD, MPH of Herndon, Assistant Research Professor, George Washington University.
- Beth Roach of Richmond, Tribal Councilwoman, Nottoway Indian Tribe.
- EJ Scott of Manassas, Environmental Program Manager, Sev1Tech, Inc.
The Council is tasked with issuing a report to the Governor by January 22, 2020 providing guidance to incorporate environmental justice into state government processes, including a framework to ensure environmental justice is considered in policymaking, permits, programs, and procedures. One concern is that the Council may suggest adding environmental justice to state law, which would add another layer of review and process to regulatory and permitting decisions. We will continue following the actions and report of the Council are likely to ultimately influence environmental policymaking in Virginia.
GOVERNOR LAUNCHES MAP-BASED CONSERVATION TOOL CONSERVEVIRGINIA
In April 2019, Governor Northam announced a launch of ConserveVirginia, a data-driven land conservation strategy that identifies high value lands and conservation sites in the state. ConserveVirginia was developed to implement a land conservation strategy Governor Northam announced last year with the goal of preserving lands with the highest conservation value.
ConserveVirginia is a map-based tool that includes six categories of data, each representing a different conservation value, including agriculture and forestry, natural habitat and ecosystem diversity, floodplains and flooding resilience, cultural and historic preservation, scenic preservation, and protected landscapes resilience. ConserveVirginia identifies 6.3 million acres of high priority conservation areas across the Commonwealth. This map-based tool will be regularly updated and expanded as new data becomes available. Future maps will identify high nutrient and sediment load areas in need of conservation to protect and restore the Chesapeake Bay Watershed.
ConserveVirginia map-based tool is available here
INCREASING FOCUS ON PFAS REGULATION
PFAS contamination is a growing area of concern nationwide, drawing comparisons to asbestos and PCB contamination. PFAS stands for perfluoroalkyl and polyfluoroalkyl substances, a class of fluorinated organic chemicals. It is a constituent that is found in a wide variety of projects, including certain types of paint, stains, cleaning products, non-stick products and firefighting foams. At the national level, EPA has adopted a human health advisory level of 70 parts per trillion but has not adopted nationwide water quality standards for PFAS. More recently, in February 2019, EPA issued its PFAS action plan discussed here. Although PFAS regulation is unlikely to directly affect VAA members, it is possible that PFAS may be found in certain paints or other chemicals used in the asphalt manufacturing process.
Virginia has passed its first piece of legislation relating to PFAS. The bill On April 3, 2019, the Virginia General Assembly adopted a bill to prohibit the use of class B firefighting foam that contains intentionally added PFAS. The prohibition takes effect on July 1, 2021.
The bill is available here.
DEQ ISSUES TOXICS RELEASE INVENTORY FOR 2017
In March 2019, DEQ issued Toxics Release Inventory Report for 2017. The report highlights releases in Virginia, both by industrial sector and by individual facility, and indicates a small, one percent decrease in releases as compared to 2016.
The report is available here.
MONARCH BUTTERFLY BEING CONSIDERED FOR ENDANGERED SPECIES ACT LISTING
The U.S. Fish and Wildlife Service (FWS) is considering the potential listing of the monarch butterfly as threatened or endangered under the federal Endangered Species Act. Given that the historic range of the monarch butterfly covers much of North America, including Virginia, any listing could have the potential to impact future projects. Relevant to VAA, this could include VAA member projects with VDOT. FWS has been working to assess the butterfly’s status since 2014, when it received a petition to protect the species. Although the FWS initially planned to issue its decision whether to list the species in June 2019, this deadline has been recently extended to December 2020. The reason for the extension is to allow the agency to gather and review the best available scientific data to support (or reject) the listing. We will continue to track this potential listing and more information regarding the monarch butterfly and corresponding FWS activity is available here.
NEW GUIDANCE DOCUMENTS
On May 13, 2019, DEQ posted for public comment a Guidance Memo titled Risk Based Inspection Strategy (RBIS) for Underground Storage Tanks (USTs). The guidance includes criteria for establishing annual inspection schedules based on various risk categories. Public comment on this strategy closed on June 12, 2019, and the planned effective date of the strategy is June 13, 2019. The proposed strategy is available here.
On May 28, 2019, DEQ issued a draft 2020 Water Quality Assessment Guidance Manual that includes assessment procedures and methods for Virginia water ways. The results of the assessment are incorporated into reports submitted to EPA prioritizing the development of total maximum daily loads (TMDLs) for various constituents. Changes made to the manual since 2018 are discussed in Part II and are minor, including incorporation of EPA guidance on Chesapeake Bay assessment methodologies and modifying how some information is submitted to EPA. The manual is available here.
UPCOMING REGULATORY DEADLINES
- Emergency Planning and Community Right to Know Act (EPCRA) Toxic Release Inventory reports are due July 1. More information is available on DEQ’s EPCRA page.
- Industrial Stormwater Semi-Annual DMR Submission (and Potential Corrective Action). Asphalt facilities subject to the general VPDES permit for storm water discharges from industrial facilities are required to submit their second semi-annual Discharge Monitoring Report (DMR) to DEQ on July 10.