GENERAL NOTICES/ERRATA
Vol. 37 Iss. 3 - September 28, 2020

STATE AIR POLLUTION CONTROL BOARD

State Implementation Plan Proposed Revision - Maintenance Plan for Richmond-Petersburg
1997 Ozone National Ambient Air Quality Standard Maintenance Area

Notice of action: The Department of Environmental Quality (DEQ) is announcing a public comment period on a proposed second maintenance plan for the Richmond-Petersburg 1997 ozone National Ambient Air Quality Standard (NAAQS) maintenance area. The plan shows that emission reductions of nitrogen oxides (NOX) and volatile organic compounds (VOC) in the area will continue such that air quality is expected to further improve. The Commonwealth intends to submit the plan as a revision to the Virginia State Implementation Plan (SIP) in accordance with the federal Clean Air Act. The SIP is the plan developed by Virginia in order to fulfill its responsibilities under the federal Clean Air Act to attain and maintain the NAAQS promulgated by the U.S. Environmental Protection Agency.

Purpose of notice: DEQ is seeking comments on the maintenance plan for the Richmond-Petersburg 1997 ozone maintenance area, which consists of the Counties of Charles City, Chesterfield, Hanover, Henrico, and Prince George, and the Cities of Colonial Heights, Hopewell, Richmond, and Petersburg.

Public comment period: September 28, 2020, through October 28, 2020.

Public hearing: A public hearing will be conducted if a request is made in writing to the contact listed at the end of this notice. In order to be considered, the request must include the full name, address, and telephone number of the person requesting the hearing and be received by DEQ by the last day of the comment period. Notice of the date, time, and location of any requested public hearing will be announced in a separate notice, and another 30-day comment period will be conducted.

Description of proposal: The proposal consists of the following:

1. An air quality maintenance plan for the Richmond-Petersburg 1997 ozone maintenance area consisting of the Counties of Charles City, Chesterfield, Hanover, Henrico, and Prince George, and the Cities of Colonial Heights, Hopewell, Richmond, and Petersburg.

2. A comprehensive attainment year inventory of actual emissions from all sources of relevant ozone precursor pollutants (carbon monoxide, NOX, and VOC) for the year 2014.

3. Air quality data from 2000 to 2019 showing that the area is attaining the 1997 ozone NAAQS with a significant margin of safety.

4. Contingency measures in the unlikely situation where air quality monitors within the area record an exceedance of the 1997 ozone NAAQS.

5. Assurance that the Commonwealth will continue to operate an ozone monitoring network in accordance with 40 CFR Part 58 within the area.

Federal information: This notice is being given to satisfy the public participation requirements of federal regulations (40 CFR 51.102). The proposal will be submitted as a revision to the Virginia SIP under § 110(a) of the federal Clean Air Act in accordance with 40 CFR 51.104. It is planned to submit all provisions of the proposal as a revision to the Commonwealth of Virginia SIP.

How to comment: DEQ accepts written comments by email, fax, and postal mail. In order to be considered, comments must include the full name, address, and telephone number of the person commenting and be received by DEQ no later than the last day of the comment period. A cover page with the recipient's full mailing address must be part of each fax. Comments must be submitted to the contact person listed at the end of this notice. All materials received are part of the public record.

To review the proposal: The proposal and any supporting documents are available on the DEQ Air Public Notices for Plans and Programs website at https://www.deq.virginia.gov/Programs/Air/PublicNotices/airplansandprograms.aspx. The documents may also be obtained by contacting the DEQ representative listed at the end of this notice. The public may schedule an appointment to review the documents between 8:30 a.m. and 4:30 p.m. of each business day until the close of the public comment period at the following DEQ locations:

1) Main Street Office, 22nd Floor, 1111 East Main Street, Richmond, VA, telephone (804) 698-4249.

2) Piedmont Regional Office, 4949-A Cox Road, Glen Allen, VA, telephone (804) 527-5020.

Contact Information: Doris A. McLeod, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4249, or email doris.mcleod@deq.virginia.gov.

STATE CORPORATION COMMISSION

Bureau of Insurance

September 1, 2020

Administrative Letter 2020-07

To: All Property and Casualty Insurers and Rate Service Organizations Licensed in Virginia

Re: Filing Procedures for Compliance with the Provisions of the Terrorism Risk Insurance Program Reauthorization Act of 2019;
Withdrawal of Administrative Letter 2015-03

The purpose of Administrative Letter 2020-07 is to advise insurers of certain provisions of the Terrorism Risk Insurance Program Reauthorization Act of 2019 amending and extending the Terrorism Risk Insurance Act of 2002. All references to the Terrorism Risk Insurance Act of 2002 and subsequent reauthorizations will be hereafter referenced as "the Act". The 2019 reauthorization of the Act does not require any filing actions by insurers. For further details, please consult the Act itself.

Further, Administrative Letter 2020-07 brings forward relevant provisions of previously issued administrative letters to address filing-related requirements pertaining to coverage for terrorism risk in property and casualty insurance contracts. The previously issued administrative letter listed above is hereby withdrawn.

The reauthorized Act, as amended and extended, contains minimal changes, including:

• Extending the program through December 31, 2027.

• Changing the timing of the mandatory recoupment by moving the date of each referenced year back five years.

• Requiring the Secretary of the Treasury to include in the Secretary's annual report an evaluation of the availability and affordability of terrorism risk insurance, specifically for places of worship.

• Requiring the Comptroller General of the United States to conduct a study on: overall vulnerabilities and potential costs of cyber-attacks on the U.S.; whether state-defined cyber liability under a property and casualty line of insurance is adequate coverage for an act of cyber terrorism; whether such risks can be adequately priced by the private market; and whether the current risk-share systems under the Act are appropriate for a cyber terrorism event.

Background

In November 2002, the Terrorism Risk Insurance Act of 2002 was enacted. This Federal law provided a federal backstop for coverage for defined acts of terrorism and imposed certain obligations on insurers. The Act has been extended for additional periods and has now been extended through December 31, 2027.

All insurers, as defined in the Act, are required by the Act to participate in the Terrorism Risk Insurance Program and to make available coverage for insured losses, as defined in the Act, resulting from an act of terrorism, as defined in the Act, in all of their property and casualty insurance policies, as defined in the Act. The Act further requires insurers to make available, in all property and casualty insurance policies, coverage for insured losses that does not differ materially from the terms, amounts, and other coverage limitations applicable to losses arising from events other than acts of terrorism.

Definition of Insured Loss(es)

The Act defines "insured loss" as any loss resulting from an act of terrorism (including an act of war in the case of workers' compensation) that is covered by primary or excess property and casualty insurance issued by an insurer if such loss—(A) occurs within the United States; or (B) occurs to an air carrier (as defined in 49 USC § 40102), to a United States flag vessel (or a vessel based principally in the United States, on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States), regardless of where the loss occurs, or at the premises of any United States mission.

Definition of Act of Terrorism

Section 102(1) defines an act of terrorism for purposes of the Act. Please note that the unmodified reference to "the Secretary" refers to the Secretary of the Treasury. The revised § 102(1)(A) states, "The term 'act of terrorism' means any act that is certified by the Secretary, in consultation with the Secretary of Homeland Security, and the Attorney General of the United States—(i) to be an act of terrorism; (ii) to be a violent act or an act that is dangerous to—(I) human life; (II) property; or (III) infrastructure; (iii) to have resulted in damage within the United States, or outside the United States in the case of—(I) an air carrier or vessel described in paragraph (5)(B); or (II) the premises of a United States mission; and (iv) to have been committed by an individual or individuals, as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion." Section 102(1)(B) states, "No act shall be certified by the Secretary as an act of terrorism if—(i) the act is committed as part of the course of a war declared by the Congress, except that this clause shall not apply with respect to any coverage for workers' compensation; or (ii) property and casualty insurance losses resulting from the act, in the aggregate, do not exceed $5,000,000." Section 102(1)(C) and (E) specify that the determinations are final and not subject to judicial review and that the Secretary of the Treasury cannot delegate the determination to anyone.

The policy form must include a definition of act(s) of terrorism. Section 102(1) defines an act of terrorism for purposes of the Act. To satisfy this filing requirement, insurers may reference the definition of "acts of terrorism" in the Act or restate the definition in the policy form. If the term "acts(s) of terrorism" is defined in the policy form, it is not necessary for the insurer to repeat the definition in endorsements used with the policy form.

Definition of Property and Casualty Insurance

For details regarding the lines of insurance to which the Act applies, please consult the Act and the Interim Guidance provided by the Department of the Treasury.

Certified and Non-Certified Acts of Terrorism

As a result of the definitions of "act of terrorism" and "insured loss" contained in the Act, there are essentially two distinct types of losses that a policyholder might face that result from terrorism. One type of loss is the insured loss that is defined within and covered by the provisions of the Act. For convenience, the term "certified loss" will be used to refer to losses resulting from certified acts of terrorism. The second type of loss is one that does not fit within the definition of insured loss as described in the Act. For convenience, the term "non-certified loss" will be used to refer to those losses resulting from acts of terrorism that are not certified.

Non-Certified Acts of Terrorism

If insurers elect to exclude non-certified acts of terrorism, the coverage form must define a non-certified act, which includes an act of terrorism that fails to be certified solely because it falls below the $5,000,000 threshold in § 102(1) (B) of the Act.

The Bureau will continue to approve certain limitations to coverage for non-certified acts of terrorism. For policies providing property insurance coverage, the following limitation applies to exclusions of non-certified losses:

• Industry-wide insured losses must exceed $25,000,000 for related incidents that occur within a 72-hour period;

Exclusions applicable to non-certified acts of terrorism are not subject to this limitation if:

1. The act involves the use, release or escape of nuclear materials, or directly or indirectly results in nuclear reaction or radiation or radioactive contamination;

2. The act is carried out by means of the dispersal or application of pathogenic or poisonous biological or chemical materials; or

3. Pathogenic or poisonous biological or chemical materials are released, and it appears that one purpose of the terrorism was to release such material.

The exemption in § 38.2-2102 B of the Code of Virginia (Code) does not apply to non-certified acts; therefore, the provisions of § 38.2-2105 of the Code apply to ensuing fire losses for non-certified acts of terrorism.

For policies providing liability insurance coverage, the following limitations apply to exclusions of non-certified losses:

• Industry-wide insured losses must exceed $25,000,000 for related incidents that occur within a 72-hour period; or

• Fifty or more persons must sustain death or serious injury for related incidents that occur within a 72-hour period. For the purposes of such provisions, serious injury means:

1. Physical injury that involves a substantial risk of death;

2. Protracted and obvious physical disfigurement; or

3. Protracted loss of or impairment of the function of a bodily member or organ.

• Exclusions applicable to non-certified acts of terrorism are not subject to the above limitations if:

1. The act involves the use, release, or escape of nuclear materials, or directly or indirectly results in nuclear reaction or radiation or radioactive contamination;

2. The act is carried out by means of the dispersal or application of pathogenic or

3. Pathogenic or poisonous biological or chemical materials are released, and it appears one purpose of terrorism was to release such materials.

Submission of Rates, Loss Cost Multipliers, and Policy Forms or Endorsements

Coverage Forms, Endorsements

Except to the extent an insurer has authorized a rate service organization (RSO) to file forms on its behalf, insurers must file any policy forms or endorsements that they intend to use to cover or exclude certified losses on or before the date the forms or endorsements are effective. However, for lines or sub-classifications of insurance exempted from form filing requirements by Virginia statutes or administrative orders, the forms or endorsements related to terrorism coverage for those lines or sub-classifications of insurance are also exempt from filing requirements. The requirements of the Act, however, are not affected by such exemptions and continue to apply.

Conditional Terrorism Exclusions

As a result of uncertainty associated with reauthorizations of the Act, insurers filed conditional terrorism exclusions that would be activated in the event the Act was not renewed or renewed on a basis that substantially affected the risk of the loss assumed by the insurer during the period that the policy was in effect. In response to those concerns, the Bureau approved conditional terrorism exclusions. These endorsements must provide the same limitations to coverage for non-certified acts of terrorism, which are described above, for any terrorism loss that occurred after the termination of the Act. Approved conditional endorsements may remain on file to ensure that they are available for any subsequent uncertainty related to the expiration of the Act. Insurers and rate service organizations should review these endorsements to determine their continued appropriateness.

Exclusions Not Allowed in Virginia Coverage Forms

• Virginia laws and regulations prohibit the use of terrorism exclusions in personal automobile insurance and insurance covering owner-occupied dwellings.

• Workers' compensation coverage forms are subject to regulation by the Virginia Workers' Compensation Commission (WCC). Terrorism exclusions have not been approved by the WCC. Any questions pertaining to workers' compensation insurance coverage forms should be directed to the WCC.

• For property insurance policies that are subject to the provisions of Virginia's standard fire policy, as set forth in § 38.2-2105 of the Code, coverage for ensuing fire losses is required. If, however, the insured does not purchase fire coverage for certified acts of terrorism, the provisions of § 38.2-2102 B of the Code apply, and the insurer would be allowed to exclude the ensuing fire loss from certified acts of terrorism.

Rates, Loss Cost Multipliers – Other than Workers' Compensation

Rate and loss cost multiplier filings will be accepted on a file-and-use basis, in accordance with § 38.2-1906 of the Code. If an insurer relies on an RSO for advisory loss costs and to file supplementary rate information on its behalf, no filing is required unless an insurer plans to use a different loss cost multiplier than is currently on file for coverage for certified losses. It is important to note that for lines or sub-classifications of insurance exempted from rate filing requirements by Virginia statutes or administrative orders, the rates related to terrorism coverage for those lines or sub-classifications of insurance are also exempt from filing requirements. The requirements of the Act are not affected by such exemptions and continue to apply.

Rates, Loss Cost Multipliers – Workers' Compensation

If an insurer relies on an RSO to file workers' compensation loss costs and related rating systems on its behalf, no filing is required unless the insurer plans to use a different loss cost multiplier than is currently on file. Refer to Administrative Letter 2010-05 for additional details regarding filing loss cost multipliers. Insurers electing to file independent workers' compensation rates for terrorism exposures that do not rely upon the approved loss costs filed on their behalf by the National Council on Compensation Insurance are subject to the 60-day prior filing requirements of § 38.2-1912 of the Code and must include full actuarial support for their proposed rates.

Disclosure Notices – Filing Not Required

Insurers should not submit the federally required disclosure notices to the Bureau for review or approval. The federally required disclosure notices do not contain terms or conditions of coverage and are, therefore, not subject to form filing requirements

Please feel free to contact the Property and Casualty Division of the Bureau of Insurance at (804) 371-9965 with your questions about Administrative Letter 2020-07.

/s/ Scott A. White
Commissioner of Insurance

DEPARTMENT OF ENVIRONMENTAL QUALITY

Foxglove Solar LLC Notice of Intent for Small Renewable Energy Project (Solar) - Frederick County

Foxglove Solar LLC has provided the Department of Environmental Quality a notice of intent to submit the necessary documentation for a permit by rule for a small renewable energy project (solar) in Frederick County. The proposed project is approximately 668 acres located south of Marlboro Road, north of Vaucluse Road, and bisected by Hites View Road and is generally west of Stephens City in Frederick County. The project will have a maximum generating capacity of 75 megawatts alternating current and consist of approximately 206,550 photovoltaic panels. The project will connect to the grid through transmission lines that bisect the property.

Contact Information: Mary E. Major, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4423, FAX (804) 698-4178, or email mary.major@deq.virginia.gov.

STATE WATER CONTROL BOARD

Proposed Consent Order for the County of Culpeper

An enforcement action has been proposed for the County of Culpeper for violations of the State Water Control Law and regulations at the Culpeper County Industrial Airpark sewage treatment plant located in Culpeper, Virginia. The State Water Control Board proposes to issue a consent order to resolve violations associated with the Culpeper County Industrial Airpark sewage treatment plant. A description of the proposed action is available at the Department of Environmental Quality office listed or online at www.deq.virginia.gov. Benjamin Holland will accept comments by email at benjamin.holland@deq.virginia.gov or by postal mail at Department of Environmental Quality, Northern Regional Office, 13901 Crown Court, Woodbridge, VA 22193, from September 29, 2020, through October 29, 2020.

Proposed Amendment for the Town of Edinburg

The State Water Control Board proposes to issue an amendment to the Town of Edinburg for the Edinburg sewage treatment plant, which includes injunctive relief for a proposed upgrade of the facility. A description of the proposed amendment is available at the Department of Environmental Quality office listed or online at www.deq.virginia.gov. Eric Millard will accept comments by email at eric.millard@deq.virginia.gov, FAX at (540) 574-7878, or postal mail at Department of Environmental Quality, Valley Regional Office, 4411 Early Road, P.O. Box 3000, Harrisonburg, VA 22801, from September 28, 2020, to October 28, 2020.

Proposed Consent Order for
McLane/Mid-Atlantic Inc.

An enforcement action has been proposed for McLane/Mid-Atlantic Inc. for violations of the State Water Control Law and regulations associated with the McLane/Mid-Atlantic facility located at 56 McLane Drive in Falmouth, Virginia. The State Water Control Board proposes to issue a consent order to resolve violations associated with the McLane facility. A description of the proposed action is available at the Department of Environmental Quality office listed or online at www.deq.virginia.gov. Stephanie Bellotti will accept comments by email at stephanie.bellotti@deq.virginia.gov or postal mail at Department of Environmental Quality, Northern Regional Office, 13901 Crown Court, Woodbridge, VA 22193, from September 29, 2020, through October 29, 2020.

Proposed Consent Order for the City of Winchester

An enforcement action has been proposed for the City of Winchester for violations at the City of Winchester wastewater collection system. The State Water Control Board proposes to issue a consent order with penalty and injunctive relief to the City of Winchester to address noncompliance with State Water Control Law. A description of the proposed action is available at the Department of Environmental Quality office listed or online at www.deq.virginia.gov. Eric Millard will accept comments by email  at eric.millard@deq.virginia.gov, FAX at (540) 574-7878, or postal mail at Department of Environmental Quality, Valley Regional Office, 4411 Early Road, P.O. Box 3000, Harrisonburg, VA 22801, from September 28, 2020, to October 28, 2020.

Total Maximum Daily Load for Buffalo River, Long Branch, Rutledge Creek, Mill Creek, and Turner Creek Watersheds

The Department of Environmental Quality (DEQ) seeks written and oral comments from interested persons on the draft TMDL Implementation Plan (IP) for bacteria and sediment total maximum daily loads (TMDLs) for Buffalo River, Long Branch, Rutledge Creek, Mill Creek, and Turner Creek watersheds in Amherst County. These streams were listed as impaired on the Virginia's § 303(d) TMDL Priority List and Report due to exceedances of the state's water quality standard for bacteria. The following are the names of the bacteria "impaired" streams, the length of the impaired segments, and the reason for the impairments: Buffalo River, 23.48 miles, bacteria; Buffalo River, 2.09 miles, sediment; Long Branch, 3.59 miles, sediment; Mill Creek, 4.15 miles, bacteria; Rutledge Creek, 7.48 miles, bacteria; Turner Creek, 4.49 miles, bacteria. For previous meeting minutes please visit the DEQ Implementation Planning Progress page at https://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/TMDL/TMDLImplementation/TMDLImplementationProgress.aspx#Buffalo%20River.

The TMDL studies for these stream impairments were completed in June 2013 and July 2013 and can be found, respectively, in the Bacteria Total Maximum Daily Load Development for Hat Creek, Piney River, Rucker Run, Mill Creek, Rutledge Creek, Turner Creek, Buffalo River, and Tye River in Nelson County and Amherst County, Virginia report is available at https://www.deq.virginia.gov/portals/0/DEQ/
Water/TMDL/apptmdls/jamesrvr/tyetribsbact.pdf
; the Sediment TMDL Development Report for Benthic Impairments in Long Branch and Buffalo River Amherst County, Virginia report  is available at https://www.deq.virginia.gov/portals/0/DEQ/Water/TMDL/apptmdls/jamesrvr/longbuffsed.pdf.

Section 62.1-44.19:7 C of the Code of Virginia requires the development of an IP for approved TMDLs. The IP should provide measurable goals and the date of expected achievement of water quality objectives. The IP should also include the corrective actions needed and their associated costs, benefits, and environmental impacts.

Given the current State of Emergency related to the COVID-19 pandemic, this meeting will be held entirely virtually to discuss the draft implementation plan for the Buffalo River watersheds. At this meeting, the process by which the implementation plan was developed to restore water quality in the watersheds will be discussed and citizens will learn how they can be part of the water quality improvement process.

A computer or a telephone are necessary to participate virtually. All participants are encouraged to access the meeting using a computer to view presentations or visual displays, although audio only participation using a phone is also an option. The URL to access the virtual meeting is provided at the end of this notice. If meeting participants experience any interruption in the meeting broadcast, they should call the technical support line that is also provided at the end of this notice.

Buffalo River TMDL Implementation Plan Final Public Meeting: Tuesday, October 20, 2020, from 6 p.m. to 8 p.m. This meeting will be held virtually. Please register in advance using the following link: https://attendee.gotowebinar.com/register/4106924828708741648.

For technical assistance during the meeting call (804) 698-4470 or email kevin.vaughan@deq.virginia.gov.

DEQ accepts written comments by email, fax, or postal mail. The 30-day public comment period on the information presented at the meeting will begin on October 20, 2020, and ends November 20, 2020. Questions or information requests should be addressed to James Moneymaker with the Department of Environmental Quality. Written comments and inquiries should include the name, address, and telephone number of the person submitting the comments and should be sent to the following:

James Moneymaker, Department of Environmental Quality, Blue Ridge Regional Office, 901 Russell Drive, Salem, VA 24153, telephone (540) 562-6738, email james.moneymaker@deq.virginia.gov, or FAX (540) 562-6725.

In the event the Governor's State of Emergency is lifted, the meeting will be held on the same date and time at the: Department of Environmental Quality, Blue Ridge Regional Office, Training Room, 901 Russell Drive, Salem, VA 24153.

VIRGINIA CODE COMMISSION

Notice to State Agencies

Contact Information: Mailing Address: Virginia Code Commission, Pocahontas Building, 900 East Main Street, 8th Floor, Richmond, VA 23219; Telephone: (804) 698-1810; Email: varegs@dls.virginia.gov.

Meeting Notices: Section 2.2-3707 C of the Code of Virginia requires state agencies to post meeting notices on their websites and on the Commonwealth Calendar at https://commonwealthcalendar.virginia.gov.

Cumulative Table of Virginia Administrative Code Sections Adopted, Amended, or Repealed: A table listing regulation sections that have been amended, added, or repealed in the Virginia Register of Regulations since the regulations were originally published or last supplemented in the print version of the Virginia Administrative Code is available at http://register.dls.virginia.gov/documents/cumultab.pdf.

Filing Material for Publication in the Virginia Register of Regulations: Agencies use the Regulation Information System (RIS) to file regulations and related items for publication in the Virginia Register of Regulations. The Registrar's office works closely with the Department of Planning and Budget (DPB) to coordinate the system with the Virginia Regulatory Town Hall. RIS and Town Hall complement and enhance one another by sharing pertinent regulatory information.

ERRATA

BOARD OF HOUSING AND COMMUNITY DEVELOPMENT

Title of Regulation: 13VAC5-63. Virginia Uniform Statewide Building Code.

Publication: 36:12 VA.R. 1581-1747 February 3, 2020.

Corrections to Proposed Regulation:

In 13VAC5-63-210 S,

Page 1609, column two, subdivision 17, Exception, line 3, after "door" replace "if" with "provided" and after "that" insert "the"

Page 1631, column two, P3012.9 Certification., after "Certification." replace "The permit holder" with "A certification"; after "shall" replace "provide a certification" with "be provided"; and after "official" insert ", from the permit holder,"

VA.R. Doc. No. R19-5887; Filed September 11, 2020, 8:36 a.m.