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09.26.2016 Virginia DEQ Proposes to Amend its Enforcement Manual By: Henry R. "Speaker" Pollard, V

Virginia’s Department of Environmental Quality (“DEQ”) plans to amend key portions of its enforcement manual (the “Manual”).  The Manual details key enforcement policies of the agency and is used by DEQ to guide almost every aspect of its enforcement functions for a variety of programs, including air pollution, wastewater and stormwater discharges, wetlands, and waste management.  In particular, the Manual sets parameters for selecting appropriate compliance and enforcement actions, pursuing administrative enforcement actions, calculating civil charges for alleged violations, and selecting and overseeing corrective actions.  Therefore, while important to DEQ, the Manual also offers regulated parties greater understanding of how DEQ is likely to approach compliance and enforcement matters.

DEQ’s proposed changes to the Manual include substantial editing and updating of several parts, but there are several significant organizational and substantive changes proposed as well:

  • Chapter 2 – General Procedures:  Changes to Chapter 2 would more clearly distinguish compliance guidance from enforcement guidance given their application to different DEQ operations and staff and different administrative actions.  To this end, DEQ plans to remove the entire discussion of general compliance procedures from Chapter 2 of the Manual to create a separate general compliance procedures guidance document.  However, no substantive changes are proposed at this time to the general compliance procedures themselves.  The general compliance procedures describe how DEQ notifies parties of alleged violations, determines informal versus formal compliance actions, handles challenges to alleged violations, administers informal dispute resolution, and sets timeframes for regulated parties to respond and for resolving compliance matters.  So, while being separated from the Manual, these procedures remain very important.  As to the current general enforcement procedures, they will remain as the sole content of Chapter 2 and are not being changed significantly. 
     
  • Chapter 3 - Appropriate/Consistent/Timely Enforcement:  DEQ is providing more specific timelines for many staff actions during the enforcement process.  The revised Chapter 3 would also incorporate by reference EPA’s High Priority Violator and Significant Non-Complier guidance, rather than replicating most of these documents in the Manual.  In addition to shortening this chapter considerably, this step allows the Manual to keep current with and reflect changes to these EPA guidance documents without related amendments to the Manual.
     
  • Chapter 4 - Civil Charges and Civil Penalties: DEQ seeks to consolidate similar guidance for assessing civil charges and penalties that currently is repeated in separate discussions of the major media (air, water, and waste) programs.  Existing variations of the meaning of “potential for harm” would be minimized to ensure consistent treatment of that concept across all media programs.  DEQ also is adding new guidance with associated penalty worksheets for discharges of oil into state waters.

  

DEQ’s announcement is a good reminder that the Manual offers valuable insights into DEQ’s internal workings, expectations and program implementation.  Facility owners and operators should take heed of these insights, not only to understand better how DEQ will proceed in compliance and enforcement actions, but to help minimize the risk of potential enforcement actions.  For similar reasons, owners and operators also should keep handy the expected new compliance procedures guidance document.

DEQ is taking public comment on the proposed changes through October 21, 2016.  Comments should be directed to Lee Crowell of DEQ at lee.crowell@deq.virginia.gov.  More evolution of the Manual can be expected in 2017 as well, when DEQ expects to make changes to Chapter 6 of the Manual, addressing adversarial administrative actions.


http://townhall.virginia.gov/L/ViewNotice.cfm?gnid=620; http://www.deq.virginia.gov/Programs/Enforcement/PublicNotices.aspx.