From a policy perspective, APG-578 creates more problems than it resolves in terms of environmental, safety, and economic impacts. In this respect, the guidance is actually dangerous and has the potential to become disruptive from a compliance, public safety, and economic perspective. This issue merits an assessment of such impacts and a thorough procedural review as would occur if there were a proposed change in regulation, which is what DEQ is attempting through its guidance. For these reasons, DEQ should withdraw APG-578, and reevaluate and plan an orderly consideration of the issues involved.
Legal Deficiencies
The guidance materially alters the codified definition of “Emergency” in Virginia regulations (9VAC5-540-20 and 9VAC5-80-1110) without following required Administrative Process Act procedures (Va. Code Ann. §2.2-4000 et seq.). The regulations explicitly define "Emergency" to include “a failure of the electrical grid.”
Virginia law establishes that the Department of Environmental Quality (DEQ) cannot supersede specific enumerated conditions in regulations through interpretive guidance that contradicts plain regulatory text. Virginia courts consistently hold that guidance documents do not have the force of law and cannot contradict or override clear regulatory provisions. Under the Virginia Administrative Process Act, guidance documents are limited to interpreting or implementing existing statutes and regulations, and courts review agency interpretations of law de novo, affording no special deference when regulations contain unambiguous language.
If DEQ seeks to redefine “Emergency,” it must follow proper rulemaking procedures. Attempting substantive changes through guidance creates compliance uncertainty and disrupts commerce while violating procedural due process requirements.
Economic and Environmental Considerations
Any reasonable analysis would conclude that the guidance’s incremental capital, operational, and compliance costs substantially exceed reasonable cost-per-ton metrics for pollution reduction compared to regulated emergency generator use during events beyond operator control. These costs ultimately burden customers and discourage investment in the high-efficiency, high-reliability facilities Virginia needs and actively seeks to attract.
Improper interpretation of codified definition of Emergency
APG-578 states that the legal basis for its new interpretation is found in the terms of the regulation text – specifically understanding the statutory language in a way “that gives meaningful effect of each word of the definition of “emergency . . . .” While purportedly acknowledging an important canon of statutory construction, the guidance document then ignores that very canon, and another canon that Virginia courts apply in the interpretation of law.
Both of the above-cited definitions define “Emergency” as “including” a list of specific and enumerated situations that meet the definition of “Emergency.” Both definitions of “Emergency” define the term to include “[a] failure of the electrical grid.” The inability of electrical grid to provide electrical power to a customer is a “failure of the electrical grid.”
Despite the above conditions defining an “emergency” condition as is codified in Virginia regulation, DEQ is claiming in its improper guidance that a “failure of the electrical grid” is not an emergency. DEQ guidance documents cannot adopt changes to regulations.
APG-578 purports to interpret the general portion of the definition as a basis to supersede the remainder of the regulation. The supporting argument justifying the interpretation is directly contradicted by Virginia judicial precedents.
Another well-established canon of statutory construction in Virginia law is that specific terms control over general terms. The Virginia Supreme Court has ruled that “[w]hen general and specific words are grouped in the same statute, the general terms are limited by the specific ones.” (See Hon. Afshin Farashahi, Yes Words Matter: Statutory Interpretation in Virginia, Virginia Lawyer, Volume 70, October 2021, p.29, citing Marlin v. Commonwealth, 224 Va. 298, 302 (1982)).
By contrast, the legal justification for the apparent conflict between the APG interpretation and the plain language of the regulation is the false notion that general language controls the specific language. This is how APG-578 claims to can cancel and render meaningless the enumerated definition of “Emergency” as including “a failure of the electrical grid.” This flawed reasoning for interpreting a regulation is contradicted by Virginia judicial precedents.
The regulatory text is quite plain and clear on what constitutes an “Emergency”. DEQ’s attempt to refute this definition by introducing caveats through guidance that contradict the codified regulation is an unlawful attempt to redefine “Emergency”.
The guidance misinterprets conditions that may or may not be foreseeable to a “power source” (the local utility) as under the control of a “source” (a behind the meter generator).
DEQ attempts to conflate the Virginia electric utilities’ responsibility to provide reliable power with electric customers’ ability to control the services they receive. This is an illogical interpretation. Virginia regulation defines “Emergency” from the perspective of the “source” – the utility customer with a distributed generator that is dealing with “a failure of the electrical grid” beyond its control. In a first world economy, 24/7/365 electric power reliability is vital to the health, safety, and well-being of citizens. Any loss of power throughout the year is unexpected and not foreseeable from the stand point of the electric customer.
Consider a retail store that orders its holiday season merchandise months in advance. Then, two weeks before Black Friday or some other time during the holiday season, the local utility suddenly announces that there will be an extended outage in the area. Under DEQ’s putative guidance, that situation would not be considered an emergency. Tell that to the retail store sitting on inventory that it expected to sell and now may not be able to move.
Even two weeks’ notice in this situation is sudden and not reasonably foreseeable, and of course, the outage is certainly outside of the control of the owner of the source. The guidance tells the source to ignore all the plain language of the regulation defining an emergency as established above. According to DEQ’s proposed interpretation, such situations will not be interpreted as emergencies despite the language in the regulation.
What DEQ is seeking to do by taking a short cut with its guidance is deeply disruptive to the community, reflects a serious lack of information, and is an attempt to achieve a regulatory modification outside the proper process. DEQ should pull the guidance back immediately. If there is a view that change to the regulation is warranted, DEQ must respect procedural due process and follow the Administrative Process Act.
The potential for far-reaching unintended and dangerous consequences is very high.
According to the proposed guidance, when a utility announces that an outage will begin two weeks hence, a source has the option to rent portable emergency generators instead of utilizing the emergency generator onsite. That may sound like a reasonable approach, but in reality, DEQ has no idea about the availability of portable emergency generators to meet customers’ needs. Importantly, the process for approving guidance does not require that DEQ justify or explore the consequences of its action. It is clear that DEQ as not thought things through.
Without exaggeration, here is just one example of a very real, even likely, potential consequence of DEQ’s guidance: Under the situation in which the utility announces an outage two weeks hence, because of APG-578 we can expect that whatever available portable generators are in the area will flock to the affected area. That is in fact what APG-578 specifically recommends to address such short-term issues. Problem solved, right? Not so fast.
What happens then when a significant flood hits, such as what occurred in 2024 in Buchanan County, or severe weather in Virginia Beach that brings a wave of destruction? Where are the available portable emergency generators those regions will need to recover? The portable generators that are desperately needed for disaster recovery are sitting alongside the otherwise operational on-site generators that are prohibited from operation pursuant to the APG-578 guidance.
Without even considering the potential for impacts emergency preparedness or disaster recovery, DEQ’s new guidance will create a dangerous disruption that will adversely impact human health and safety, and Virginia’s ability to recover from catastrophes.
Recommended Framework
DEQ can achieve its environmental and public health objectives more effectively by applying the existing “under the control of the owner/operator” standard:
This approach ensures DEQ transparency, maintains community protections, provides regulatory certainty for capital planning, and preserves permit process integrity for evaluating site-specific conditions where non-emergency operations are contemplated.
We urge DEQ to withdraw APG-578 and pursue any desired regulatory changes through proper Administrative Process Act channels.