February 19, 2020

VIA ELECTRONIC AND FIRST-CLASS MAIL

Mr. Gary E. Graham

Virginia Department of Environmental Quality

1111 East Main Street, Suite 1400

Richmond, VA 23218

Gary.Graham@deq.virginia.gov

Dear Mr. Graham:

On behalf of Virginia Manufacturers Association (“VMA”), we are writing in response to the Virginia DEQ’s Notice of Intended Regulatory Action (“NOIRA”) to consider amending 9 VAC 25-720 et seq. (“WQMP Regulations”) and 9 VAC 25-820 et seq. (“Nutrient General Permit”).  These regulations contain wasteload allocations for significant dischargers to Virginia’s portion of the Chesapeake Bay under the watershed-wide Total Maximum Daily Load (“TMDL”).  A number of VMA are covered by these regulations and will be affected by DEQ’s regulatory action. We understand DEQ intends to convene a Regulatory Advisory Panel (“RAP”) and we write to request that VMA be represented on the RAP.

VMA has played an active role in the development and implementation of the WQMP Regulations and Nutrient General Permit, as well as other DEQ policies and procedures affecting water quality in Virginia’s tidal tributaries to the Chesapeake Bay.  VMA serves on the Secretary of Natural Resources’ Stakeholder Advisory Group for the Chesapeake Bay, as well as the RAP assisting in the development of numeric Chlorophyll a criteria for the James River. VMA also served on the work group under Executive Order 52, which was one of the catalysts for the NOIRA.

VMA is concerned with several aspects of the NOIRA, including DEQ’s proposal to single out industrial dischargers for wasteload allocation reductions that are “unneeded.”  This runs contrary to long-established plans for determining if and when any wasteload allocations may need to be revised.  

In 2016, Governor McAuliffe signed Executive Order 52 establishing a work group to address methods to offset discharges of nutrients by new or expanding point sources in the Chesapeake Bay watershed. Along with other members, VMA helped prepare a report to the Governor proposing a plan to meet the needs of new or expanding dischargers.[1]  The report recommended a periodic review of wasteload allocations, but nowhere did the report limit this review to industrial dischargers alone.  Additionally, the report recommended that any periodic review should be undertaken under strict guidance developed by DEQ in consultation with key stakeholders.  To VMA’s knowledge, no such guidance has been developed. Finally, the report recommended that the first periodic review should be limited to “the most dramatic changed circumstances,” such as facility closure, if any.  We urge DEQ to conform its NOIRA with the recommendations made by the work group pursuant to Executive Order 52.

The NOIRA also indicates that DEQ will consider changes to wasteload allocations “if necessary” to meet Virginia’s new Chlorophyll a criteria for the tidal James River.  VMA understands that DEQ’s studies have shown that there is no need for additional wasteload allocation reductions to address Chlorophyll a beyond the allocations to meet the Chesapeake Bay TMDL goals. Thus, we question whether this aspect of the NOIRA is justified or appropriate.

Finally, given the vast number of stakeholders potentially affected by the three goals mentioned in the NOIRA, VMA recommends that DEQ address each of the proposed goals in the NOIRA through separate meetings so that the most affected stakeholders are able to effectively participate in the process.  It would also make sense for such meetings to include a greater number of RAP representatives from the sectors primarily affected by the proposed changes to the regulations.

Please include Andrew Parker (AdvanSix and chair of VMA’s Water Subcommittee), as VMA’s representative on the RAP.  We also request that Andrea Wortzel (Troutman Sanders) be included as an alternate on the RAP.  Please feel free to contact us with any questions.

Sincerely,

Brooks M. Smith

Andrea W. Wortzel

Patrick J. Fanning

Counsel to VMA Water Subcommittee

cc:  VMA Water Subcommittee Members