Water in the 2018 Virginia General Assembly: Coal Ash Management Bills

This is one of a series of posts on particular water-related bills in the 2018 Virginia General Assembly.  For an inventory of about water-related bills in the 2018 General Assembly, please visit the Virginia Water Resources Research Center’s “Virginia Water Legislation” page, online at http://www.vwrrc.vt.edu/virginia-water-legislation/.  Each post includes a summary of the bill(s), their legislative status (in committee, passed, failed, etc.), and a list of hyperlinked headlines for news media items on the bill(s).  Information on the bills’ provisions and status is taken from the Virginia Legislative Information System (LIS), online at http://leg1.state.va.us/lis.htm; the LIS summaries are edited in some cases for space or clarity.  Each bill number is hyperlinked to the LIS entry for that bill.

Several bills were introduced in the 2018 Virginia General Assembly on management of ponds that contain coal-combustion residuals, also called coal ash, by power plants in the Commonwealth.  One bill—SB 807—passed.

SB 807 – Electric utilities; coal combustion residuals units; beneficial use projects.  This bill passed the Senate 37-3 on 2/13/18.  A substitute version passed the House 97-0 on 3/6/18, and the Senate then passed the House substitute 37-4 on 3/7/18.  As of 3/27/18, the governor had not acted to sign, amend, or veto the bill.  Sponsored by Sen. Scott Surovell (D-36^th), the bill would direct the director of the Department of Environmental Quality (DEQ) to suspend, delay, or defer the issuance of any permit to provide for the closure of any coal combustion residuals (CCR, or coal ash) unit until July 1, 2019, other than for a permit required for impoundments where coal ash has already been removed and placed in another impoundment on site, is being removed from an impoundment, or is being processed in connection with a recycling or beneficial use project.  The measure also requires the owner or operator of any CCR surface impoundment that is located within the Chesapeake Bay watershed to issue a request for proposals (RFP) to determine (i) the quantity of coal ash that may be suitable for recycling in each CCR surface impoundment located within the Chesapeake Bay watershed, (ii) the cost of recycling such coal ash, and (iii) the potential market demand for material recycled from such coal ash; and that, no later than November 15, 2018, the owner or operator of each CCR surface impoundment or other CCR unit to which this act applies shall transmit a business plan—compiling the information related to clauses i., ii., and iii., above—to the governor, certain General Assembly committee chairs, and the directors of the departments of Environmental Quality and Conservation and Recreation.

Following are descriptions and the status of five other coal ash-related bills that were introduced into the 2018 session.

HB 467 – Coal ash: recycling or reuse as preferred disposal method.  The bill failed in the House Commerce and Labor Committee on 2/13/18.  The bill, sponsored by Del. Lee Carter (D-50^th), would have prohibited of coal ash except by recycling or beneficial reuse (with certain exceptions).

SB 765 – Coal ash ponds: mandatory testing of drinking water wells in Chesapeake Bay watershed.  This bill was carried over to 2019 in the Senate Commerce and Labor Committee.  The bill, sponsored by Sen. Scott Surovell (D-36^th), would require the owner or operator of any coal ash pond in the Chesapeake Bay watershed that is closed by capping in place to complete a survey of all drinking water wells within one mile of the pond; require the utility to commission an independent well water test on behalf of the owner of each such well and conduct such a test once per year during each of the five years following the approval of the closure of the coal ash pond, and once every five years thereafter; require the utility to proved alternative water supplies to the owner of any well where tests exceed groundwater quality standards for constituents associated with coal ash; and require the Department of Environmental Quality (DEQ) to consider the results of the tests in its permitting, monitoring, or enforcement proceedings.

SB 767 – Coal ash ponds: delay of closure permit issuance for certain flaws in closure plans.  This bill was carried over to 2019 in the Senate Commerce and Labor Committee.   The bill, sponsored by Sen. Scott Surovell (D-36^th), would authorize the director of the DEQ to delay the issuance of a permit for the closure of a coal ash pond in the Chesapeake Bay watershed if the DEQ determines that the closure plan shows any insufficiency or flaw, including a failure to account for the possibility of leakage.

SB 768 – Electric utilities: limits on recovery of costs associated with closure in place of coal ash facilities.  This bill was carried over to 2019 in the Senate Commerce and Labor Committee.   The bill, sponsored by Sen. Scott Surovell (D-36^th), would direct that in State Corporation Commission (SCC) reviews of investor-owned electric utilities, any costs incurred by the utility that are associated with closure in place of a coal ash landfill or surface impoundment are to be considered “unreasonable and not prudent”; and would direct that, for purposes of any rate adjustment clause for recovery of environmental costs, costs associated with closure in place of such a landfill or impoundment are not necessary to comply with any environmental law or regulation.

SB 808 – Electric utilities; Transitional Rate Period, coal combustion residuals landfills.  This bill was carried over to 2019 in the Senate Commerce and Labor Committee.   The bill, sponsored by Sen. Scott Surovell (D-36^th), would change the duration of the Commonwealth’s current Transitional Rate Period (Period) for any Phase II Electric Utility, and provide that during the first biennial review after the Period, the State Corporation Commission shall determine whether the utility would have owed customers a refund during any test period in the Transitional Rate Period, and, if so, the utility may elect to expense up to 80 percent of costs associated with closure by removal of coal combustion residuals landfill or surface impoundments against its overearnings.  The measure would require the owner or operator of any coal combustion residuals unit to submit reports on the costs associated with removal of coal combustion residuals landfill or surface impounds.

News Media Items Related to This Legislation

House panel next to consider Senate coal ash legislation, Virginia Business, 2/20/18.

Bill delays closing coal ash ponds, Chesterfield Observer, 2/14/18.

Coal ash dispute headed for more study under bill that clears Senate committee, Richmond Times-Dispatch, 2/7/18.  Finding a coal ash fix: Legislators propose different options for Dominion waste, Inside NoVa, 1/20/18.

State lawmakers face continuing Bay debates in 2018, Bay Journal, 1/3/18.

Reducing Carbon Emissions from Power Plants in Virginia – Public Hearings in March 2018 on Proposed Carbon-trading Regulation; Proposal Follows Gov. Executive Directive Issued May 16, 2017

Following is information on Virginia’s process in 2017-18 to develop regulations to reduce carbon emissions from electric power plants.  The latest update to this post is March 20, 2018.

In March 2018, the Virginia Air Pollution Control Board and Department of Environmental Quality (DEQ) held a series of public hearings on proposed carbon dioxide (CO2)-trading regulation.  The public hearings were as follows (dates are hyperlinked to Virginia Regulatory Town Hall notices):
3/7/18, 5 p.m., at the DEQ Southwest Regional Office, 355 Deadmore Street in Abingdon.  Other public hearings will be as follows:
3/12/18, 5 p.m., at the DEQ Tidewater Regional Office, 5636 Southern Boulevard in Virginia Beach;
3/14/18, 5 p.m., at the DEQ Valley Regional Office, 4411 Early Road in Harrisonburg;
3/15/18, 5 p.m., at the DEQ Northern Regional Office, 13901 Crown Court in Woodbridge (Prince William County);
3/19/18, 1:30 p.m., at the DEQ Central Office, 1111 East Main Street in Richmond.

The pertinent section of the Virginia Administrative Code is 9 VAC 5-140.   More information on this regulatory action is available online at http://townhall.virginia.gov/L/viewaction.cfm?actionid=4818.  According to the “Action Summary” at that Web site, “[t]he purpose of the proposed action is to develop a regulation, in accordance with Executive Directive 11 (2017), ‘Reducing Carbon Dioxide Emissions from Electric Power Facilities and Growing Virginia’s Clean Energy Economy,’ that (i) ensures that Virginia is trading-ready to allow for the use of market-based mechanisms and the trading of carbon dioxide (CO2) allowances through a multi-state trading program, and (ii) establishes abatement mechanisms that provide for a corresponding level of stringency to CO2 limits imposed in other states with such limits.”

On May 16, 2017, then-Va. Gov. Terry McAuliffe signed and announced Executive Directive 11, which instructed the Department of Environmental Quality (DEQ) to begin a process of developing regulations to reduce carbon emissions from electric power plants.  The directive is available online (as a PDF) at http://governor.virginia.gov/media/9155/ed-11-reducing-carbon-dioxide-emissions-from-electric-power-facilities-and-growing-virginias-clean-energy-economy.pdf.  Following is an excerpt from the directive: “I hereby direct the Director of the Department of Environmental Quality, in coordination with the Secretary of Natural Resources, to take the following actions…
1. Develop a proposed regulation for the State Air Pollution Control Board’s consideration to abate, control, or limit carbon dioxide emissions 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 carbon dioxide allowances through a multi-state trading program; and b. Establishes abatement mechanisms providing for a corresponding level of stringency to limits on carbon dioxide 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….”

The May 16, 2017, directive followed the report on May 12, 2017, of the Executive Order 57 Work Group, which Mr. McAuliffe established in June 2016 to study and make recommendations about reducing carbon emissions from the Commonwealth’s power plants.  The group’s final report, along with more information about Executive Order 57, is available online at https://naturalresources.virginia.gov/initiatives/eo-57/.  Please see this link for a previous Water Central News Grouper post on the Work Group.

On June 26, 2017, a Notice of Intended Regulatory Action was published in the Virginia Register of Regulations.  In August 2017, a Regulatory Advisory Committee was formed to provide advice to the DEQ on development of the CO2 regulations.  The committee held its first meeting on August 3, 2017; information on that meeting is available online at http://townhall.virginia.gov/L/ViewMeeting.cfm?MeetingID=26367.

Meanwhile, on November 11, 2017, at the 23^rd United Nations Climate Change Convention in Bonn, Germany, Virginia became a member of the Under2 Coalition of sub-national governmental entitities that have committed to reducing carbon emissions.  Source: Virginia Becomes Latest US State To Commit To Action On Climate Change, Water Online, 11/17/17.  More information about the Under2 Coalition is available online at https://www.theclimategroup.org/project/under2-coalition.

Additional Source: Governor McAuliffe Takes Executive Action to Reduce Carbon Emissions Across Virginia; “Clean Energy Virginia” initiative will cap greenhouse gases and grow Virginia’s clean energy economy, Virginia Governor’s Office News Release, 5/16/17.

Following are some news media accounts on Executive Directive 11, listed from newest to oldest.
More than 370 Virginians attend DEQ hearings on carbon reduction, Augusta Free Press, 3/19/18.
Virginia DEQ to Hold Final Input Session on Carbon Plan, Associated Press, as pubished by U.S. News & World Report, 3/19/18.
Virginia Accepting Public Comment on Cap and Trade Plan, WVTF Richmond, 3/16/18.
Virginia’s move to join regional carbon market faces several challenges, Southeast Energy News, 11/28/17.
Virginia regulators approve carbon cap-and-trade plan, Associated Press, as published by Lynchburg News & Advance, 11/16/17.
Virginia Launches Plan to Join East Coast Carbon Market, Cut Emissions 30%, Inside Climate News, 11/16/17.
Virginia State Air Pollution Control Board approves draft rule that would regulate power plant carbon emissions, Richmond Times-Dispatch, 11/16/17.
Virginia Moves to Join RGGI Carbon-trading Market, POWER, 11/15/17.
Virginia DEQ unveils proposal to link with RGGI, ICIS/Reed Business Information, 11/13/17.
Virginia regulators set to unveil new climate plan after Northam victory, Utility Dive, 11/10/17.
After Northam win, Virginia set to unveil cap-and-trade plan, Washington Times, 11/10/17.
Virginia Begins Development of Cap-and-Trade Program for Electric Power Sector, National Law Review, 5/19/17.
Wagner takes aim at McAuliffe carbon order; critics say he’s seeking attention, Daily Press, 5/19/17.
Amid longshot run for governor, Wagner says he’ll call emergency hearing to fight McAuliffe’s climate change plan, Richmond Times-Dispatch, 5/19/17.
Virginia Governor Orders Power Plant Carbon Regulations, POWER Magazine, 5/18/17.
Bucking D.C. and Republican legislature, Virginia governor moves to limit carbon emissions, ThinkProgress (Center for American Progress Action Fund), 5/17/17.
McAuliffe Moves to Cap Utility Carbon Emissions, Bacon’s Rebellion, 5/17/17.
McAuliffe moves to curb carbon emissions blamed for sea level rise, [Newport News] Daily Press, 5/16/17.
McAuliffe: Virginia will regulate carbon emissions; ‘the threat of climate change is real’, Richmond Times-Dispatch, 5/16/17.
McAuliffe proposes statewide carbon cap, Washington Post, 5/16/17.
Virginia AG: State board can regulate carbon pollution, Richmond Times-Dispatch, 5/12/17.
Will Virginia forge its own path on carbon regulation?, Richmond Times-Dispatch, 5/3/17.

Dominion Energy’s Virginia Coal Ash Storage Ponds Options Evaluated in Report Released Dec. 1, 2017; Report was Mandated by SB 1398 in 2017 Virginia General Assembly

On December 1, 2017, Dominion Energy released an 846-page report on options for the company to address its coal combustion by-products, also called coal ash, stored in ponds at four coal-fired power plants in Virginia.  The report was mandated by Senate Bill 1398 in the 2017 Virginia General Assembly (online at http://leg1.state.va.us/cgi-bin/legp504.exe?ses=171&typ=bil&val=sb1398), which stated that “every owner or operator of a coal combustion residuals (CCR) surface impoundment, as that term is defined at 40 C.F.R. § 257.53, that is located within the Chesapeake Bay watershed shall conduct an assessment of each such CCR surface impoundment (CCR unit) regarding the closure of any such unit.”

The report is available online at is available online at https://www.dominionenergy.com/coalash.

According to the report’s Executive Summary, SB 1398 called for the company to do the following:
*evaluate closure by removal with recycling or reuse (beneficial use) of the CCR material;
*evaluate closure by removal with placement of CCR material in a permitted landfill;
*evaluate closure-in-place addressing long-term safety, structural, and extreme weather event resiliency; and
*describe groundwater and surface water quality surrounding each ash pond and evaluate corrective measures if needed.

The report was done for Dominion by the international firm AECOM (headquartered in Los Angeles; online at http://www.aecom.com/).

Following are hyperlinked news media articles on the release of the report:
Report lays out potential Virginia coal ash options, Associated Press, as published by Charlottesville Daily Progress, 12/1/17.
Dominion’s long-awaited coal ash assessment is in, but what the utility will do with it remains unclear, Richmond Times-Dispatch, 12/1/17.
State-mandated report details new options for Dominion Energy’s toxic coal ash, Prince William Times, 12/2/17.
Dominion’s review of coal ash “alternatives” still favors on-site storage, Bay Journal, 12/6/17.

For more details on coal ash management in Virginia, please see this Water Central News Grouper post.

Development of Abandoned Mine Lands is Focus of Federal Pilot Program Funding Granted to Virginia in May 2017

In May 2017, Virginia was chosen to receive federal funds for economic development of abandoned mine lands under the Power Plus Pilot Program, part of the federal Ominbus Bill passed in May 2017.  More information on this program  is available online at https://dmme.virginia.gov/dmlr/Pilot2017.shtml.  According to that Web site, Virginia “was one of the states chosen to receive $10 million to develop Abandoned Mine Land (AML) sites.  The grant comes from the Power Plus Pilot Program which was part of the federal Omnibus Funding Bill passed in May 2017.  Projects completed with the funds will not only be designed to boost the economy of southwest Virginia’s coalfields but will also improve the environment.”

The Virginia Department of Mines, Minerals and Energy formed an Abandoned Mine Land Pilot Funding Advisory Group to assist the DMME by reviewing grant proposals and making recommendations to DMME on which pilot projects to propose to the U.S. Department of Interior’s Office of Surface Mining.  The Advisory Group is next scheduled to meet on 11/8/17, 9:00 a.m., at the DMME office, 3405 Mountain Empire Road in Big Stone Gap, in Wise County (click on the meeting date to access meeting information from the Virginia Regulatory Town Hall).

 

Mining Reclamation Conference Held April 9-13, 2017, in Morgantown, W. Va.

On April 9-13, 2017, in Morgantown, W. Va., “What’s Next for Reclamation?” was presented by  the West Virginia Mine Drainage Task Force, the American Society of Mining and Reclamation, and the Appalachian Regional Reforestation Initiative.  More information about the meeting is available online at https://wvmdtaskforce.com/2017-joint-conference/.

The meeting included two presentations by scientists connected with the Virginia Water Resources Research Center (which produces this Water Central News Grouper blog).  Center Director Stephen Schoenholtz presented “Water Quality and Biotic Condition in Mining-influenced Appalachian Headwater Streams: An Overview of a Long-term Study.”  Kriddie Whitmore, a graduating master’s student under Dr. Schoenholtz, presented “Selenium Dynamics in Mining-Influenced Headwater Streams of Central Appalachia.”

Clean Water Act Issues of Chesapeake Energy Center Coal Ash Ruling in March 2017 Discussed in 3/30/17 National Law Review Article

Virginia Ash Pond Seeps Violate CWA, But Do Not Warrant Civil Penalty, by Amy Antoniolli, Daniel Deeb, and Joshua Moore, in National Law Review, 3/30/17, reviews the legal issues related to the federal Clean Water Act (CWA) in a federal lawsuit over coal-ash storage ponds at Dominion Virginia Power’s Chesapeake Energy Center on the Southern Branch Elizabeth River in the city of Chesapeake, Virginia.

On March 23, 2017, U.S. District Court Judge John Gibney, Jr., issued a 21-page opinion, ruling that the plaintiff, the Sierra Club, had proved that arsenic from four impoundments at the Chesapeake Center had contaminated groundwater and reached the Elizabeth River.  Gibney’s ruling stated that that pollution violates the federal Clean Water Act, because Dominion did not have a Virginia Pollutant Elimination Discharge Systems permit for such discharges.  Key parts of the ruling are that the judge considered the ash-storage area to be point source of pollution under the CWA, and that groundwater contamination from the storage area was a violation of CWA because the groundwater was connected to surface waters covered by the law.  The National Law Review article discusses those findings.

For more detail on the lawsuit, please see this Water Central News Grouper post: Lawsuit Filed by Sierra Club in March 2015.

For more detail on coal-ash storage issues in Virginia, please see this Water Central News Grouper post: Closure of Coal Ash Ponds at Dominion and APCO Power Stations in Virginia, 2015-2017.

Water in the 2017 Virginia General Assembly: Coal Ash Management Bills – Updated 4/27/17

This is one of a series of posts on particular water-related bills in the 2017 Virginia General Assembly.  For an inventory of about 160 water-related bills in the 2017 General Assembly, please visit the Virginia Water Resources Research Center’s “Virginia Water Legislation” page, online at http://www.vwrrc.vt.edu/virginia-water-legislation/.  Each post includes a summary of the bill(s), their legislative status (in committee, passed, failed, etc.), and a list of hyperlinked headlines for news media items on the bill(s).  Information on the bills’ provisions and status is taken from the Virginia Legislative Information System (LIS), online at http://leg1.state.va.us/lis.htm.  Each bill number is hyperlinked to the LIS entry for that bill.

SB 1398, sponsored by Sen. Scott Surovell (D-36^th District) of Mt. Vernon, passed the Senate on Feb. 7.  As passed by the Senate, the bill would prohibit the DEQ director from issuing a draft permit for the closure of a coal combustion residuals unit (CCR unit) located in the Chesapeake Bay watershed (that is, at facilities of Dominion Virginia Power) until the director has reviewed an assessment of closure options prepared by the owner or operator of the CCR unit.  Prior to receiving a permit, the permit-seeker would have to identify water pollution and address corrective measures to resolve it, evaluate the clean closure of the CCR unit by recycling the ash for use in cement or moving it to a landfill, and demonstrate the long-term safety of the CCR unit and its ability to keep ash out of wetlands and other sensitive areas.  A substitute version passed by the House on Feb. 17 removed the requirement that the information be provided and reviewed by the director before the director may issue a draft permit for closure of a CCR unit.  The Senate agreed to the House version on Feb. 21.  On March 22, Gov. Terry McAuliffe proposed an amendment that would place a moratorium on any Dominion coal-ash closures until 2018, when the information required by SB 1398 will have been provided.  In early April, Dominion announced that it would not oppose the delay in closure permitting called for in the governor’s amendment.  The amendment was approved by the General Assembly in its April 5 reconvened session.

SB 1399, also sponsored by Sen. Surovell, was stricken from the docket of the Senate  Agriculture, Conservation and Natural Resources (ACNR) Committee at the request of Sen. Surovell.  The bill would have directed the DEQ to require the closure of surface impoundments of coal combustion by-products, commonly called coal ash ponds, by July 1, 2021.  The bill would have applied to impoundments that managed such by-products from the generation of electricity by an electric utility or independent power producer prior to December 22, 2016, including those impoundments that, prior to December 22, 2016, have been closed by capping in place or have received DEQ approval for closure by capping in place.  The bill would also have required that the coal combustion by-products be removed for disposal in a permitted landfill meeting federal criteria and that the impoundment site be reclaimed in a manner consistent with federal mine reclamation standards for the closure to be deemed complete.  The bill would have allowed the electric utility to recover the costs of closure from customers.

SB1383, also sponsored by Sen. Surovell, was stricken from the docket of the Senate ACNR Committee at the request of Sen. Surovell.  The bill would have required electric utilities to recycle as much of their stored coal ash as is imported into the Commonwealth each year, on a pro rata basis.

Related News Media Items on this Legislation

GOP ushers through coal ash legislation, Chesterfield Observer, 4/12/17.

Delaying closure: Virginia’s controversial coal ash ponds, WTOP Radio-Washington, 4/15/17.

New review of coal ash at Dominion Power’s Chesapeake site may leave out most of the ash, Virginian-Pilot, 4/6/17.

Coal Ash Ponds: Power companies to face new barrier in closing Virginia sites, Inside Nova, 4/6/17.

In special session, Virginia lawmakers put the brakes on Dominion’s coal-ash plans, Prince William Times, 4/6/17.

Dominion to assess coal ash sites regardless of bill’s fate, Associated Press, as published by WJLA TV-Washington, 4/5/17.

Dominion won’t oppose pause in coal-ash permitting, Richmond Times-Dispatch, 4/4/17.

If amended bill passes, coal ash closure process at Possum Point could slow, Potomac Local, 3/27/17.

Virginia governor proposes moratorium on coal ash permits, Bay Journal, 3/22/17.

McAuliffe seeks coal ash pond alternatives with permit moratorium, Inside NOVA, 3/22/17.

McAuliffe moves to place yearlong moratorium on coal-ash pond closure permits, Prince William Times, 3/22/17.

Governor requests pause in coal-ash permitting, Richmond Times-Dispatch, 3/22/17.

Sen. Chase asks governor for help with coal ash, Chesterfield Observer, 3/1/17.

Coal ash bill goes to governor without important moratorium provision, Virginian-Pilot, 2/21/17.

Coal Ash Bill Results In General Assembly Compromise: Bill Requires More Information Before Slurry Disposal, The Flat Hat (College of William and Mary), 2/21/17.

Virginia environmentalists disappointed by “watered down” coal ash bill, WTKR TV-Norfolk, 2/22/17.

Environmentalists disappointed by House’s coal ash bill, WTVR TV-Richmond, 2/17/17.

Virginia House of Delegates committee defangs coal ash bill, Richmond Times-Dispatch, 2/15/17.

Coal ash bill clears House subcommittee, though not unscathed, Richmond Times-Dispatch, as published by Roanoke Times, 2/14/17.

Coal ash bill clears Senate, but faces challenges in the state House, Fauquier Times, 2/13/17.

Surovell bill to delay Dominion’s coal-ash plans moves to the state Senate, Prince William Times, 2/3/17.

Bill that would require more information on coal-ash closure plans clears Va. Senate committee, Richmond Times-Dispatch, 2/2/17.

Is Recycling a Practical Solution for Coal Ash?, Bacon’s Rebellion, 2/2/17.

Coal ash revaluation, recycling bill that could affect Chesapeake energy site passes Senate panel, Virginian-Pilot, 2/3/17.