We are encouraged to see the following language being included and wondering how you defend against those staunch advocates that want WADOE or NJDEP only?

Under the "Additional State, Regional, or National Certification Programs" 

When submitting nutrient and sediment removal efficiencies from additional States, Regions or National programs, how do applicants know what the criteria for approval is if its on a case by case basis?    This sounds like an open ended process that needs to be better explained to ensure repeatability.    

Say if the Dept accepts an MTD based on an approval from Maine, Maryland, New Hampshire, Rhode Island, Vermont, Connecticut or any other state - wouldn't that allow any other MTD that has been through that particular States certification program to be approved?   Wouldn't it be best if you qualified these States ahead of time and made it easier on the applicant?    Seems like Maryland is an easy place to start for the Dept, its a neighboring state, focused on nutrients and TSS, in the Chessapeake Bay area, and is a self certifying state with its own monitoring protocol program.     This is easily on par with your assignment of 40% TP to NJDEP certified 80% TSS removal MTDs.

No attachment 1 was provided in the guidance document (as referenced below).     Please provide this so that people can review.

Application Process: To apply for approval in Virginia, complete the attached form entitled “Proprietary BMP Registration Statement” (Attachment 1) and submit it to the Department. Once the registration statement and supporting documentation are received, the Department will review the submission and if approved, assign the applicable percent TP removal efficiency based on Table 1. After the percent removal has been assigned, this value will be added to the Virginia Stormwater BMP Clearinghouse and can be used to meet the water quality design criteria requirements.

Contech Engineered Solutions LLC is appreciative of this opportunity to comment on the Department's proposed Guidance Memo No. 21-2006. Virginia's stormwater quality compliance program has reached a crucial junction respective to the evaluation of manufactured treatment devices (MTDs) with the proposed guidance. It establishes a stronger, more robust standard that will ultimately prove more protective of water quality. We support the proposal and wish to make several comments and/or recommendations to be applied during the guidance's ultimate implementation. 

1) The Department is to be commended for proposing a policy that incentivizes performance testing consistent with the nationally relevant protocols of the Technology Acceptance Protocol- Ecology (TAPE) and New Jersey Department of Environmental Protection (NJDEP), encourages innovation within the stormwater BMP space, and rewards solutions with robust total phosphorus (TP) removal data by increasing the TP cap from 50 to 65%.

2) The proposed guidance still lacks critical MTD sizing information. We recommend the Department explicitly reference the published hydraulic loading rate (HLR) from TAPE or NJDEP when approving technologies for use. This will help ensure solutions are sized in accordance with their referenced testing. 

3) Contech recommends  the Department reduce the TP credit for solutions maintaining laboratory only Total Suspended Solids (TSS) data from 40 to 30%. There is no technical justification that 80% TSS reductions determined a via laboratory test will result in 40% TP reductions. Implementing this recommendation would also incentivize field monitoring where TP reductions can be best quantified.

4) Contech understands why DEQ has included a case-by-case clause for solutions not maintaining TAPE or NJDEP Certification. However, we would caution the Department from deviating the established protocols. Making exceptions potentially undermines the process since solutions not tested to TAPE or NJDEP may have a sizing advantage that seemingly makes them cheaper and more appealing to end users versus those that have been robustly tested. That advantage often comes at the expense of being less protective of water quality. The TAPE and NJDEP Protocols are widely recognized as the most robust field and laboratory-based protocols across the country. Both stand as the foundation for the national BMP testing verification protocol, known as the Stormwater Testing and Evaluation for Products and Practices (STEPP), currently being developed. STEPP is supported by the National Municipal Stormwater Alliance (NMSA), Environmental Protection Agency (EPA), TAPE, NJDEP, American Society for Testing and Materials (ASTM), Water Research Foundation (WRF), Stormwater Equipment Manufacturers Association (SWEMA), and others. It is essential to maintain a consistent evaluation process for all technologies to ensure a level playing field for all manufacturers.  

Moving forward, we urge the Department to fully adhere to the proposed guidance to avoid undermining the validity of the process. This new, stronger guidance document should create transparency, consistency, and clarity within the program as it pertains to the evaluation and approval of proprietary treatment solutions, and we applaud the Department for moving this forward. Please do not hesitate to contact me with additional questions concerning this issue. Thank you once again for the opportunity to comment. 

Sincerely, 

Jacob Dorman

Contech Engineered Solutions

The State Law passed by VA states that documentation from another state, regional, or national certification program has verified and certified its nutrient and sediment removal effectiveness.  DEQ, however, is only allowing approval of MTDs by New Jersey and Washington drastically limiting the ability for BMPs to be used in VA.  NJCAT is a nationally recognized program that many States rely on to approve BMPs such as DE, ME and MA.  

Obviously some manufacturers are pushing to limit competition by encouraging DEQ to severely limit how they approve BMPs using only two States for approval.  However, DEQ should look closely at the results and testing provided for all BMPs even from NJ or WA rather blindly taking another State's approval for nutrient and sediment removal.  Under NJDEP, BMP technologies may be verified by NJCAT and follow all testing protocols required by NJDEP but excluded from being approved by NJDEP under a technicality as to how NJDEP views the technology.  This has an adverse affect on having technologies that developers and engineers have relied on since 2014.   

By limiting technologies, the citizens of VA will ultimately pay higher prices for housing, development and maintenance costs. 

We hope that VA DEQ strongly consider expanding the ability of Verified Technologies by NJCAT or approved by other States to be considered and approved by Virginia. 

Thank You.

James M. Clark, P.E.   

Given the proposed changes in the proposed guidance memo, there are several practices currently on Virginia’s Stormwater BMP Clearinghouse that meet the 80% TSS removal, have been assigned a TP removal and have been verified by NJCAT, but cannot be certified by NJDEP as they are considered a constructed practice under NJDEP’s program.  What this means is that these formerly approved devices (which are widely used and very cost effective for the industry) will no longer be able to be used at the current TP removal simply because they can’t be certified by NJDEP.  While DEQ allows TP removal percentages via the use of constructed practices (i.e. Nonproprietary BMP’s), the percentage of removal varies greatly from what is currently approved and the constructed practice.  Therefore, DEQ should consider reconciling the disparity between these currently approved MTD’s and the TP removal assigned in the equivalent constructed practice.  This change causes some components to no longer be viable in the competitive market and has significant unintended consequences. 

In addition, it is suggested that the Nonproprietary and Proprietary BMP definitions in the guidance document be revised to be consistent with the definitions provided by NJDEP and TAPE since those entities are the standard for approval. 

Lastly, the Nonproprietary and Proprietary BMP definitions in the guidance are somewhat broad and should be revised to define what specific practices are being considered in this guidance (i.e. hydrodynamic devices and filtering practices).  The use of the phrase “protected by trademark or patent or copyright” could potentially preclude certain materials from being used in a nonproprietary practice because the material has a trademark or copyright when that wasn’t the intent of the guidance document.  There are various nonproprietary practices that utilize materials that have a trademark, patent or copyright. 

Thank you,

Ranee Buck

The following comments are submitted on behalf of the Stormwater Testing and Evaluation for Products and Practices (STEPP) program, which is an initiative led by the National Municipal Stormwater Alliance (NMSA) to establish a national performance testing verification program for proprietary products and public domain practices in the stormwater sector.  NMSA represents organizations in 24 states (including Virginia) that focus on the needs and interests of Municipal Separate Storm Sewer System (MS4) programs. 

Comments:

The guidance states that “the Code of Virginia permits the use of proprietary BMPs when another state, regional or national certification program has verified and certified the BMPs nutrient or sediment removal effectiveness.”  STEPP appreciates and supports Virginia’s recognition of national programs focused on the performance of stormwater products and practices, with STEPP being the sole example.  However, while STEPP supports Virginia’s requirements for performance verification, STEPP does not support Virginia’s requirements for performance certification.  This is for two reasons. 

First, STEPP – being the only national performance program in development in the stormwater sector – does not now, nor will ever provide a certification of performance.  STEPP will only provide a verification of performance based upon our approach to provide a platform for consistent, robust and transparent performance testing.  STEPP works under the premise that verified performance testing results will be used by states and jurisdictions to certify the use of stormwater products and practices in their programs based upon the verified performance testing results in the context of their state performance standards.  Virginia is in error when suggesting that a national program (STEPP) will provide a certification for use.  The language should be corrected to read “national verification program”.   

Second, Virginia should develop a process to review verified performance test results generated by state, regional or national verification programs and provide certifications for product/practice use based upon this process.  It is not appropriate to defer to other states for certification as the performance standards for stormwater products and practices differs by state, and sometimes by jurisdiction as well.  By allowing use of stormwater products and practices in Virginia based upon the context of performance standards in other states, Virginia may be allowing for products and practices to be used in the Commonwealth that do not perform at a level that is consistent with the performance standards established by Virginia DEQ.  If Virginia continues to defer to other certification programs (as opposed to their own certification program), DEQ should develop a detailed technical justification that illustrates how the use of these certification programs is appropriate in the context of the Commonwealth. 

The STEPP program is currently working with states who are performing technical analyses to determine if and how testing verification results generated in other locations and programs can be applied to their own programs.  STEPP would welcome the opportunity to work with VA DEQ in a similar capacity.  It is the view of the STEPP program that the validity of performance testing verification results should not be limited to the context of a single location.  To support this view, STEPP is currently engaged in an effort to better understand how verified performance test results can be ported across climates and regions in a manner that is technically sound. Regardless of the outcomes of this effort by STEPP to understand the portability of verified performance test results, it is the responsibility of states and/or jurisdictions to determine if the verification results are acceptable to their programs before certifying the use of these products and practices within their programs.