These comments are submitted by the Virginia Pest Management Association (VPMA).  VPMA, in operation since 1948, is the trade association for pest management companies in Virginia.  VPMA represents 225 pest management companies in Virginia. The mission of VPMA is to safely protect the health and property of the Commonwealth’s general public by promoting ethical and environmentally responsible business and pest management practices among our members through education, coalition and professionalism.

For several reasons, the VPMA urges the Board of Agriculture and Consumer Services to deny the Coake petition for rulemaking. The petition is unclear, and consequently very broad.  It does not allow for emergency exemptions. It would have an adverse economic impact on pest management companies in Virginia. And finally, it would undermine important mosquito abatement and invasive insect species work.

The pending petition is unclear and unnecessary.  It has far too broad in scope to be practical. There is no clarity of whether the application of “any pesticide or herbicide” pertains to both interior and exterior treatments. Moreover, the petition appears to cover all formulations of active ingredient including baits and gels, which pose no risk of exposure. Further, because antimicrobials are considered pesticides, would the nighttime cleaning crew have to get permission and post notification before cleaning the windows or toilets of an office building?

The petition does not allow for any emergency exemptions to the regulation in the case of threat to human health or safety.  This oversight could cause harm in the case of stinging or biting insects or venomous spiders.

Applications of pesticides and herbicides to commercial and multifamily properties would be extremely difficult, as the Pest Management Professionals are not dealing with the property owner, but rather a property manager or resident.  Extra time and manpower would be needed to obtain the written permission of the property owner and provide the suggested notification, as well as keep records of these activities. This would drive the cost of performing structural pest control up, causing an adverse economic impact on the more than 600 pest management firms in Virginia.

This petition would also undermine the very important work that is done in mosquito abatement programs to protect the health and welfare of Virginia’s citizens.  It would also weaken the work that is done to control invasive species in Virginia, such as the Red Imported Fire Ant and the Brown Marmorated Stink Bug, that can have both an economic impact and a negative health impact on the citizens of the Commonwealth.

Landowner Permission and Notification:

--States that have addressed this issue have found that the system is rife with problems. Even the most liberal states have resorted to a registry of those wishing to be notified in the event of an application on adjoining or nearby property. These registries have attracted few registrants…especially even if a small fee is charged to register.

--Urban areas pose a problem in that 101 Pine Street's back yard may abutt  the backyard of102 Maple Street however there is no easy way to tell if this is the case.

-- Bottom line…notification sounds reasonable at first blush but with any degree of scrutiny it becomes obvious that the "cure is worse than the kill".

By E-mail                                                        November 11, 2012

Erin Williams
Policy and Planning Coordinator
Virginia Board of Agriculture and
    Consumer Services

Oliver Hill Building

102 Governor Street

Richmond, VA 23219

            Re        Comments of A & N Electric Cooperative on Coake Petitions for Rulemaking

The following comments in opposition to the referenced-above petitions are submitted on behalf of A & N Electric Cooperative.

Electric utility consumers need and demand to have their power restored promptly, as we all have witnessed just last week with Hurricane Sandy.  Minimal interruptions in electric power are called for in the private, commercial, and industrial sectors due to increasing technology requirements as well as the traditional needs.  Right-of-way herbicide management allows utility crews to reach trouble spots faster to restore power or correct other problems more promptly.  If sections of a right-of-way are left unmaintained due to results of any rules or regulations imposed by the Virginia Department of Agriculture and Consumer Services, both power quality and restoration times could be severely adversely affected.

In order to provide quality electric service, well maintained right-of-ways is essential.  Electric Cooperatives are involved in maintenance activities including trimming of individual trees, rural side trimming, mechanical cutting of trees in right-of-ways, and herbicide treatments.

It would be extremely difficult, actually impossible, to contact every individual owner in advance of  herbicide application, due to absentee owners, abandoned properties, properties with multiple owners, estates that have been unsettled for generations and properties that have recently had changes in ownership.  Herbicides are often applied on 1/3 of a utility’s maintained right-of ways annually.  It is a nearly impossible task to contact these unavailable or unknown owners.

Right-of-ways that are properly maintained with herbicides provide prompt access to utility structures and equipment when compared to unmaintained right-of-ways or right-of-ways maintained by other means.  In addition, areas of grasses and forbs that flourish after proper herbicide application help to filter run-off and reduce erosion.  When compared to mechanical clearing of right-of-ways, proper herbicide application also reduces the amount of oxygen consuming vegetation particles that are carried into our water resources.  Damages are also reduced to drainage ditches when applying herbicides as compared to cutting brush with heavy right-of-way cutting equipment.

Improperly maintained right-of-ways can lead to safety problems for land owners, tenants, the general public, and utility employees.  Reputable applicators employ certified employees to apply herbicides and have labels and Material Safety Data Sheets available for the public if questions arise when applications are being made.

Not only do utilities use herbicides but they are also used on right-of-ways of Virginia Department of Highways, railways, pipelines, municipalities, tree farmers, and agriculture operations, as well as many other public and private entities.  Also, please note that herbicides control undesirable plants, while pesticides include herbicides, insecticides, rodenticides, etc.  I prefer to use the word herbicide because herbicides that are used today are less toxic to animals than many items available around the house.

Utilities have easements and eminent domain rights to maintain right-of-ways in order to maintain utility plant and provide safe reliable electric service.  Many right-of-way easements specifically give utilities the right to chemically control vegetation.

Our concern is substantial, in part because this proposal would likely be a greater problem for utilities serving rural areas than for those in urban or suburban areas.

Thank you for this opportunity to provide these comments in opposition to the Coake petitions.

Don Bowling

Vice President - Operations

A & N Electric Cooperative

21275 Cooperative Way

Tasley, VA  23441

COMMENTS FROM BARC ELECTRIC COOPERATIVE

REGARDING PESTICIDE CONTROL LAW RULEMAKING

(Coake Petition for Rulemaking)

11.08.2012

BARC Electric Cooperative (BARC) is a rural electric distribution cooperative serving the far west/southwest portion of Virginia.  With approximately 2,000 miles of electric distribution line, BARC’s service territory stretches from the top of the Blue Ridge Mountains down into the Shenandoah Valley and back into the Alleghany Mountains to the West Virginia border.  BARC’s territory is among the most rugged, heavily forested and mountainous terrain in the state.  As BARC relies heavily upon a herbicide cycle program to control right-of-way re-growth, BARC believes these proposed rule changes would have a disparate and direct impact on BARC and its ratepayers.  BARC therefore opposes the petitions.

There are two types of right-of-way easements in place today:  written and prescriptive.  A prescriptive easement is deemed to exist according to Virginia’s laws regarding adverse possession for right-of-way that is at least 20 years old.  In general terms, prior to 1985, BARC, like many electric utilities, did not obtain written easements.  Since more than 20 years has now passed (from 1985), BARC considers a prescriptive easement to exist on all such right-of-way, which courts have upheld.  The majority of BARC’s easements are prescriptive and not written.

Around 1985, BARC began obtaining written easements and began recording those easements in the appropriate county.  BARC’s written easements include the following language: 

Co-op shall at all times have the right to keep the designated rights of way clear of all buildings, structures, and other obstructions (except fences), trees, roots and undergrowth by both mechanical and chemical means.  Additionally, Co-op may cut, trim and control by the aforesaid means any trees located adjacent to the designated rights of way which interferes with, threaten or endanger the operation and maintenance of said lines.

BARC interprets “chemical means” to include herbicide applications.  No prior written notice of an herbicide application, or additional permission, is required under BARC’s written easements.  Because BARC’s easements are recorded against the real property, BARC’s easements “run with the land” in perpetuity, even if the ownership of the property changes.

The proposed rule regarding notice and permission would create major customer confusion.  Specifically, there would be differing opinions about whether BARC’s written easements would be grandfathered or superseded by the proposed rule.  Further, confusion would exist whether BARC’s right to apply herbicide in its prescriptive easements required prior notice and permission.  If the proposed rule did apply to prescriptive easements (which the vast majority of BARC’s easements are), the administrative burden on BARC’s small staff to coordinate the notice and permission of thousands of property owners would be significant.  BARC would require major additions to staff, and incur significant additional costs, to manage such a task.  Those costs would be borne by our ratepayers through electric rate increases to recover those costs.

The proposed rule may constitute a “taking” under the Virginia constitution.  It is not equitable for a landowner, or the government (by rule), to take away the right of the utility to maintain its ROW by chemical means, a right that it acquired either in writing (written, recorded easement that runs with the land) or via prescriptive means, particularly if BARC compensated the landowner for the easement originally.  Compensation would be due to the utility for such a taking.

Herbicide is a cost-effective control method for controlling re-growth between mechanical trimming cycles.  The re-growth must still be maintained regardless of this proposed rule change.  The alternative to herbicide is annual or semi-annual brush hogging or hand clearing, which is a tremendously more expensive and labor-intensive method of right-of-way re-growth control.  On the BARC system there are some places where after two growing seasons the brush is too big to brush hog.  These additional costs would again be borne by our ratepayers through electric rate increases to recover those costs.

This rule would for all practical purposes make it impossible for BARC 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.  Some would be contiguous with like property and some would not.  There would be thousands of landowners to contact.  The written notice process would require a dedicated staff to determine mailing addresses, track letters out, letters received, nature of response, research and field marking (and re-marking when flags or signs are removed or lost) of property boundaries relative to the right-of-way, production of paper maps for use in the field by the applicator.  In cases where the landowner cannot be reached, confusion would abound about whether BARC could proceed without affirmative permission granted.

Matching right-of-way boundaries with specific property boundaries is simply not practical.  In many areas, the county real estate office does not have accurate mapping of property boundaries.  It is not feasible, or cost effective, to survey and mark each landowner’s property boundary, which this rule would essentially require.  It would be required to prevent overspray getting onto an adjacent landowner who does not allow spraying.

BARC Electric Cooperative appreciates this opportunity to offer comments in opposition to the Coake Petitions for Rulemaking.  Thank you.

Michael Keyser

CEO

BARC ELECTRIC COOPERATIVE
84 High Street
P.O. Box 264
Millboro, Virginia 24460-0264

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 Proposed Herbicide Rulemaking –

From: Community Electric Cooperative (Community)

Any competently run Electric Utility spends significant time and expense to maintain a reliable system. One of the keys to a reliable overhead system is keeping adequate clearance from trees in all directions. In it’s publications, the Rural Utilities Service (RUS) recommends a minimum of ten feet of clearance in all directions from the phase wire. As a practical matter, overhanging limbs should be avoided for a variety of reasons, including safety of the public and the danger of broken limbs falling onto energized wires. Therefore, most utilities maintain the edges of their right-of-ways with a ground to sky cutting plan. For areas other than mowed yards utilities also clear trees from under the line. Some use mechanical means such as a bush-hog, others use spot application of herbicides to small trees, and many use a combination of both. In the South, with the long growing season, mechanical clearing only produces multiple re-sprouts from the root stock so that over time the ground cover becomes increasingly dense and harder to cut. This is where herbicide application comes in because it kills the root of the sprayed trees.

Since it is the duty of the utility to maintain a reliable system, so long as the utility is using the herbicides in an approved manner and application rate, Community fails to see why we should create a patchwork of permissions from people who have no training in the use of herbicides. For landowners who do not want herbicides applied to their property we tell them as long as they maintain a mowed right-of-way under our lines, cut at least every two months in the growing season, we have no need or reason to use herbicides.

Points against proposal:

1.            Difficulty of reaching the landowner, particularly in forested lands. As an example, Community lines goes thru a stretch of woods that formerly belonged to International Paper. They sold the land six years ago to the Missouri State Employees’ Retirement Fund. When we contacted the State Employees’ Fund they said they had sold the land to the Missouri Municipal Employees’ Retirement Fund. When the Municipal Employees Fund was contacted they denied owning the land, even though the county shows them paying taxes on the land. This is just one example of a common pattern of absentee landowners.

2.            Even when we know the landowner and they acknowledge owning the land if the matter does not impact their rents they rarely respond in any manner, so how could we obtain permission.

3.            So long as we are using them in the legally described manner applied by licensed technicians, why should there be a requirement to obtain permission from a landowner who has no training in or knowledge of the proper use of herbicides?

4.            If an organic farmer, or other landowner, does not want herbicide used, they can regularly mow the right-of-way, which negates the need for herbicides.

5.            There is already in place a system of penalties and oversight by the State if there are complaints. In the 23 years Community has been involved in herbicide application we have only had 5 valid complaints, all of which involved windblown overspray. In each case either Community or its contractor, Custom Weed Control, has replaced the damaged bushes or tree to the satisfaction of the landowner. There were also two cases where Community was accused but chemical testing showed it was the State Highway Department’s mix of chemicals, not those used by Community or Custom Weed Control.

6.            Community’s easements say that the Cooperative has the right to maintain the easement. It does not endorse or ban any method of maintaining the right-of-way, recognizing that as technology changes our method(s) of maintaining a right-of-way may change.

Community is grateful for this opportunity to submit these comments in opposition to the Coake petitions.  Thank you.

Jean Thrasher

Vice President of Operations and Engineering

Community Electric Cooperative

52 W. Windsor Blvd.

Windsor, VA  23487-0267

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.

1. The Critical Importance of Vegetation Control Along Electric Distribution Lines

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.

2. The Board Does Not Have Legal Authority to Adopt the Proposed Amendments

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.

3. The Proposed Amendments Are Unjustified, Unnecessarily Burdensome and Expensive and Contrary to the Public Interest

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