Title of Regulation: 9VAC25-720. Water Quality Management Planning Regulation (amending 9VAC25-720-120).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1313(e) of the Clean Water Act.

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until 5 p.m. on March 18, 2009.

Effective Date: April 2, 2009.

Agency Contact: John M. Kennedy, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4312, FAX (804) 698-4116, or email jmkennedy@deq.virginia.gov.

Basis: Section 62.1-44.15 of the Code of Virginia is the source of legal authority identified to promulgate these amendments. The promulgating entity is the State Water Control Board.

The scope and purpose of the State Water Control Law is to protect and to restore the quality of state waters, to safeguard the clean waters from pollution, to prevent and to reduce pollution and to promote water conservation. The State Water Control Law (Code of Virginia) at § 62.1-44.15(10) mandates the board to adopt such regulations as it deems necessary to enforce the general water quality management program of the board in all or part of the Commonwealth. In addition, § 62.1-44.15(14) requires the board to establish requirements for the treatment of sewage, industrial wastes and other wastes that are consistent with the purposes of this chapter. The specific effluent limits needed to meet the water quality goals are discretionary.

The correlation between the proposed regulatory action and the legal authority identified above is that the amendments being considered are modifications of the current requirements for the treatment of wastewater that will contribute to the attainment of the Virginia Water Quality Standards.

Purpose: The purpose of this rulemaking is to amend the total nitrogen and total phosphorus waste load allocations for the New Kent County Parham Landing Wastewater Treatment Plant, located in the York River basin, reflecting use of an updated design flow figure in the underlying calculation of these allocations. It is the responsibility of the board to protect state waters by adopting regulations that are technically correct, necessary and reasonable. The effect of this regulatory action is to reduce the allowable annual loads of total nitrogen and total phosphorus discharged by this facility, due to the fact that a design flow expansion will be smaller than originally planned.

Resulting permit limitations are expressed principally as annual waste load allocations, and also as technology-based annual average concentrations where appropriate and authorized. These actions are needed because wastewater treatment plant discharges of nitrogen and phosphorus contribute to the overall, excessive loading of nutrients to the bay and its tributaries. These nutrients have been identified as pollutants contributing to adverse impacts in large portions of the bay and its tidal rivers, which are included in the list of impaired waters required under § 303(d) of the Clean Water Act and § 62.1-44.19:5 of the Code of Virginia. Waters not meeting standards require development of a Total Maximum Daily Load (TMDL), also required under the same sections of federal and state law. In May 1999, EPA Region III included most of Virginia's portion of the bay and extensive sections of several tidal tributaries on Virginia's impaired waters list. Virginia, EPA and the other Bay Program partner jurisdictions have begun the TMDL development process, scheduled for completion by the end of 2010.

Achievement of the point source effluent limitations governed by the proposed amendments will aid in compliance with Virginia’s new tidal water quality standards and are reasonably expected to contribute to the attainment or maintenance of such water quality.

Rationale for Using Fast-Track Process: The proposed amendments are expected to be noncontroversial and, therefore, justify using the fast-track process. The total nitrogen and total phosphorus waste load allocations assigned to significant dischargers under the amendments to 9VAC25-720 adopted by the board in 2005 used a consistent approach of coupling full design flow with stringent nutrient reduction technology. In the case of New Kent County-Parham Landing WWTP, a planned expansion from 0.568 MGD to 3.0 MGD was expected to be certified for operation by December 31, 2010, and the nutrient waste load allocations were conditioned on this higher design flow. Now the county plans to expand the plant to just 2.0 MGD, which results in reduced nutrient waste load allocations and lower annual loads of nitrogen and phosphorus discharged to the York River. Another benefit is the funds saved by constructing the smaller plant will be used by the county to build a reuse system that will provide bulk irrigation water to aid in preventing groundwater shortages in the area.

Substance: In 9VAC25-720-120 C, for the New Kent County-Parham Landing WWTP (VA0088331), the amendments revise the total nitrogen (TN) waste load allocation figure from 54,820 to 36,547 pounds per year and the total phosphorus (TP) waste load allocation figure from 6,396 to 4,264 pounds per year. Also, the amendments revise the total basin TN waste load allocation figure from 1,079,212 to 1,060,939 pounds per year, and the total basin TP waste load allocation figure from 175,601 to 173,469 pounds per year.

These revised waste load allocations will still be conditioned on receipt of a Certificate to Operate (CTO) for the expanded facility by December 31, 2010. If the county does not secure a CTO for the 2.0 MGD design flow by that deadline, the allocations will decrease to TN = 10,416 lbs/yr; TP = 1,215 lbs/yr, based on a design flow of 0.57 MGD.

Issues: The public will benefit as these amendments will result in the discharge of reduced amounts of nitrogen and phosphorus in the Chesapeake Bay watershed. This, in turn, will aid in water quality restoration in the bay and its tributary rivers, and assist in meeting the water quality standards necessary for protection of the living resources that inhabit the bay. New Kent County will benefit, being able to secure revised waste load allocations for a smaller plant expansion and use the construction savings to build a reuse system that will provide bulk irrigation water to aid in preventing groundwater shortages in the area. There is no disadvantage to the agency or the Commonwealth that will result from the adoption of these amendments.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. New Kent County has petitioned for revised nutrient waste load allocations for their Parham Landing Wastewater Treatment Plant, which is now in design for upgrade/expansion. The county originally planned to increase the design flow of the plant from 0.568 million gallons per day (MGD) to 3.0 MGD which is currently reflected in these regulations, and now intends to construct a smaller addition that will raise the design flow to only 2.0 MGD. The State Water Control Board (Board) proposes to amend these regulations to reflect this change.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. New Kent County (county) is currently designing an upgrade/expansion to their Parham Landing Wastewater Treatment Plant which is scheduled to become operational by the end of 2010. However, the expansion will now be smaller than originally anticipated.¹ Consequently, this smaller expansion would allow the total nitrogen waste load allocation to be approximately 18,000 lbs/year² less and the total phosphorous waste load allocation be approximately 2,000 lbs/year³ less than allowed under the current regulations. In addition, the proposed regulation would decrease the total waste load allocations for the entire York River basin by those same amounts. That is, the total nitrogen allocation would decrease from 1,079,212 lbs/year to 1,060,939 lbs/year and the total phosphorous allocation would decrease from 175,601 lbs/year to 173,469 lbs/year. Less waste is of course beneficial for the environment. Since New Kent does not need the higher waste load allotment, lowering it will not cause the county or anyone else any hardship. Thus, the proposal produces a net benefit.

Businesses and Entities Affected. The proposed amendments affect the government and citizens of New Kent County.

Localities Particularly Affected. The proposed amendments affect New Kent County.

Projected Impact on Employment. The proposal will not affect employment.

Effects on the Use and Value of Private Property. The proposal will not affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposal will not affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposal will not affect small businesses.

Real Estate Development Costs. The proposal will not affect real estate development costs.

Legal Mandate. 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 Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

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¹ The county originally planned to increase the design flow of the plant from 0.568 million gallons per day (MGD) to 3.0 MGD, and now intends to construct a smaller addition that will raise the design flow to 2.0 MGD.

² The nitrogen allocation would decrease from 54,820 to 36,547 lbs/year.

³ The phosphorous allowance would decrease from 6,396 to 4,264 lbs/year.

Agency's Response to the Department of Planning and Budget's 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 proposed amendments to 9VAC25-720-120 C revise total nitrogen and total phosphorus waste load allocations for the New Kent County-Parham Landing Wastewater Treatment Plant (VA0088331) located in the York River basin.

By letter dated June 5, 2008, New Kent County petitioned for revised nutrient waste load allocations for their Parham Landing WWTP, which is now in design for upgrade/expansion. The county originally planned to increase the design flow of the plant from 0.568 million gallons per day (MGD) to 3.0 MGD, and now intends to construct a smaller addition that will raise the design flow to 2.0 MGD. The funds saved by constructing the smaller plant will be used by the county to build a reuse system that will provide bulk irrigation water to aid in preventing groundwater shortages in the area. This sizing change will result in lower discharged nutrient waste load allocations; the total nitrogen allocation would decrease by 18,273 lbs/yr (from 54,820 to 36,547 lbs/yr) and the total phosphorus allocation would decrease by 2,132 lbs/yr (from 6,396 to 4,264 lbs/yr).

9VAC25-720-120. York River Basin.

A. Total Maximum Daily Load (TMDLs).

B. Stream segment classifications, effluent limitations including water quality based effluent limitations, and waste load allocations.

TABLE B1 -- RECOMMENDED STREAM SEGMENTS IN THE YORK RIVER BASIN
Segment Number	Classification	Name of River (Description)*
8-1	EL	North Anna River (main and tributaries except Goldmine Creek and Contrary Creek) R.M. 68.4-0.0
8-2	EL	Goldmine Creek
8-3	WQ	Contrary Creek (main only) R.M. 9.5-0.0
8-4	EL	South Anna River (main and tributaries) R.M. 101.2-97.1
8-5	EL	South Anna River (main only) R.M. 97.1-77.4
8-6	EL	South Anna River (main and tributaries) R.M.77.4-0.0
8-7	EL	Pamunkey River (main and tributaries) R.M. 90.7-12.2
8-8	WQ	Pamunkey River (main only) R.M. 12.2-0.0
8-9	EL	Mattaponi River (main and tributaries) R.M.102.2-10.2
8-10	EL	Mattaponi River (main only) R.M.10.2-0.0
8-11	WQ	York River (main only) R.M. 30.4-22.4
8-12	EL	York River (main and tributaries except King Creek and Carter Creek) –R.M. 22.4-0.0
8-13	EL	Carter Creek (main and tributaries) R.M. 5.4-2.0
8-14	EL	Carter Creek (main only) R.M. 2.0-0.0
8-15	EL	King Creek (main only) R.M.5.6-0.0
8-16	WQ	Condemned shellfish areas- Timberneck, Queens, and Sarah Creeks and portions of the main stream of the York River.

*R.M.= River Mile, measured from the river mouth

Source: Roy F. Western