9/25/2017 2:53 pm Date / Time filed with the Register of Regulations | VA.R. Document Number: R____-______ |
Virginia Register Publication Information
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Transmittal Sheet: Response to Petition for Rulemaking
Initial Agency Notice
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Agency Decision
Promulgating Board: | Air Pollution Control Board |
Regulatory Coordinator: | Cindy Berndt (804)698-4378 cindy.berndt@deq.virginia.gov,debra.harris@deq.virginia.gov |
Agency Contact: | Karen G. Sabasteanski (804)698-4426 ghg@deq.virginia.gov |
Contact Address: | Department of Environmental Quality 629 East Main Street P.O. Box 1105 Richmond, VA 23218 |
Chapter Affected: | |
9 vac 5 - 80: | Permits for Stationary Sources |
Statutory Authority: |
State: Section 10.1-1308 of the Code of Virginia Federal: Clean Air Act (Sections 110, 112, 165, 173, 182 and Title V) 40 Code of Federal Regulations, Parts 51, 61, 63, 63, 70 and 72 |
Date Petition Received | 03/17/2017 |
Petitioner | Susan V. Coleman |
As a citizen of the Commonwealth of Virginia, I hereby petition the Department of
Environmental Quality's Air Pollution Control Board to simultaneously promulgate both
an emergency rulemaking and a formal rulemaking to limit and reduce total carbon dioxide
pollution in the Commonwealth by 30% by 2030, from its largest source, electric generating
units.
The Air Pollution Control Board has clear legal authority to limit and reduce carbon
pollution and other greenhouse gases (GHG), by powers vested by the Virginia Code
(§§ 10.1-1300-1308).
Specifically, Virginia law provides that the Air Board \"shall have the power to promulgate
regulations, including emergency regulations, abating, controlling and prohibiting
air pollution throughout or in any part of the Commonwealth . . ." (§ 10.1-1308(A)).
Virginia law clearly encompasses carbon dioxide in its legal definition of air pollution:
\"Air pollution means the presence in the outdoor atmosphere of one or more substances
which are or may be harmful or injurious to human health, welfare or safety, to animal
or plant life, or to property, or which unreasonably interfere with the enjoyment
by the people of life or property" (§ 10.1-1300).
Moreover, the Air Board has already identified carbon dioxide and other GHGs as a
category of emissions that shall be \"subject to regulation" (9 VAC 5-85-30(C)).
Most importantly, limiting and reducing carbon pollution would achieve the Board's
charge to prevent harm to \"public health, safety or welfare; the health of animal
or plant life; [and] property, whether . . . recreational, commercial, industrial,
[or] agricultural" (9 VAC 10 Chapter 10).
As a nurse, I am working in the public health sphere and believe the Air Board should
limit and reduce carbon pollution to protect human and economic health, because:
Carbon pollution is an immediate threat to human health and the economy: sea level
rise makes Virginia's coast one of the most imperiled places in the nation. As sea
levels continue to rise, storm surges become higher as well, making most of the Hampton
Roads region vulnerable to hurricane flooding. Without significant infrastructure
investment, Tangier Island may be uninhabitable by the end of the century. Inland
areas will see worsened flooding as well, due to heavy storm precipitation, which
increased 27% between 1958 and 2012 across the Southeast. Henry Paulson's Risky Business
Institute estimates there will be $17.5 billion in additional sea-level rise damage
and storm damage in Virginia by 2030. We have a duty to exhibit moral leadership.
Warmer temperatures also increase ozone levels, aggravating lung diseases such as
asthma, including in Richmond, which already suffers some of the worst asthma rates
in America. This issue significantly and disproportionately impacts the youth of Virginia,
both in productivity and in quality of life.
Carbon pollution immediately threatens plant and animal life. Climate change will
likely reduce the productivity of livestock, which comprise the bulk of Virginia's
farm commodities. Hotter summers will likely reduce corn yields, one of Virginia's
largest crop commodities. In addition, the threat of emerging zoonotic diseases due
to climate changes not only threatens livestock, but human health. Veterinary, environmental
and human health are all inextricably linked.
Injury to property, both public and private, is already occurring today: the Norfolk
Naval Base is impacted in a variety of ways, including impaired electricity availability,
transportation inaccessibility, and piers that must be raised at a cost of $60 million
each. Weakened armed forces bases poses a great risk to national security.
In addition to concerns of public health and safety, climate change wreaks havoc
on cross-sector stakeholders caused by displacement, transportation and utility interruptions,
and increases in disease incidence related to flooding conditions and disrupted housing.
The cost of prevention, whether measured in dollars or lives impacted, is so much
less than that of attempting to recover after tragedy.
The Air Board can cost effectively limit and reduce carbon pollution by 30% from 2015
levels by 2030 because:
Virginia already reduced carbon emissions by a similar amount between 2000 and 2015,
while the state economy continued to grow.
30% by 2030 would be similar to the amount required in Virginia by the U.S. EPA's
Clean Power Plan, which underwent significant economic analysis, and which Governor
McAuliffe already supports.
Doing so would benefit the economy, because clean energy resources like solar, wind,
and energy efficiency are now as affordable as, or more affordable than, conventional
carbon-based energy resources.
For the above-stated legal, economic, and human health and safety reasons, I hereby
petition the Air Pollution Control Board to initiate an emergency and formal rulemaking.
Agency Plan
The State Air Pollution Control Board, based on discussion and action at its March
16, 2017, meeting and as required by Virginia law, is submitting notice of the petition
for publication in the Virginia Register of Regulations on April 17, 2017, and announcing
a public comment period. The public comment period begins on April 17, 2017, and closes
on July 17, 2017.
Following receipt of comments on the petition, the Board will consider whether to
grant or deny the petition for rulemaking. Board consideration will occur at a meeting
of the Board. Board book material on the matter will be available approximately 3
weeks in advance of the meeting.
Publication Date | 04/17/2017 (comment period will also begin on this date) |
Comment End Date | 07/17/2017 |
Take no action
Agency Response Date | 09/25/2017 |
In light of Executive Directive 11 and the ongoing rulemaking associated with that
directive, the Board, at its meeting on September 21, 2017 approved the staff's recommendation
to deny the petitioner's request to initiate a rulemaking. The Board considered the
material provided in the Board book, which included a summary of comments received
on the petition and the draft responses to the comments in addition to the following
basis of the staff's recommendation:
Governor McAuliffe issued Executive Order 57 (EO 57) on June 28, 2016. Under EO 57,
he directed the Secretary of Natural Resources to convene a work group to study and
recommend methods to reduce CO2 emissions from electric power facilities and grow
the clean energy economy within existing state authority. The group consisted of the
Secretary of Natural Resources, the Secretary of Commerce and Trade, the Director
of DEQ, the Director of the Virginia Department of Mines, Minerals and Energy, and
the Deputy Attorney General for Commerce, Environment, and Technology.
The group facilitated extensive stakeholder engagement over the last year, including
6 monthly meetings that began on August 31, 2016 and ended on February 28, 2017. Each
public meeting lasted between two and three hours, and the meetings consisted of presentations
from members of the public. The presentations were voluntary, and all members of the
public were invited to send suggested topics and present information to the Secretary
of Natural Resources' office. In total, the Work Group received over 40 presentations.
In addition to the public meetings, the group also facilitated a 3-month public comment
period from February 1 to April 30, 2017. In total, the group received over 8,000
written comments.
The Work Group compiled its recommendations and submitted a final report to the Governor
on May 12, 2017. The first recommendation of the "Report and Final Recommendations
to the Governor" was that the Governor consider taking action via a regulatory process
to establish a "trading-ready" carbon emissions reduction program for fossil fuel-fired
electric generating facilities that will enable participation in a broader, multi-state
carbon market.
Subsequently, Governor McAuliffe issued Executive Directive 11 (ED 11), "Reducing
Carbon Dioxide Emissions from the Electric Power Sector and Growing Virginia's Clean
Energy Economy" on May 16, 2017. ED 11 directs the Director of DEQ, in coordination
with the Secretary of Natural Resources, to take the following actions in accordance
with the provisions and requirements of Virginia Code § 10.1-1300 et seq., and Virginia
Code § 2.2-4000, et seq.:
1. Develop a proposed regulation for the State Air Pollution Control Board's consideration
to abate, control, or limit CO2 from electric power facilities that:
a. Includes provisions to ensure that Virginia's regulation is "trading-ready" to
allow for the use of market-based mechanisms and the trading of CO2 allowances through
a multi-state trading program; and
b. Establishes abatement mechanisms providing for a corresponding level of stringency
to limits on CO2 emissions imposed in other states with such limits.
2. By no later than December 31, 2017, present the proposed regulation to the State
Air Pollution Control Board for consideration for approval for public comment in accordance
with the Board's authority pursuant to Virginia Code § 10.1-1308.
In order to meet the Governor's directive in a manner that affords the public the
maximum opportunity for participation, the department has initiated a regulatory development
process in accordance with the Administrative Process Act (APA) that will meet the
Governor's stated deadline of December 2017. As part of this process, DEQ established
and convened a regulatory advisory panel (RAP) representing interests from a cross-section
of stakeholders to solicit input and provide assistance to the department in the development
of proposed regulations. Once the RAP has completed its work, and a proposal is available
for public comment, a clearer picture of the best path forward will emerge and inform
the details of any final decisions.