November 11, 2012
Via E-Mail
Erin Williams
Policy and Planning Coordinator
Virginia Board of Agriculture and
Consumer Services
Oliver Hill Building
102 Governor Street
Richmond, VA 23219
Re: Comments in Opposition to Coake Petitions for Rulemaking
Dear Ms. Williams:
The Virginia, Maryland, and Delaware Association of Electric Cooperatives (VMDAEC), on behalf of its Virginia members A&N Electric Cooperative, BARC Electric Cooperative, Central Virginia Electric Cooperative, Community Electric Cooperative, Craig-Botetourt Electric Cooperative, Mecklenburg Electric Cooperative, Northern Neck Electric Cooperative, Northern Virginia Electric Cooperative, Powell Valley Electric Cooperative, Prince George Electric Cooperative, Rappahannock Electric Cooperative, Shenandoah Valley Electric Cooperative, and Southside Electric Cooperative (the Virginia-Member Cooperatives),[1] along with Old Dominion Electric Cooperative (ODEC) (collectively, the Virginia Cooperatives) are pleased to submit these comments on the petitions for rulemaking submitted to the Board of Agriculture and Consumer Services (Board) by H. Ronald Coake. We urge the Board to reject the petitions.
Mr. Coake requests modifications to regulations issued by the Board under the Virginia Pesticide Control Act (Act). Specifically, Mr. Coake requests that the rules be modified to (1) require prior notice to and the written approval of landowners before application of herbicides on their property; (2) revoke the license of a business which applies herbicides without prior notice to and written approval of landowners; and (3) include provisions requiring restoration of property and environmental cleanup. The petition should be rejected. The Act does not authorize the Board to impose these requirements, and they are unnecessary, unduly burdensome, costly, and contrary to the public interest.
The Virginia Cooperatives have a substantial interest in the subject of the petitions. Overall, VMDAEC comprises most of the member-owned electric cooperatives in the three-state area. Thirteen cooperatives in Virginia, one in Maryland, and one in Delaware are members of the Association. The VMDAEC-member cooperatives serve more than 2 million people in the three states through 606,096 meters in Virginia; 52,087 meters in Maryland; and 83,735 meters in Delaware. About 91 percent of these meters serve residences.
ODEC is an electric generation and transmission cooperative. ODEC’s core business is generating, purchasing, and delivering electricity to wholesale customers, primarily its member systems. ODEC’s power is generated through a combination of owned baseload and peaking power plants that use coal, natural gas, and nuclear as their primary fuels, supplemented by purchased power including renewable resource technologies. ODEC’s 11 members[2] serve over 550,000 retail electric consumers (meters), representing approximately 1.2 million member-owners along 59,000 miles of line. The service territories served by ODEC’s members cover large portions of Virginia and the Delmarva Peninsula, ranging from the Atlantic shore to the Appalachian Mountains and from Delaware to the Virginia-North Carolina border.
The Virginia Cooperatives operate thousands of miles of electric distribution lines in Virginia. ODEC also owns transmission lines on the Eastern Shore. A notable portion of these lines are located in rugged, heavily forested, and/or mountainous terrain. There and elsewhere, trees and other vegetation can cause interruptions of service by growing or falling into power lines. A loss of service is not only costly and inconvenient to residential and commercial customers, it can be life-threatening to people on life support systems. Tree-related outages are among the leading causes of interruptions of electric service, during both normal operation and storm events. Also, contact between vegetation and power lines can lead to fires, which can pose a danger to local property owners and the environment.
Standards developed by the North American Electric Reliability Corporation (NERC) demonstrate the importance of vegetation management to the safety and reliability of electric transmission and distribution These standards, denoted FAC-003-1 “Vegetation Management” in NERC’s rules, require transmission line owners to control vegetation on transmission right-of-ways to prevent it from impacting overhead lines.
The Virginia Cooperatives use a combination of mechanical and chemical controls for right-of-way vegetation management in a process generally described as “Integrated Vegetation Management.” However, the use of mechanical vegetation control, cutting or mowing vegetation, promotes the growth of incompatible, tall growth vegetation because of the biological response of sprouting. When a single stem is cut, multiple sprouts can grow from the severed stump or the root system. Consequently, a repetitive cycle of cutting and sprouting causes the density of tall growth species to increase.
In many cases, herbicides are preferable to cutting or mowing because they control the entire plant and inhibit resprouting, reducing the need for repeated cutting. There are other disadvantages to cutting and mowing as well. Although it is commonly thought that mechanical/manual methods (power saws and mowing) have less environmental impact than herbicides, this overlooks the environmental and safety concerns of repeated cutting of vegetation. These concerns include compacting the soil by heavy equipment and exposing workers to petroleum products and their emissions (which are more toxic than many herbicides), risking injury to workers from sharp tools and equipment, and repeatedly altering wildlife habitat.
The Virginia Cooperatives typically use herbicides that have low toxicity to humans and animals. After the herbicide is absorbed by the plant, direct exposure to humans and animals is negligible. Any herbicide not absorbed by the plant is rapidly biodegraded by soil micro-organisms or light. Also, the Virginia Cooperatives often use selective applications, treating only those plants that are capable of growing tall enough to threaten power lines, and leaving low-growth plants (shrubs, herbs, grasses) untreated in order to minimize the amount of herbicide used per acre and to provide growing-space competition for tall-growth vegetation.
In sum, the use of herbicides to provide for public safety and avoid power outages is critically important. Placing unnecessary, burdensome, and costly impediments to the use of herbicides would not only threaten the safety and reliability of electric distribution and transmission, it would increase the cost of such maintenance and the resulting rates paid by the Virginia Cooperatives’ customers.
Mr. Coake’s petitions seek to amend two different provisions of the Board’s regulations. First, Mr. Coake asks to amend 2 VAC 5-670 to prohibit a person from applying, dispensing, or using any herbicide on property without notification of the planned herbicide application, including the Material Safety Data Sheet (MSDS), and without written permission from the property owner. Second, he requests an amendment to 2 VAC 5-680 to require revocation of the business license of any person who applies any herbicide on property without notification of the application that includes the MSDS and without written permission from the owner. The petition also asks for a new regulation to require restoration of property and environmental cleanup.
It appears that the Board lacks the legal authority to adopt any of these requested changes. First, the Act does not provide the Board with broad authority to adopt whatever regulations it desires and, more specifically, it does not permit a requirement for easement holders to obtain prior landowner notice and authorization for the application of a herbicide. To the contrary, the Act carefully circumscribes the Board’s regulatory authority. See Virginia Code Ann. §3.2-3906 (authorizing the Board to issue regulations regarding, inter alia, licensing of pesticide businesses, registration of pesticides, requiring reporting and recordkeeping and certification of applicators and technicians). Nothing in this list of the Board’s regulatory authority includes the authority to require the type of advance notice and prior approval requested by Mr. Coake’s petition.
In fact, Virginia Code §3.2-3906(6) specifically limits the power of the Board to impose advance notice requirements. This provision states that the Board may require advance notice of the use of herbicides to applications “in and around structures” (emphasis added). The Act says nothing about requiring advance notification in other circumstances, including along rural and suburban easements. By specifying that notice is to be provided for the use of a herbicide in and around structures, the Act implicitly precludes the adoption of a prior notice requirement in any other circumstance.
Second, the Act also does not authorize the Board to add to the list of statutory violations, penalties, and remedies included in the Act itself, as Mr. Coake has requested. The Act includes a comprehensive list of actions that constitute violations of the law and specifies the penalties and remedies available to the Board. Nothing in the Act indicates that the Board may expand upon these provisions to identify the failure to provide advance notice and obtain prior approval as a violation which can be remedied by revocation of a business license and a requirement to conduct remediation.
The Act specifically identifies which violations can result in revocation of a license, stating that the Board may “deny, suspend, modify or revoke a license after providing an opportunity for a hearing” when a licensee has committed one of 11 listed violations. See Virginia Code § 3.2-3940(A). None of the actions listed involve failure to provide advance notice of and obtain prior approval from a landowner for the use of a herbicide.[3]
Similarly, the Act contains no authority for the Board to impose an obligation to restore property or conduct environmental cleanup. Instead, the Act includes procedures for reporting harm or damages from the application of a pesticide or herbicide. Virginia Code § 3.2-3911. The Act does not, however, authorize the Board to require environmental remediation or cleanup.
In short, the Act carefully circumscribes the powers of the Board. If the General Assembly desired to have the Board issue regulations of the type sought by Mr. Coake’s petition, it could have said so. The Act does not authorize the Board to adopt the requested amendments; therefore, Mr. Coake’s petitions must be rejected.
In addition, under the Constitution of Virginia, the State Corporation Commission (SCC) is charged with the power and the duty of regulating the rates, charges, services, and facilities of railroad, telephone, gas, and electric companies. The licensing and regulation of electric utilities and facilities in Virginia is the exclusive province of the SCC. Approval to construct and operate a transmission line is granted under the authority of the SCC via issuance of a certificate of public convenience and necessity (CPCN). The propriety of the VDACS attempting to regulate an electric utility or requiring revocation of a license controlled by the SCC, the entity to which the Constitution and the Code of Virginia grant exclusive authority over the licensing and regulation of public utilities, is highly questionable.
Not only does the Board lack legal authority to make the requested changes, the amendments are unnecessary, unduly burdensome and costly, and contrary to public policy. At the outset, there is no reason to believe that Mr. Coake’s complaint about the one-time use of an herbicide on his property is representative of a broader issue requiring Board action. His letter appears to reflect a single dispute between himself and the easement holder. Regulations governing pesticides are not the appropriate mechanism – and the Board is not the appropriate forum – for addressing such disputes. Indeed, Mr. Coake has not shown any pattern of incidents or abuse that would support a change to existing regulations.
In fact, the Virginia-Member Cooperatives all use licensed applicators in accordance with existing Board requirements. Herbicides are applied consistent with label requirements, and steps are taken to avoid their misapplication. Moreover, it is the practice of many of the Virginia-Member Cooperatives to attempt to provide advance notice of their clearing activities (including the application of herbicides) and to take reasonable steps to accommodate “no-spray” requests made by landowners with legitimate reasons not to apply herbicides (organic farming or other agricultural reasons). Some of the Virginia-Member Cooperatives also use their web-sites to post spraying schedules and specification sheets for all chemicals used. There is no need to impose an additional regulatory burden of mandating prior notice of herbicide use.
If notices were required (and they should not be), an MSDS would not be an appropriate notice document to provide. MSDSs are typically used to convey information about the use and hazards of a chemical to a sophisticated and knowledgeable audience. They are not designed to educate the broader public. This fact is demonstrated by Mr. Coake’s use of the MSDS to misrepresent and overstate the hazards of the herbicides allegedly applied to his property.[4]
Even more problematic is the request to mandate prior approval each time a herbicide is applied. Such a requirement is both impractical and unnecessarily burdensome. Many, if not all, existing easements and/or “membership agreements” with the Virginia Cooperatives explicitly provide that the easement holder has the right to maintain the right-of-ways and keep them clear of tree and brush growth. In other words, the landowner has already authorized the use of herbicides in the easement document or membership agreement.
Right-of-ways typically extend over a multitude of properties with different (and constantly changing) owners. These include properties with absentee owners, abandoned properties, properties with multiple owners, estates that have been unsettled for generations, and properties that have recently had changes in ownership. It would be a nearly impossible task, not to mention incredibly burdensome and expensive, to contact and obtain prior approval from these unavailable or unknown owners each time herbicide needs to be applied.
Requiring prior notice and approval from each landowner for herbicide use would make it impossible for the Virginia-Member Cooperatives to maintain any sort of coherent, comprehensive, and cost effective herbicide application plan. Such a rule would create a geographic patchwork of properties that did or did not permit spraying. There would be thousands of landowners to contact. The written notice process would require a dedicated staff to determine mailing addresses, track letters out, track letters received, determine the nature of the response, handle research and field marking (and re-marking when flags or signs are removed or lost) of property boundaries relative to the right-of-way, and the production of paper maps for use in the field by the applicator. Simply put, requiring prior approval of the pesticide use would impair and greatly increase the cost of a utility’s ability to maintain its right-of-ways to ensure reliability and safety. For the Virginia-Member Cooperatives these additional costs would be borne by their ratepayers.
Moreover, matching right-of-way boundaries with specific property boundaries also is impractical. In many areas, the delineation of property boundaries is uncertain. It is not feasible or cost effective to survey and mark each landowner’s property boundary, which the requested amendment would effectively require.
Consumers demand that their power be restored promptly after an outage and demand a continued supply with a minimum of interruptions. Right-of-way herbicide management allows utility crews to reach trouble spots faster to restore power or correct other problems promptly. If sections of right-of-ways are left unmaintained due to inconsistent landowner authorizations, both power quality and restoration times could be severely adversely affected.
Finally, it is both unnecessary and beyond the expertise of the Board to issue regulations requiring environmental remediation from alleged harm resulting from herbicide application. The Board is not the proper state agency to involve itself in environmental remediation, and there are existing civil and regulatory laws which amply protect property owners from the misapplication of herbicides and any resulting harm.
* * *
The Virginia Cooperatives appreciate this opportunity to comment on the requested amendments to the Board’s regulations. If you have any questions, please do not hesitate to contact me.
Richard G. Johnstone Jr.
Executive Vice President
The Virginia, Maryland & Delaware Association of Electric Cooperatives
4201 Dominion Boulevard
Glen Allen, VA 23060
(804)-346-3344
[1] Several of the Virginia-member Cooperatives also are submitting separate Comments of their own.
[2] ODEC’s Virginia members are: A&N Electric Cooperative, BARC Electric Cooperative, Community Electric Cooperative, Mecklenburg Electric Cooperative, Northern Neck Electric Cooperative, Prince George Electric Cooperative, Rappahannock Electric Cooperative, Shenandoah Valley Electric Cooperative, and Southside Electric Cooperative.
[3] The Virginia Cooperatives note that the requested amendment is vague in suggesting some broad power of the Board to revoke an entity’s “business license.” The Act only authorizes revocation of the license or certificate issued by the Board (for the 11 types of statutory violations), not other business licenses issued by other state authorities.
[4] While the Virginia Cooperatives oppose a mandate to provide prior notice, if the Board were to adopt this requirement, a better alternative would be to provide the herbicide’s label information regarding uses, application, precautions, and environmental hazards.