Virginia Environmental Law Update for 1997

Geographic Information Network. The Virginia Geographic Information Network Division and the Geographic Information Network Advisory Board are established within the Council on Information Management. The Division is established to foster the creative utilization of geographic information and oversee the development of a catalog of Geographic Information System (GIS) data available in the Commonwealth. The system will allow the computerized storage and integration of geographic data to allow a wide range of information processing and display operations. The Board is established to advise the Division. (HB 1597)

Soil and Water Conservation Districts. The legislature amended the definition of "public body" in the Open-Space Land Act to include soil and water conservation districts. The amendment allows districts to hold land under the Act. (HB 1668)

Open-Space Lands Preservation Trust Fund. New legislation creates the Open-Space Lands Preservation Trust Fund. The Fund, administered by the Virginia Outdoors Foundation, is established to aid in covering costs associated with the conveyance of conservation easements. These costs may include legal costs, appraisal costs, or all or part of the value of the easement. Regional open-space preservation advisory boards will be established to evaluate grant applications and make recommendations for the distribution of funds. (HB 2044)

Water Quality Improvement General Permit. House Bill 2107 directs the State Water Control Board to coordinate efforts between the Department of Environmental Quality, the Virginia Marine Resources Commission, and other agencies to develop a united general permit and streamlined permitting process for bioengineering standards projects, livestock stream crossings and certain other water quality improvement activities. This permit will apply to activities that (1) may be covered by a Corps of Engineers permit, (2) are designed and supervised by a soil and water conservation district, (3) meet certain design standards, and (4) are intended to improve water quality. The general permit must be promulgated as final by July 1, 1998. This bill took effect when signed by the Governor on April 2, 1997. (HB 2107)

Supplemental Environmental Projects. This legislation provides that an environmentally beneficial project that is not otherwise required by law may be undertaken as partial settlement of a civil enforcement action. To qualify, the project must have a reasonable geographic nexus to the violation or if this is not possible, the project must advance at least one of the objectives of the environmental law or regulation that was the basis of the enforcement action. The enforcement agency, in determining the appropriateness of a project, must consider factors such as the project cost, the benefit to the public or the environment, innovation, impact on minorities or low income populations, impact on multimedia, and pollution prevention. Although the party must consent to the project, performance is enforceable as any other provision of the order. (HB 2110, SB 952)

Real Property Tax; Environmental Restoration Sites. Environmental restoration sites are now treated as a separate class of real property for local property tax purposes. The locality may exempt or partially exempt such property from local taxes for up to five years. "Environmental restoration sites" are defined as real estate that contains or did contain environmental contamination from the release of hazardous substances, hazardous wastes, solid waste or petroleum, the restoration of which would abate or prevent pollution. The site must be subject to voluntary remediation and receive a certificate of continued eligibility from the Waste Management Board for each year it qualifies for this tax treatment. (HB 2141)

Small Business Environmental Compliance Assistance Fund. This legislation creates the Small Business Environmental Compliance Assistance Fund, established to make or guarantee loans to small businesses (those that employ 100 or fewer people) for the purchase and installation of environmental pollution control and prevention equipment. However, the loan may not be used for the purchase or installation of equipment needed to comply with a state enforcement action. In addition to moneys appropriated by the General Assembly, the Fund is comprised of receipts from loans made, investment income, and moneys transferred from the Virginia Environmental Emergency Response Fund. The Department of Environmental Quality, or its designee, will administer the Fund and determine the terms and conditions of the loans. (HB 2161)

Virginia Water Quality Improvement Act of 1997. This Act establishes a comprehensive statewide program to address point and non-point sources of water pollution. It creates the Virginia Water Quality Improvement Fund to provide assistance to a broad array of entities, including local governments, soil and water conservation districts, and landowners. Ten percent of any general fund annual surplus and ten percent of any unreserved general fund balance whose reapportionment is not required in the general appropriations act will go to the Fund. Moneys may also come from other sources, public or private, such as federal grants, interest and income of the Fund, and penalties or damages collected.

The focus of the point source pollution program is, in part, nutrient reduction sufficient to achieve the pollution reduction goals established in part by the Chesapeake Bay Agreement. Capital construction projects of local governments will be the first priority for technical and financial assistance from the Fund.

The non-point source efforts will also focus in part on nutrient reduction. Technical and financial assistance will be provided to local governments, soil and water conservation districts, and individuals through the Fund. In addition, provisions for water quality assessment and state and local cooperation are provided. (HB 2330, SB 1131, SB 1100)

Wetlands Permits. The Virginia Marine Resources Commission is directed to develop an expedited process for issuing wetlands permits in emergency situations in which there is a threat to public or private property or to the health and safety of the public. The Commission is exempt from the public participation requirements of the Administrative Procedures Act if it (1) provides notice, (2) forms an advisory committee composed of the relevant stakeholders, (3) receives oral and written comment on the permit, and (4) conducts at least one public hearing. (HB 2414)

Citizen Standing to Appeal Permit Content. This legislation recognizes that the United States Supreme Court's denial of certiorari in Commonwealth v. Browner on January 21, 1997 made effective the 1996 amendment to Virginia Code § 10.1-1318. The 1996 amendment broadened citizen standing to seek judicial review of state air pollution permits. However, the 1996 amendment was drafted so that it would not become effective unless and until a final and unappealable decision of a court of competent jurisdiction declared that the previous standing provisions did not meet the requirements of the federal Clean Air Act. Commonwealth v. Browner met this contingency, making the 1996 amendment effective. (HB 2415)

Sanitary Landfill and Transfer Station Permit Applications. The necessary information to be included in an application for a new solid waste sanitary landfill or transfer station permit has been expanded. The application must now include a statement describing efforts to solicit public comment. These efforts should include publication of notice in a newspaper of general circulation serving the locality in which the transfer station or landfill is to be located and at least one public meeting in the locality. If the applicant is a local government or public authority, it must, in addition, form a citizens advisory group to assist with the selection of a proposed site. If the local government has zoning ordinances, the public notice and comment requirements can be satisfied by the steps necessary under Sections 15.1-431 and 15.1-439 of the Virginia Code. However, if a locality intends to operate a new transfer station where a municipal sanitary landfill is already located, the locality will be exempt from the public comment requirements. (HB 2479)

Drinking Water Fund. Access to the Virginia Water Supply Revolving Fund is broadened beyond local governments to include other entities that own waterworks which serve the public and serve at least fifteen connections or an average of twenty-five individuals for at least sixty days out of the year. The legislation also clarifies the responsibilities of the Board of Health and the Virginia Resources Authority, to include the reimbursement of the Authority by the Board for costs incurred in the administration of the Fund and the delivery of Authority status reports to the Board. (HB 2739, SB 1025)

Environmental Mediation. The State Air Pollution Control Board, State Water Control Board, and Virginia Waste Management Board are directed to adopt rules and regulations to facilitate use of mediation and dispute resolution proceedings in the development of regulations or the issuance of permits. However, the legislation also lists a number of situations in which mediation or dispute resolution proceedings should not be utilized, such as when an authoritative resolution is needed for precedential value or the matter involves significant questions of state policy that require additional procedures before a final determination can be made. This bill becomes effective on January 1, 1998. (HB 2790, SB 974)

Household Hazardous Waste. This amendment to the Virginia Waste Management Act illustrates the definition of household hazardous wastes by providing a nonexclusive list of specific products that are considered household hazardous waste. (HB 2814)

Environmental Impact Reports. State agencies that are required to submit an environmental impact report on major state projects are directed to include within the report the impact of the project upon wildlife habitat. (HB 2822)

Improper Disposal of Solid Waste; Penalties. This amendment grants standing to political subdivisions to bring civil actions against persons who improperly dispose of solid waste within the subdivision's jurisdiction. In addition, the legislation creates a rebuttable presumption, in a civil action, that solid waste ejected from a motor vehicle was ejected by the owner or operator of the vehicle, unless the vehicle is owned by a motor vehicle rental or leasing company. The maximum civil penalty that may be assessed was increased from $200 to $5,000. Furthermore, attorney's fees and costs may be awarded. Finally, the provisions relating to the improper disposal of tires were modified to limit the number of waste tires that may be placed on property without a permit to 100, and to classify the improper storage or disposal of 100 to 500 tires as a Class 1 misdemeanor and the improper disposal of 500 or more tires as a class 6 felony. (SB 0761)

Water Quality Laboratory Certification. The Division of Consolidated Laboratory Services is directed to establish a program for the certification of laboratories conducting tests or monitoring pursuant to Virginia's air, waste, and water laws. The regulations establishing the program, however, will not be promulgated until national accreditation standards are adopted. Once the certification program is established, laboratory certification will be required before any tests or monitoring performed may be used for purposes of the state air, waste, and water laws. A fee system will be established to offset the cost of certification. This bill becomes effective on January 1, 1998. (SB 1039)

Water Quality Monitoring, Information and Restoration Act. This legislation directs the State Water Control Board, in carrying out its reporting and monitoring duties, including reports required by the federal Clean Water Act, to conduct monitoring so that it: (1) establishes consistent monitoring locations and techniques, (2) expands the percentage of river and stream miles monitored, (3) expands the parameters monitored and the frequency of sampling, and (4) utilizes mobile laboratories and announced and unannounced testing.

The Act also contains several citizen right-to-know provisions. Water quality information must be passed along to the public through notices posted at access points for toxic impaired waters, a citizen hotline for telephone or internet access to water quality information, and the Board's provision of discharge information to local newspapers.

In addition, the Board is directed to develop a plan to bring impaired waters within the fishable and swimmable goals of the Clean Water Act. The plan shall provide for the promulgation of water quality standards, establish a priority ranking for addressing water quality problems, and develop total maximum daily loads of pollutants that may enter certain waters. Finally, owners of establishments that discharge toxics into toxic-impaired waters are directed to evaluate pollution prevention mechanisms. The Board will review the owner's evaluation of these options prior to issuing or reissuing any permit. (SB 1122)

Scott A. Johnson
Mr. Johnson is an Associate in the Firm.
E-mail: [email protected]