TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Agency Decision

Title of Regulation: 2VAC5-319. Best Management Practices for the Operation of Apiaries in Order to Limit Operator Liability.

Statutory Authority: § 3.2-4411.1 of the Code of Virginia.

Name of Petitioner: C.B. Ecker

Nature of Petitioner's Request: Petitioner requests amendments to 2VAC5-319, Best Management Practices for the Operation of Apiaries in Order to Limit Operator Liability, to (i) provide a mechanism to offer public comment regarding the regulation via a regional apiary inspector; (ii) establish provisions for short-term waivers, long-term waivers, and permanent exemptions from the best management practices included in the regulation; and (iii) authorize the Virginia State Beekeepers Association's website as an official communication outlet for the Virginia Department of Agriculture and Consumer Services (VDACS) and direct VDACS to establish or reinitiate official communication with certain entities to communicate honey beekeeping policy to best inform apiarists without broadband service.

Agency Decision: Request denied.

Statement of Reason for Decision: The Board of Agriculture and Consumer Services (board) voted to take no action on the petitioner's request for rulemaking for the following reasons: The petitioner requests amendments to 2VAC5-319, Best Management Practices for the Operation of Apiaries in Order to Limit Operator Liability, to (i) provide a mechanism to offer public comment regarding the regulation via a regional apiary inspector; (ii) establish provisions for short-term waivers, long-term waivers, and permanent exemptions from the best management practices included in the regulation; and (iii) authorize the Virginia State Beekeepers Association's website as an official communication outlet for the Virginia Department of Agriculture and Consumer Services (VDACS) and direct VDACS to establish or reinitiate official communication with certain entities to communicate honey beekeeping policy to best inform apiarists without broadband service. Best Management Practices for the Operation of Apiaries in Order to Limit Operator Liability, 2VAC5-319, was established pursuant to § 3.2-4411.1 of Virginia's Beekeeping Law. This section provides that an individual operating an apiary in a responsible manner, in compliance with local zoning restrictions, and in conformance with the agency's best management practices regulation shall not be liable for any personal injury or property damage that occurs in connection with his keeping of bees. Section 3.2-4411.1 further provides that the initial regulations shall be exempt from the requirements of Article 2 of the Virginia Administrative Process Act provided such regulations are adopted no later than November 1, 2016; however, the board shall publish proposed regulations in the Virginia Register of Regulations and allow at least 30 days for public comment. Virginia's Beekeeping Law does not provide authority to the board to establish methods for a person to request amendments to the regulation. In addition, § 2.2-4007 of the Virginia Administrative Process Act establishes a formal process by which a person can request changes to a regulation. Virginia's Beekeeping Law does not provide authority to the board to amend the regulation to allow for waivers or exemptions to provisions established in Best Management Practices for the Operation of Apiaries in Order to Limit Operator Liability, 2VAC5-319. The best management practices in the regulation are those that reduce risks associated with keeping honey bees. Amending the regulation to allow for waivers or exemptions to a voluntary best management practice could provide liability protection for those operations that should not be afforded the limited liability. Section 3.2-109 of the Code of Virginia establishes the board. However, neither § 3.2-4411.1 nor 3.2-109 of the Code of Virginia gives the board authority to establish methods for the communication of information related to beekeeping from VDACS to beekeepers.

Agency Contact: Debra Martin, Program Manager, Office of Plant Industry Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3515, or email debra.martin@vdacs.virginia.gov.

VA.R. Doc. No. R17-20; Filed December 8, 2017, 2:38 p.m.

w  ––––––––––––––––––  w

TITLE 9. ENVIRONMENT

STATE WATER CONTROL BOARD

Agency Decision

Title of Regulation: 9VAC25-260. Water Quality Standards.

Statutory Authority: § 62.1-44.15 of the Code of Virginia.

Name of Petitioner: Virginia Coal and Energy Alliance.

Nature of Petitioner's Request: The Virginia Coal and Energy Alliance (VCEA) has petitioned the State Water Control Board to take action on EPA's Freshwater Aquatic Life Ambient Water Quality criteria for selenium (EPA selenium criteria). The EPA selenium criteria were finalized and published in the Federal Register on July 13, 2016, and include four elements - two that are fish tissue-based and two that are water column-based. The updated EPA selenium criteria reflect the latest scientific knowledge at the national level and provide a more up-to-date evaluation of impacts from selenium than Virginia's current surface water quality criteria at 9VAC25-260-140. Virginia's acute and chronic selenium criteria are over 25 years old, do not reflect the latest scientific information, and are unnecessarily stringent to protect aquatic life. As long as the outdated and obsolete criteria remain on the books, we are concerned that our members will be placed in peril of unreasonable compliance obligations, misguided enforcement actions and baseless lawsuits. At DEQ's July 20, 2016, Regulatory Advisory Panel meeting to address "carry-over" issues from the last Triennial Review of Water Quality Standards, VCEA representatives alerted DEQ to the availability of the new EPA selenium criteria and asked that selenium be addressed along with the other carry-over issues. VCEA now formally requests, pursuant to § 2.2-4007 of the Code of Virginia, that the existing surface water quality criteria for selenium be amended to incorporate the EPA selenium criteria, subject to appropriate tailoring for Virginia's waters and fish species. The board is empowered to adopt water quality standards in the Commonwealth. Section 62.1-44.15 of the Code of Virginia is required to review applicable water quality standards and as appropriate, modify and adopt federal standards 33 USC § 1313(c)(1) and 40 CFR 131.20(a). EPA has recently published technical support materials to assist states in adopting the new selenium criteria, including guidance on monitoring fish tissue, water quality assessment and listings under § 303(d) of the Clean Water Act, and implementation of the criteria in NPDES permits. These technical support materials should provide a sufficient basis to guide adoption of the EPA selenium criteria in Virginia, subject to modifications that reflect the unique characteristics of Virginia's waterbodies and fish species. We note that EPA's criteria include a hierarchy with a stated preference for the use of fish tissue data, where available, in evaluating compliance with the criteria. The criteria provide that where fish tissue data are available, the fish tissue criteria supersede the water column criteria. This same hierarchy should be adopted and the fish tissue criteria should be allowed to prevail over any water column criteria where fish tissue data are available. Importantly, the board will need to consider state- or regionally-specific tailoring of the fish tissue values set by EPA. EPA's data set for fish tissue covers 10 fish genera for chronic toxicity for fish reproductive effects and seven fish genera for nonproductive effects. Some of these species do not occur in some or all of Virginia's waters. As a result, we believe that the fish tissue criteria will need to be adjusted so that they are reflective of, and protective of, the fish species that are actually present. In particular, we ask that regional criteria specific to the coalfields region of the Commonwealth, given its unique geography, geology and hydrology, be considered. Further, a translation procedure, consistent with Appendix K in the EPA selenium criteria document, needs to be adopted to provide a process for use by dischargers seeking site-specific criteria. Whether to deviate from EPA's guidance in the technical support document "FAQs: Implementing the 2016 Selenium Criterion in CWA § 303(d) and 305(b) Assessment, Listing, and TMDL Programs," as it relates to fishless waters will also need to be evaluated. EPA's guidance counsels that where no fish tissue data are available because waters have insufficient in-stream habitat and/or flow to support a population of any fish species on a continuous basis, or waters that once supported populations of one or more fish species but no longer support fish, the water column values are the applicable criteria and the water column data are sufficient to determine whether the criteria have been met. We urge rejection of EPA's approach to fishless waters. Where a waterbody does not have an actual, existing aquatic life use, the use simply does not apply. In that case, the criteria adopted to protect such a use also do not apply. We submit that this is consistent with the longstanding approach to uses and criteria in Virginia. By way of simple example, the "Public Water Supply" use only applies where a public water supply is shown to be present. In the absence of a documented public water supply, neither the use nor the corresponding "PWS" criteria apply. Finally, given the time it is likely to take to implement any change in the selenium criteria, and the need for permittees to appropriately adjust their operations to comply with any new limits, authorizing longer term compliance schedules for permittees will need to be considered, since compliance with criteria-based limits may in some cases take more than five years.

Agency Decision: Request denied.

Statement of Reason for Decision: The State Water Control Board, at its meeting on December 6, 2017, through December 7, 2017, based on a report from the Department of Environmental Quality (DEQ), voted not to initiate a rulemaking to amend the selenium criteria found in the Water Quality Standards and to await issuance of the final technical support guidance documents from the U.S. Environmental Protection Agency (EPA). DEQ advised the board that EPA's technical support documents and implementation guidance are as important as the criteria themselves, and it could be premature to initiate a rulemaking without the documents and guidance. The "How" to protect aquatic life from a toxicant is as vital as the "What" to allow as acceptable levels of the contaminant. DEQ reported that EPA developed four technical support documents that cover Water Quality Standards adoption, NPDES permitting, waterbody assessment and § 303(d) (Impaired Waters) listing, and fish tissue monitoring to assist in implementation and held a public comment period from October 13, 2016, to February 2, 2017. However, they have not been finalized by EPA for use by the states, and it is unknown when that final action will occur. In addition, staff advised the board that Virginia's stakeholders want and should receive as much certainty as possible on implementation methods along with revised standards; recent examples are proposals for amended bacteria criteria (data period to generate a geometric-mean) and ammonia criteria (justification for extended compliance schedules, beyond permit term).

Agency Contact: David Whitehurst, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4121, or email david.whitehurst@deq.virginia.gov.

VA.R. Doc. No. R17-18; Filed December 14, 2017, 10:03 a.m.

w  ––––––––––––––––––  w

TITLE 16. LABOR AND EMPLOYMENT

SAFETY AND HEALTH CODES BOARD

Initial Agency Notice

Title of Regulation: 16VAC25-60. Administrative Regulation for the Virginia Occupational Safety and Health Program.

Statutory Authority: §§ 40.1-6 and 40.1-22 of the Code of Virginia.

Name of Petitioner: Robert R. Payne, University of Alabama at Birmingham.

Nature of Petitioner's Request: 16VAC25-60-120 currently provides as follows: "The employer shall comply with the manufacturer's specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of all machinery, vehicles, tools, materials and equipment, unless specifically superseded by a more stringent corresponding requirement in 29 CFR Part 1910. The use of any machinery, vehicle, tool, material or equipment that is not in compliance with any applicable requirement of the manufacturer is prohibited, and shall either be identified by the employer as unsafe by tagging or locking the controls to render them inoperable or be physically removed from its place of use or operation." The petition requests the following language be added to the end of the current regulation: "Any employer who is using machinery, vehicles, tools, materials or equipment as part of a Process Safety Management (PSM) covered process, as defined in 29 CFR 1910.119, may adjust the operation, training, use, installation, inspection, testing, repair or maintenance after completion of the following:

• Documenting the adjustment from the Manufacturer's Specifications and Limitations (MS&L) in the Process Safety Information (PSI),

• Completing the Management of Change (MOC) requirement described in 29 CFR 1910.119(l) and

• Certification from a company executive that they have examined this adjustment and that to the best of their knowledge the information is true, accurate and complete."

Agency Plan for Disposition of Request: In accordance with § 2.2-4007 B of the Code of Virginia the petition has been filed with the Registrar of Regulations and will be published on January 8, 2018. Comment on the petition may be sent by email or regular mail or posted on the Virginia Regulatory Town Hall at www.townhall.virginia.gov. Comment will be requested until January 28, 2018. Following receipt of all comments on the petition to amend the regulation, the Safety and Health Codes Board will decide whether to make any changes to the regulatory language. This matter will be on the board's agenda for its next regularly scheduled meeting following the end of the comment period. The board does not currently have a meeting scheduled. The board will issue a written decision on the petition within 90 days of the close of the comment period, or within 14 days of its next meeting should the board not meet within the initial 90-day period.

Public Comment Deadline: January 28, 2018.

Agency Contact: Jay Withrow, Director, Division of Legal Support, VPP, ORA, OPP, Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804) 786-9873, or email jay.withrow@doli.virginia.gov.

VA.R. Doc. No. R18-14; Filed December 18, 2017, 9:36 a.m.