Members of the Virginia State Water Control Board at a meeting in December, 2019. (Ned Oliver/ Virginia Mercury)
Following the State Air Pollution Control Board’s denial of an air permit for a compressor station that would anchor an offshoot of the Mountain Valley Pipeline, Republicans are proposing to limit the powers of the citizen boards that oversee Virginia’s major water, air and waste decisions.
Proponents, including manufacturers and other business interests, say the changes are needed to promote “certainty” in the state’s permitting processes.
“These citizen boards, everyone knows, are appointed by the governor, so they swing back and forth probably more wildly than business likes,” said Del. Rob Bloxom, R-Accomack, during a Feb. 2 subcommittee hearing. “For business, they just want to know what the rules are and how to get a permit. And I think the citizen boards have become a stumbling block or a hurdle that is unknown.”
But opponents say the boards rarely reject permits or go against state agency advice, and that the bills would strip needed transparency from the review process.
“The citizen boards are not a barrier to the issuance of permits to industry,” said Patrick Fanning, an attorney with the Chesapeake Bay Foundation. “They actually provide an important level of transparency and opportunity for public input, and they ensure that important decisions are not made behind closed doors.”
The State Air Pollution Control Board and State Water Control Board have over the years intermittently clashed with the Department of Environmental Quality over matters such as the Mirant power plant in Alexandria and Dominion’s Virginia City Hybrid Energy Center in Wise County, both more than a decade ago.
But a Virginia Mercury review of agendas and minutes for all air and water board meetings since 2002 found only four instances over the past 20 years in which either board has gone against a permit decision recommendation by the Department of Environmental Quality.
Since 2002, the water board has rejected DEQ recommendations three times. In 2003, it denied permits for two trout production facilities run by Casta Line Trout Farms in Craigsville and Middlebrook. In 2006, it denied both a permit extension for the never-built King William Reservoir and a permit for the mixed-use Galleria development in Chesterfield County. The Casta Line and Galleria decisions were subsequently reconsidered and reversed.
Over the same period, the air board has rejected a DEQ permit recommendation only once: this past December, when the board denied an air permit for the Lambert Compressor Station in Pittsylvania that would serve as an anchor for an offshoot of the Mountain Valley Pipeline known as the Southgate extension.
The State Water Control Board has at other times voted to deny projects permits — including recent plans for Cranston’s Mill Pond in James City County — in line with DEQ recommendations.
“Very rarely does the board deviate from DEQ’s recommendations,” former long-time water board member Robert Wayland told lawmakers during the Feb. 2 hearing. “There’s really no factual basis for the suggestion that the boards go off and do wild things, that they delay the process, that permits are not issued.”
Several Republican lawmakers, however, are still pushing for changes.
House Bill 1261 from Bloxom would take permitting authority away from the air, water and waste boards and allow the Senate Rules Committee and House Speaker to appoint members instead of solely the governor. Senate Bill 657 from Sen. Richard Stuart, R-Stafford, would strip permitting authority from the air and water boards, limiting their power to the issuance of regulations. Senate Bill 81 from Sen. Bill Stanley, R-Franklin, would limit what factors the air board can consider when making certain decisions. And House Bill 1204 from Majority Leader Terry Kilgore, R-Scott, would remove the air board’s decision-making authority over minor new source review permits, which under the federal Clean Air Act govern lesser but still significant forms of pollution.
Neither Stuart nor Stanley’s offices responded to questions sent to them Friday.
Regulated businesses have complained that Virginia’s environmental permitting process, and particularly its citizen air and water boards, are unfairly burdening them and slowing down projects.
“We are the only state in the country that gives a politically appointed citizen board this much power,” said Brett Vassey, executive director of the Virginia Manufacturers Association.
Both Vassey and Virginia Poultry Federation President Hobey Bauhan said that permitting power should instead be vested in DEQ, which Vassey said “does an outstanding job of holding us accountable.”
“We need some structural changes to ensure that permitting decisions stay within legal and regulatory parameters and are based on sound science and the professional judgment of the DEQ staff,” said Bauhan.
Virginia’s citizen boards are a unique feature of its environmental oversight system. The governor-appointed State Water Control Board was first created by an act of the General Assembly in 1946, with the State Air Pollution Control Board following in 1966.
In 2007, following the water board’s high-profile denial of the King William Reservoir permit, then-Del. Steve Landes, R-Augusta, and then-Sen. Phillip Puckett, D-Russell, proposed combining all three of the citizen boards and stripping them of permitting power.
The proposal, which was supported by former Democratic Gov. Tim Kaine’s administration, ultimately passed with the requirement that the General Assembly re-approve it in 2008. Amid controversy, the bill was later watered down to restore the boards’ individual permitting power but amend the permitting process.
“Legislation to amend the citizen boards, that’s a staple of Virginia politics,” said Peggy Sanner, Virginia director for the Chesapeake Bay Foundation.
As in 2007 and 2008, environmental groups this year are arguing that the citizen boards offer Virginians more benefits than drawbacks, particularly in the window they offer into DEQ’s permitting processes.
“We think these discussions, this decision-making should happen in the full light of day,” said Emily Francis of the Southern Environmental Law Center.
While most environmental permits are handled administratively within the agency, more controversial decisions can be referred to the air and water boards by the DEQ director if more than 25 individual requests for board consideration are made and if those requesters “raise substantial, disputed issues relevant to” the permit decision.
Board consideration not only triggers hearings on the matter but a readily available public record of DEQ decision-making.
The boards are “something Virginia should be proud of,” said Sanner. “To me, they’re necessary because without them, you could create a situation where there is a kind of cozier relationship between the regulated industry and the regulators. I’m not being critical of DEQ, but I do think it is helpful and necessary for good governance for citizens to have an opportunity to see and understand what goes on and to weigh in.”
Bloxom, however, said Feb. 2 that he believes “DEQ’s public participation process is thorough.”
The board consideration “is just an extra step that is not needed,” he said. “I think this is a good move for the business climate.”
Both Senate proposals are scheduled to come before the Agriculture, Conservation and Natural Resources Committee Tuesday. While not yet docketed, the House proposals are expected to come before that chamber’s Agriculture, Chesapeake and Natural Resources Committee Wednesday.
The bills are likely to face some resistance: longtime Del. Ken Plum, D-Fairfax, voiced concerns before the House Natural Resources Subcommittee about Bloxom’s proposal, saying that if there are problems with the current system a long-term study might be a better course.
“We have the system that we have now because when bureaucrats dominated it, the public, including businesses, didn’t feel like they had a voice,” he said. “I suggest to you if you go with this proposed change, you’re going to get back to the same old cycle again where your fight’s not going to be with the board, your fight’s going to be with the bureaucrats.”
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