TITLE 9. ENVIRONMENT
TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Fast-Track Regulation
Title of Regulation: 9VAC25-191. Virginia Pollutant Discharge Elimination System (VPDES) General Permit for Concentrated Animal Feeding Operations (repealing 9VAC25-191-10 through 9VAC25-191-50).
Statutory Authority: §§ 62.1-44.15 and 62.1-44.17:1 of the Code of Virginia; 40 CFR Parts 9, 122, 123, and 412.
Public Hearing Information: No public hearing is currently scheduled.
Public Comment Deadline: November 9, 2022.
Effective Date: November 24, 2022.
Agency Contact: Betsy Bowles, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 659-1913, FAX (804) 698-4032, or email betsy.bowles@deq.virginia.gov.
Basis: The basis for this regulation is § 62.1-44.15 of the Code of Virginia, which authorizes the board to issue permits for the discharge of treated sewage, industrial wastes, or other waste into or adjacent to state waters; to adopt rules governing the procedures with respect to the issuance of permits; to adopt such regulations as it deems necessary to enforce the general water quality management program; and to establish requirements for the treatment of sewage, industrial wastes, and other wastes. Section 62.1-44.17 of the Code of Virginia specifies the board has authority to regulate discharges of other wastes. Section 62.1-44.20 of the Code of Virginia provides that agents of the board may have the right of entry to public or private property for the purpose of obtaining information or conducting necessary surveys or investigations, and § 62.1-44.21 of the Code of Virginia authorizes the board to require owners to furnish information necessary to determine the effect of the wastes from a discharge on the quality of state waters.
The State Water Control Board has the authority to administer the federal National Pollutant Discharge Elimination System (NPDES) program within the Commonwealth, and as such, the program is called the Virginia Pollutant Discharge Elimination System (VPDES) program. Operations that meet the federal definition of a concentrated animal feeding operation (CAFO) found in 40 CFR 122.23 must seek coverage under a NPDES permit if the operation discharges. CAFOs are currently regulated in Virginia under the Virginia Pollution Abatement (VPA) Permit Regulation (9VAC25-32) and General Permit for Animal Feeding Operations and Animal Waste Management (9VAC25-192); the VPA regulation and General Permit for Poultry Waste Management (9VAC25-630); and the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31). CAFOs that discharge are required to obtain an individual VPDES permit under the authority of the VPDES regulation.
Purpose: Repealing this regulation will eliminate confusion as to the mechanism (individual permit versus general permit) that is being used to implement the requirements under the VPDES program that must be adhered to by an owner of a CAFO that discharges. This general permit expired December 31, 2010, and has not been reissued. This general permit regulation does not allow the board to provide the public notice opportunities as required by the federal CAFO rule. CAFOs instead are now regulated under Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31). A VPDES individual permit is issued to any livestock or poultry CAFO that meets the discharge criteria; the individual permit process provides the public notice opportunities as required by the federal CAFO rule. This general permit regulation is being repealed as it is no longer needed for the protection of public health, safety, or welfare. The activities previously regulated by this regulation are regulated using other regulations.
Rationale for Using Fast-Track Rulemaking Process: Repealing this regulation using the fast-track rulemaking process will not be controversial because the general permit associated with this regulation is expired, and no activities are currently covered by this regulation. CAFOs are regulated under Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31); an individual permit is issued to cover any livestock or poultry CAFO that meets the discharge criteria. Any animal feeding operation (AFO) or CAFO that does not discharge is also regulated under the Virginia Pollution Abatement (VPA) Permit Regulation (9VAC25-32) and General Permit for Animal Feeding Operations and Animal Waste Management (9VAC25-192) or the VPA regulation and General Permit for Poultry Waste Management (9VAC25-630). Both the VPA general permits and VPDES individual permits are currently used to permit livestock and poultry AFOs and CAFOs.
Substance: The general permit regulation is no longer needed; therefore, it is being repealed. CAFO and AFO activities are regulated using other regulations.
Issues: Repealing this regulation will be advantageous to the public and to the Commonwealth because it will eliminate confusion as to the mechanism (individual permit versus general permit) that is being used to implement the requirements under the VPDES program that must be adhered to by an owner of a CAFO that discharges. There are no disadvantages of the repeal of this regulation to the public, agency, or Commonwealth.
The Department of Planning and Budget's Economic Impact Analysis:
The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.1
Summary of the Proposed Amendments to Regulation. As a result of a 2021 periodic review,2 the State Water Control Board (Board) is proposing to repeal an obsolete regulation that contains the procedures and requirements for discharges from concentrated animal feeding operations (CAFO) under the Virginia Pollutant Discharge Elimination System Permit (VPDES) general permit program. CAFOs would continue to be regulated through the issuance of VPDES individual permits.
Background. In order to comply with the United States Environmental Protection Agency's (EPA's) federal CAFO rule, the general permit rules were adopted in 2004 with an effective date of January 1, 2006. As is the case with all general permits, it had the standard five-year expiration date at the end of 2010. According to the Department of Environmental Quality (DEQ), between the time the regulation was adopted and its effective date, several federal court cases were decided that affected the CAFO rule, particularly relating to the public notice requirements. The general permit rules in this regulation did not require public notice, and as a result the Board has never issued a permit under this regulation. The regulation became obsolete after its expiration date at the end of 2010. Now, the Board proposes to repeal it in its entirety. CAFO permits have been and will continue to be issued under a separate regulation (9VAC25-31) governing individual permits that require public comment.
Estimated Benefits and Costs. The general permit rules being repealed in this action had an expiration date of December 1, 2010, and have been obsolete since then. Also, no general permits have been issued under this regulation. Thus, no economic impact is expected from repealing this regulation other than eliminating possibly confusing language from the Virginia Administrative Code.
Businesses and Other Entities Affected. The proposed repeal of this regulation would not affect any entities.
The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.3 An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, this action eliminates language that have been obsolete since the end of 2010. Thus, no adverse impact on any entity is indicated.
Small Businesses4 Affected:5 The proposed repeal does not adversely affect small businesses.
Localities6 Affected.7 The proposed repeal does not affect localities or introduce costs for local governments.
Projected Impact on Employment. No impact on employment is expected.
Effects on the Use and Value of Private Property. No impact on the use and value of private property or on real estate development costs are anticipated.
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1Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.
2https://townhall.virginia.gov/L/ViewPReview.cfm?PRid=2069
3Pursuant to § 2.2-4007.04 D of the Code of Virginia: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.
4Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."
5If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.
6"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.
7§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.
Summary:
The existing Virginia Pollutant Discharge Elimination System (VPDES) General Permit for Concentrated Animal Feeding Operations expired on December 31, 2010, and has not been reissued. This regulatory action repeals the regulation containing the general permit in its entirety. Concentrated animal feeding operations (CAFOs) for livestock and poultry that meet the discharge criteria are currently regulated under the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31). Since this general permit regulation is no longer needed, it is being repealed.
VA.R. Doc. No. R22-7031; Filed September 08, 2022