Title of Regulation: 9VAC15-100. Small Energy Storage Facilities Permit by Rule (adding 9VAC15-100-10 through 9VAC15-100-130).

Statutory Authority: §§ 10.1-1197.5 and 10.1-1197.6 of the Code of Virginia.

Effective Date: January 1, 2022.

Agency Contact: 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.

Summary:

Pursuant to Chapter 419 of the 2021 Acts of Assembly, Special Session I, the action creates a new regulation, Small Energy Storage Facilities Permit by Rule (9VAC15-100), a permit by rule regulation for energy storage facilities 150 megawatts or less. The regulation establishes criteria, procedures, and permit requirements for a complete application to construct and operate a small energy storage facility. Key application criteria include a public notice and comment period, local government approval, interconnection requirements, natural and cultural resource assessments, site plan, context map, and a fee structure that should be sufficient to support the program.

Chapter 100

Small Energy Storage Facilities Permit by Rule

9VAC15-100-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

"Administratively complete application" means an application the department has determined meets the requirements of this chapter.

"Applicant" means the developer, owner, or operator that submits an application to the department for a permit by rule pursuant to this chapter.

"Archaeological field survey" means systematic identification-level archaeological investigations as described in DHR's guidelines for conducting historic resources surveys within the project area and submission of necessary documentation to DHR with recommendations on eligibility of identified resources for listing in the Virginia Landmarks Register and National Register of Historic Places.

"Architectural field survey" means comprehensive, reconnaissance-level documentation as described in DHR's guidelines for conducting historic resources surveys of all standing buildings or structures 50 years of age or older within the project area and surrounding areas with a view to the facility and submission of necessary documentation to DHR with recommendations on eligibility of identified resources for listing in the Virginia Landmarks Register and National Register of Historic Places.

"Begin commercial operation" means to have begun to store and discharge electricity for sale to the grid. This does not include testing to ensure the facility will not cause a reliability problem for the electrical grid system.

"Begin construction" means a continuous program of construction or land-disturbing activity necessary to construct a small energy storage project.

"DACS" means the Department of Agriculture and Consumer Services.

"Department" or "DEQ" means the Department of Environmental Quality, the department's director or the director's designee.

"DCR" means the Department of Conservation and Recreation.

"DHR" means the Department of Historic Resources.

"Disturbance zone" means the area within the site directly impacted by land-disturbing activity, including construction and operation of the small energy storage facility and 100 feet from the boundary of the directly impacted area. A facility located within an urban area, as defined by the U.S. Census Bureau, provided it is not a hybrid facility, will be subject to local government zoning requirements. Hybrid facilities will be subject to the requirements of any other small renewable energy project permit by rule regulation that is applicable.

"Document certification" means the statement as prescribed in 9VAC15-100-30 B 2 a, signed by the responsible person and submitted with the application documents or any supplemental information submitted to the department for a PBR.

"DWR" means the Department of Wildlife Resources.

"Historic resource" means any prehistoric or historic district, site, building, structure, object, or cultural landscape that is included or meets the criteria necessary for inclusion in the Virginia Landmarks Register pursuant to the authorities of § 10.1-2205 of the Code of Virginia and in accordance with 17VAC5-30-40 through 17VAC5-30-70.

"Hybrid renewable energy and storage facility" or " hybrid facility" means a small energy storage facility and an electrical generation facility that is one of the following: (i) an electrical generation facility with a rated power capacity not exceeding 150 MW in alternating current (AC) that generates electricity only from sunlight or wind with an energy storage facility with a rated power capacity that does not exceed 150 MW in AC; (ii) an electrical generation facility with a rated power capacity not exceeding 100 MW in AC that generates electricity only from falling water, wave motion, tides, or geothermal power with an energy storage facility with a rated power capacity that does not exceed 100MW in AC; or (iii) an electrical generation facility with a rated power capacity not exceeding 20 MW in AC that generates electricity only from biomass, energy from waste, or municipal solid waste with an energy storage facility with a rated power capacity that does not exceed 20 MW in AC.

"Interconnection point" means the point where the small renewable energy project connects to a project substation for transmission to the electrical grid.

"Land disturbance" or "land-disturbing activity" means a man-made change to the land surface that potentially changes the land surface's runoff characteristics, including clearing, grading, or excavation, except that the term shall not include those exemptions specified in § 62.1-44.15:34 of the Code of Virginia.

"Megawatt" or "MW" means a measurement of power; 1,000 kilowatts equals one MW.

"Natural heritage resource" means the habitat of rare, threatened, or endangered plant and animal species, rare or state significant natural communities or geologic sites, and similar features of scientific interest benefiting the welfare of the citizens of the Commonwealth.

"Notice of Intent" or "NOI" means notification, in a manner acceptable to the department, by an applicant stating intent to submit documentation for a permit under this chapter.

"Operator" means the person responsible for the overall operation and management of a small energy storage facility.

"Owner" means the person that owns all, a portion of, or has all or a controlling interest in a small energy storage facility.

"Permit by rule," "PBR," or "permit" means provisions of the regulation stating that a project or activity is deemed to have a permit if it meets the requirements of the provision.

"Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, any interstate body, or any other legal entity.

"Preconstruction" means any time prior to beginning land-disturbing activities necessary for the installation of energy generating or energy storage structures at the facility.

"Previously disturbed or repurposed area" means the land area within the property boundary of industrial or commercial properties, including brownfields, or previously mined areas. It does not include active or fallow agricultural land or silvicultural land use.

"Project" refers to all aspects of small energy storage facility development, including planning, permitting, construction and commissioning.

"Rated power capacity" means the maximum amount of stored energy of the energy storage system in kilowatt-hours or megawatt-hours that can be delivered to the grid.

"Responsible person" means:

1. For a corporation or limited liability company, a president, secretary, treasurer, or vice-president in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation or limited liability company or is subject to Title 13.1 of the Code of Virginia;

2. For partnership or sole proprietorship, a general partner or the proprietor, respectively; and

3. For a local government entity subject to Title 15.2 of the Code of Virginia or state, federal, or other public agency, either a principal executive officer or ranking elected official.

"Retrofit" means the addition of an energy storage facility to an existing, permitted small renewable energy project.

"Site" means the area of a project that is under common ownership or operating control. Electrical infrastructure and other appurtenant structures up to the interconnection point shall be considered to be within the site.

"Small energy storage facility" or "facility" means an energy storage facility that uses electrochemical cells to convert chemical energy with a rated power capacity not exceeding 150 MW in AC.

"Small renewable energy project" means (i) an electrical generation facility with a rated power capacity not exceeding 150 MW that generates electricity only from sunlight or wind; (ii) an electrical generation facility with a rated capacity not exceeding 100 MW that generates electricity only from falling water, wave motion, tides, or geothermal power; (iii) an electrical generation facility with a rated power capacity not exceeding 20 MW that generates electricity only from biomass, energy from waste, or municipal solid waste; (iv) an energy storage facility that uses electrochemical cells to convert chemical energy with a rated power capacity not exceeding 150 MW; or (v) a hybrid project composed of an electrical generation facility that meets the parameters established in subdivision (i), (ii), or (iii) of this definition and an energy storage facility that meets the parameters established in subdivision (iv) of this definition.

"Threatened and endangered," "T&E," "state threatened or endangered species," or "state-listed species" means (i) any wildlife species designated as a Virginia endangered or threatened species by DWR pursuant to the §§ 29.1-563 through 29.1-570 of the Code of Virginia and 4VAC15-20-130 or (ii) any species designated as a Virginia endangered or threatened species by DACS pursuant to §§ 3.2-1000-through 3.2-1100 of the Code of Virginia and 2VAC5-320-10.

"Virginia Natural Landscape Assessment Ecological Cores" means large patches of natural land with at least 100 contiguous acres of interior, which begins 100 meters inward from the nearest edge between natural and unnatural land covers identified by DCR.

"VLR" means the Virginia Landmarks Register.

"VLR-eligible" means those historic resources that meet the criteria necessary for inclusion on the VLR pursuant to 17VAC5-30-40 through 17VAC5-30-70 but are not listed in VLR.

"VLR-listed" means those historic resources that have been listed in the VLR in accordance with the criteria of 17VAC5-30-40 through 17VAC5-30-70.

"Wildlife" means wild animals; except, however, that T&E insect species shall be considered T&E wildlife.

9VAC15-100-20. Applicability.

A. This chapter applies throughout the Commonwealth of Virginia. Nothing in this chapter shall be interpreted to affect the rights of a private property owner.

B. A permit by rule shall be required for small energy storage facilities with a disturbance zone greater than 10 acres.

C. Facilities with a disturbance zone less than or equal to 10 acres shall comply with the requirements of 9VAC15-100-130. Facilities that meet the requirements of that section are deemed to be covered by the permit by rule.

9VAC15-100-30. Application for permit by rule for small energy storage facilities with a disturbance zone greater than 10 acres.

A. The application for a small energy storage facility with a disturbance zone greater than 10 acres, provided that the project does not otherwise meet the criteria for 9VAC15-100-130, shall contain all of the following:

1. An NOI to submit the necessary documentation for a permit by rule, to be published by the department in the Virginia Register of Regulations.

a. The applicant shall submit the NOI in a form approved by the department.

(1) The initial NOI shall be submitted to the department as early in the project development process as practicable, but at least 90 days prior to the start of the public comment period required under 9VAC15-100-90.

(2) The NOI shall be submitted to the chief administrative officer and chief elected official of the locality in which the project is proposed to be located the same time the NOI is submitted to the department.

b. The NOI shall expire if no application has been submitted within 48 months from the NOI submittal date unless the department receives a written request for extension prior to the NOI expiration date. A NOI extension may be granted for an additional 36 months at which time the NOI shall expire.

c. An applicant seeking changes for a project that results in an increase of acreage shall submit a new NOI using the form approved by the department.

d. The applicant shall notify the department of any change of operator, ownership, or controlling interest for a project within 30 days of the transfer. No additional fee shall be assessed.

(1) The original applicant shall notify the department of the change by withdrawing the initial NOI in a form acceptable to the department.

(2) The new applicant shall submit a NOI in a form acceptable to the department.

(3) The department will not consider the change of operator, ownership, or controlling interest for a project effective until the department receives notification from both the original applicant and the new applicant.

2. A certification by the governing body of the locality in which the small renewable energy facility will be located that the project complies with all applicable land use ordinances.

3. Copies of all interconnection studies undertaken by the regional transmission organization or transmission owner, or both, on behalf of the project.

4. A copy of the final interconnection agreement, between the project and the regional transmission organization or transmission owner indicating that the connection of the project will not affect system reliability.

a. If the final agreement is not available, the most recent interconnection study shall be sufficient for the purposes of this subsection.

b. The final agreement shall be provided to the department within 30 days of the date of execution.

c. The department will forward a copy of the agreement or study to the State Corporation Commission.

5. A certification signed and stamped by a professional engineer licensed in Virginia that the maximum storage capacity of the facility, as designed, does not exceed 150 MW.

6. An analysis of potential environmental impacts of the project's operations on attainment of national ambient air quality standards (42 USC § 7409 as implemented by 9VAC5-30).

7. An analysis of the beneficial and adverse impacts of the proposed project on natural resources pursuant to 9VAC15-100-40. For wildlife, that analysis shall be based on information on the presence, activity, and migratory behavior of wildlife to be collected at the site for a period of time dictated by the site conditions and biology of the wildlife being studied, not exceeding 12 months.

8. A mitigation plan pursuant to 9VAC15-100-60 if a determination of likely significant adverse impacts has been made according to 9VAC15-100-50. The plan shall detail actions necessary to avoid, minimize, or otherwise mitigate such impacts, and to measure the efficacy of those actions.

9. A certification signed and stamped by a professional engineer licensed in Virginia that the facility is designed in accordance with 9VAC15-100-80.

10. An operating plan that includes a description of how the project will be operated and any mitigation plan required due to findings under 9VAC15-100-50.

11. A detailed site plan meeting the requirements of 9VAC15-100-70.

12. A certification signed by the applicant that the department has been notified that the applicant intends to apply for or has applied for or obtained all necessary environmental permits for the project.

13. A certification signed by the applicant that the project is being proposed, developed, constructed, or purchased by a person that is not a utility regulated pursuant to Title 56 of the Code of Virginia, or a certification that (i) the project's costs are not recovered from Virginia jurisdictional customers under base rates, a fuel factor charge, or a rate adjustment clause; or (ii) the applicant is a utility aggregation cooperative formed under Article 2 (§ 56-231.38 et seq.) of Chapter 9.1 of Title 56 of the Code of Virginia.

14. A summary report of the 30-day public review and comment period conducted pursuant to 9VAC15-100-90, including a summary of the issues raised by the public, any written comments received, and the applicant's response to those comments.

15. The appropriate fee pursuant to 9VAC15-100-110.

B. An applicant seeking a PBR under this chapter shall submit the following:

1. All items identified in subsection A of this section submitted in a format acceptable to the department and all applicable fees pursuant to 9VAC15-100-110.

2. A cover letter submitted with the application that contains the following:

a. Document certification signed by a responsible person that contains the following statement:

"I certify under penalty of law that this application document and all attachments were prepared under my direction or supervision in accordance with a system designed to ensure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering and evaluating the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there may be significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

b. The name and contact information of the responsible person signing the document certification required under subdivision 2 a of this subsection; and

c. The name and contact information of the responsible person to receive the permit authorization.

C. Within 90 days of receiving all of the required documents and fees listed in subsection A of this section, the department will, after consultation with DCR, DHR, and DWR, form a determination that an application is an administratively complete application or incomplete.

1. If the department determines that the application meets the requirements of this chapter, the department will form a determination that an application is an administratively complete application and notify the responsible person in writing that the person is authorized to construct and operate the facility pursuant to this chapter.

a. The authorization to construct and operate shall become invalid if (i) a program of continuous construction or modification or retrofit is not begun within 60 months from the date the PBR or modification or retrofit authorization is issued, or (ii) a program of construction or modification or retrofit is discontinued for a period of 24 months or more, except for a department-approved period between phases of a phased construction project. Routine maintenance is not considered either a modification or retrofit of a facility.

b. The department may grant an extension on a case-by-case basis.

c. The applicant for any project for which the PBR or modification authorization has been deemed invalid shall submit a new NOI, application documents, and appropriate fees to reactivate authorization.

2. If the department determines that the application does not meet the requirements of this chapter, the department will form a determination that an application is administratively incomplete, notify the applicant in writing, and specify the deficiencies.

3. If the applicant corrects deficiencies in an incomplete application, (i) the applicant shall notify the department within 30 days of an incomplete notification, (ii) the department will follow the procedures of this subsection, and (iii) the department will notify the applicant within 60 days whether the supplemental information meets the requirements of this chapter.

4. Any case decision by the department pursuant to this subsection shall be subject to the process and appeal provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC15-100-40. Analysis of the beneficial and adverse impacts on natural resources.

A. The applicant shall conduct a preconstruction wildlife analyses as follows.

1. The applicant shall prepare a wildlife report and map generated either (i) from DWR's Virginia Fish and Wildlife Information Service web-based application or (ii) from a data and mapping system including the most recent data available from DWR's subscriber-based Wildlife Environmental Review Map Service of known wildlife species and habitat features on the site or within two miles of the boundary of the site, known or potential sea turtle nesting beaches located within one-half mile of the disturbance zone, and desktop information for bald eagle nesting locations from the Center for Conservation Biology at the College of William and Mary.

2. The applicant shall assess and describe the expected beneficial and adverse impacts, if any, of the proposed project on wildlife identified by these studies and analyses.

B. The applicant shall perform a preconstruction historic resources analysis conducted by a qualified professional meeting the qualification standards of the Secretary of the Interior's Standards for Archeology and Historic Preservation in the appropriate discipline. Any study or analysis required under this subsection submitted to DHR for review may be considered accepted by DHR if DHR does not provide comments within 30 calendar days from confirmed receipt of an analysis determined to be administratively complete. In this case, the applicant may assume DHR concurrence with the recommendations of the study or analysis and proceed accordingly. The analysis shall include each of the following:

1. Information on known historic resources within the disturbance zone and within one-half mile of the disturbance zone boundary, identified on the context map referenced in 9VAC15-100-70 B, or as an overlay to this context map, as well as in tabular format.

2. An architectural field survey of all architectural resources, including cultural landscapes 50 years of age or older within the disturbance zone and within one-half mile of the disturbance zone boundary, and an evaluation of the eligibility of any identified resource for listing in the VLR. The architectural survey area may be refined by the applicant based on an analysis to exclude areas that have no direct view to the facility. The applicant shall provide detailed justification for any changes to the survey area.

3. An archaeological field survey of the disturbance zone and an evaluation of the eligibility of any identified archaeological site for listing in the VLR. To streamline archaeological investigations, the survey may be guided by a research design that utilizes a probability assessment or predictive modeling. Such a research design shall be approved by DEQ and DHR prior to conducting the fieldwork.

C. For projects subject to 9VAC15-100-120, the applicant shall conduct a preconstruction desktop survey of natural heritage resources and Virginia Natural Lands Assessment Ecological Cores within the disturbance zone within six months prior to the date of the application submittal. The analysis shall include a report of natural heritage resources using either the DCR online information service order form or the DCR subscriber-based Natural Heritage Data Explorer web application and include the most recent data available on the following:

1. Documented occurrences of natural heritage resources within 100 feet of the site;

2. Intersection of the site with predicated suitable habitat models developed by DCR for rare, threatened, and endangered species;

3. Intersection of the site with the Virginia Natural Landscape Assessment Ecological Cores; and

4. Onsite surveys for natural heritage resources recommended by DCR based on the analysis required under this subsection.

9VAC15-100-50. Determination of likely significant adverse impacts for applications.

A. The department will find that significant adverse impacts to wildlife are likely whenever the wildlife analyses prescribed in 9VAC15-100-40 A document that state-listed T&E wildlife species are found to occur within the disturbance zone or the disturbance zone is located on or within one-half mile of a known or potential sea turtle nesting beach.

B. The department will find that significant adverse impacts to historic resources are likely whenever the historic resources analyses prescribed by 9VAC15-100-40 B indicate that the proposed project is likely to diminish significantly any aspect of a historic resource's integrity.

C. For projects subject to 9VAC15-100-120, the department will find that significant adverse impacts to natural heritage resources and ecological cores are likely whenever the analysis prescribed by any other small renewable energy project permit by rule regulation is applicable indicates that that significant adverse impacts are likely.

9VAC15-100-60. Mitigation plan.

A. The applicant shall prepare a mitigation plan for any resource for which a significant adverse impact determination has been made as a result of the analysis pursuant to 9VAC15-100-50. The plan shall detail actions by the applicant to avoid, minimize, or otherwise mitigate such impacts and shall be an enforceable part of the PBR.

B. Mitigation measures for significant adverse impacts to wildlife shall include the following.

1. For state-listed T&E wildlife, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed actions are reasonable. These additional proposed actions may include best practices to avoid, minimize, or offset adverse impacts to resources analyzed pursuant to 9VAC15-100-40 A or C.

2. For proposed projects where the disturbance zone is located on or within one-half mile of a known or potential sea turtle nesting beach, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed mitigation actions are reasonable. Mitigation measures shall include the following.

a. Avoiding construction within likely sea turtle crawl or nesting habitats during the turtle nesting and hatching season (May 20 through October 31). If avoiding construction during this period is not possible, then conducting daily crawl surveys of the disturbance zone (May 20 through August 31) and one mile beyond the northern and southern reaches of the disturbance zone (sea turtle nest survey zone) between sunrise and 9 a.m. by qualified individuals who have the ability to distinguish accurately between nesting and non-nesting emergences.

b. If construction is scheduled during the nesting season, including measures to protect nests and hatchlings found within the sea turtle nest survey zone.

c. If nighttime construction cannot be avoided, designing project lighting during the construction and operational phases to minimize impacts on nesting sea turtles and hatchlings. Proposed project lighting must be submitted to DWR and the U.S. Fish and Wildlife Service for approval prior to construction.

C. Mitigation measures for significant adverse impacts to historic resources shall include the following.

1. Significant adverse impacts to VLR-eligible or VLR-listed architectural resources shall be minimized to the extent practicable through project design or the installation of vegetative or other screening.

2. If significant adverse impacts to VLR-eligible or VLR-listed architectural resources cannot be avoided or minimized such that impacts are no longer significantly adverse, then the applicant shall develop a reasonable and proportionate mitigation plan that offsets the significantly adverse impacts and has a demonstrable public benefit and benefit for the affected or similar resource.

3. If any identified VLR-eligible or VLR-listed archaeological site cannot be avoided or minimized to such a degree as to avoid a significant adverse impact, significant adverse impacts of the project will be mitigated through archaeological data recovery.

D. For projects subject to 9VAC15-100-120, mitigation measures for significant adverse impacts to natural heritage resources shall be as required for any other small renewable energy project permit by rule regulation that is applicable.

9VAC15-100-70. Site plan and context map requirements.

A. The applicant shall submit a site plan that includes maps showing the physical features, topography, and land cover of the area within the site, both before and after construction of the proposed project. The site plan shall be submitted at a scale sufficient to show and shall include the following: (i) the boundaries of the site, disturbance zone with 100 foot buffer or local zoning setback requirement as applicable, storage infrastructure, open areas, and screening areas; (ii) the location, height, and dimensions of all existing and proposed energy storage systems, other structures, fencing, and other infrastructure; (iii) the location, grades, and dimensions of all temporary and permanent onsite and access roads from the nearest county or state maintained road; (iv) water bodies, waterways, wetlands, and drainage channels; and (v) for facilities subject to 9VAC15-100-30, the location of any mitigation measures and resources subject to mitigation.

B. The applicant shall submit a context map including the area encompassed by the site and within five miles of the site boundary. The context map shall show state and federal resource lands and other protected areas, Chesapeake Bay Resource Protection Areas pursuant to 9VAC25-830-80, historic resources, state roads, waterways, locality boundaries, forests, open spaces, farmland, brownfield sites, and transmission and substation infrastructure.

C. The applicant shall submit post-construction site maps to the department within six months after beginning commercial operation that show the physical features, topography, and land cover of the area within the site. The maps shall contain the following:

1. The boundaries of the site, disturbance zone with 100-foot buffer or local zoning setback requirement as applicable, open areas, and screening areas;

2. Infrastructure placement;

3. Mitigation required pursuant to 9VAC15-100-60, as applicable; and

4. Location of any avoided cultural resources.

9VAC15-100-80. Small energy storage facility design standards and operational plans.

A. The design and installation of the small energy storage facility shall incorporate any requirements of the mitigation plan that pertain to design and installation if a mitigation plan is required pursuant to 9VAC15-100-50 or 9VAC15-100-60 as applicable.

B. The applicant shall prepare an operation plan detailing operational parameters for the project, including (i) remote monitoring or staffing requirements, (ii) emergency procedures and contacts, (iii) vegetation to be used within the disturbance zone and 100-foot buffer or local zoning setback requirement as applicable, and (iv) application frequency of pesticides or herbicides over the life of the project. Owners and operators are encouraged to utilize the link to the DACS Fieldwatch in 9VAC15-100-120 B 6 prior to the application of either pesticides or herbicides.

9VAC15-100-90. Public participation.

A. The applicant shall conduct a public comment period for public review of all application documents required by 9VAC15-100-30 and include a summary report of the public comment as part of the PBR application. The report shall include documentation of the public comment period and public meeting and include a summary of the issues raised by the public, any written comments received, and the applicant's response to those comments.

B. The applicant shall publish a notice announcing a 30-day comment period. The notice shall be published once a week for two consecutive weeks in a local newspaper of general circulation where the project is to be located. The notice shall include the following:

1. A brief description of the proposed project and its location, including the approximate dimensions of the site, approximate number and configuration of energy storage systems, and approximate maximum height of energy storage systems;

2. A statement that the purpose of the public participation is to (i) acquaint the public with the technical aspects of the proposed project and how the standards and the requirements of this chapter will be met, (ii) identify issues of concern, (iii) facilitate communication, and (iv) establish a dialogue between the owner or operator and persons that may be affected by the project;

3. Announcement of a 30-day comment period in accordance with subsection D of this section, and the name, telephone number, address, and email address of the applicant who can be contacted by the interested persons to answer questions or to whom comments shall be sent;

4. Announcement of the date, time, and place for a public meeting held in accordance with subsection E of this section; and

5. Location where copies of the documentation to be submitted to the department in support of the permit by rule application will be available for inspection.

C. The owner or operator shall place a copy of the documentation in a location accessible to the public during business hours for the duration of the 30-day comment period in the vicinity of the proposed project.

D. The public shall be provided at least 30 days to comment on the technical and the regulatory aspects of the proposal. The comment period shall begin no sooner than 15 days after the applicant initially publishes the notice in the local newspaper.

E. The applicant shall hold a public meeting not earlier than 15 days after the beginning of the 30-day public comment period and no later than seven days before the close of the 30-day comment period. The meeting shall be held in the locality or, if the project is located in more than one locality, in a place proximate to the location of the proposed project.

F. For purposes of this chapter, the applicant and any interested party who submits written comments on the proposal to the applicant during the public comment period or who signs in and provides oral comments at the public meeting shall be deemed to have participated in the proceeding for a permit by rule under this chapter and pursuant to § 10.1-1197.7 B of the Code of Virginia

9VAC15-100-100. Permit by rule change of ownership, project modifications, reporting, and permit termination.

A. A PBR may be transferred to a new owner or operator through an administrative amendment to the permit. The department will incorporate the administrative changes to the PBR after the receipt of notification of the change in a form acceptable to the department, including a written agreement between the existing and new owner or operator containing a specific date for transfer of permit responsibility, coverage, and liability between them. The transfer of the PBR to the new owner or operator shall be effective on the date specified in the written agreement. Information required for a change of ownership shall be submitted to the department within 30 days of the transfer date. The department will not consider the change of operator, ownership, or controlling interest for a facility to be effective until the department receives notification from both the original applicant and the new applicant.

B. A PBR name may be changed through an administrative amendment to the permit as follows.

1. Information required for a change of ownership shall be submitted to the department within 30 days of the change date.

2. The department will incorporate the administrative changes to the PBR after receipt of the notification in a form acceptable to the department.

C. Modification to an existing PBR, with the exception of administrative changes, shall be in accordance with the provisions of 9VAC15-100-30 B and as follows.

1. The applicant shall submit the modification application and include the facility address, documents, maps, and studies supporting the changes to the existing permit. Information that is unchanged in the existing PBR shall not be submitted. Unchanged information shall be identified and certified as unchanged in the modification application.

2. In addition to the information required in subdivision 1 of this subsection, a modification to an existing PBR shall also require a certification from the local government pursuant to 9VAC15-100-30 A 2, a public comment period pursuant to 9VAC15-100-90, and the appropriate fee pursuant to 9VAC15-100-110.

3. Upon receipt of all required documents and applicable fees, the department will review the modification submittal in accordance with the provisions of 9VAC15-100-30 C.

D. Recordkeeping and reporting shall be performed as follows.

1. The owner or operator shall furnish notification of the following milestones:

a. The date the project began construction within 30 days after such date;

b. The date the project began commercial operation within 30 days of such date;

c. The date of any onsite construction or maintenance that could impact the project's mitigation and avoidance plan within 15 days after such date;

d. A map of the project post construction clearly showing infrastructure configuration relative to any required mitigation and incorporates any onsite changes resulting from any onsite construction or maintenance that could impact the project mitigation and avoidance plan within 90 days of completion of such work; and

e. For projects that contain mitigation for historic resources, a post-construction demonstration of completed mitigation requirements according to the approved mitigation within 90 days of completion of such work.

2. A copy of the site map clearly showing any resources to be avoided or mitigated shall be maintained onsite during construction.

3. Upon request, the owner shall furnish to the department copies of records required to be kept by this PBR.

4. Within 30 days of notification, any information requested by the department.

E. The department may enforce provisions of this chapter in accordance with §§ 10.1-1197.9, 10.1-1197.10, and 10.1-1197.11 of the Code of Virginia. In so doing, the department may:

1. Issue directives in accordance with the law;

2. Issue special orders in accordance with the law;

3. Issue emergency special orders in accordance with the law;

4. Seek injunction, mandamus, or other appropriate remedy as authorized by the law;

5. Seek civil penalties under the law; or

6. Seek remedies under the law, or under other laws including the common law.

F. Pursuant to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), terminate the permit by rule whenever the department finds that the applicant has:

1. Knowingly or willfully misrepresented or failed to disclose a material fact in any report or certification required under this chapter;

2. Failed to comply with the conditions or commitments stated within the permit by rule application; or

3. Violated the project's mitigation plan.

9VAC15-100-110. Fees.

A. Fees shall be collected for an application for a PBR or an application to retrofit an existing PBR for a project subject either to 9VAC15-100-30 or 9VAC15-100-130. No fee shall be required for administrative permit changes pursuant to 9VAC15-100-100 A or B.

B. Fees for PBR applications or retrofits shall be paid by the applicant as follows.

1. All permit application and retrofit fees if applicable are due at the time of application or retrofit submittal.

2. Fees shall be collected utilizing, where practicable, an online payment system. Until such system is operational, fees shall be paid by check, draft, or postal money order made payable to "Treasurer of Virginia/DEQ" and shall be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 1104, Richmond, VA 23218.

a. Fees shall be in United States currency, except that agencies and institutions of the Commonwealth of Virginia may submit interagency transfers for the amount of the fee.

b. The department may provide a means to pay fees electronically. When fees are collected electronically pursuant to this section through credit cards, business transaction costs to the department associated with processing such payments may be assessed.

3. All incomplete payments shall be deemed nonpayment.

4. No PBR application, modification, or retrofit will be deemed complete until the department receives proper payment.

a. Interest may be charged for late payments at the underpayment rate set forth in § 58.1-15 of the Code of Virginia and is calculated on a monthly basis at the applicable periodic rate. A 10% late payment fee shall be charged to any delinquent (over 90 days past due) account.

b. The department is entitled to all remedies available under the Code of Virginia in collecting any past due amount.

C. Each application for a PBR and each retrofit of a PBR is a separate action and shall be assessed a separate fee. The fee for a permit application or retrofit is identified in Table 1.

Table 1
Facility Type and Size	Permit Fee
Project with a disturbance zone less than or equal to 10 acres	$2,500
Project with a disturbance zone greater than 10 acres	$5,000
Retrofit project	$500

D. All applicants, unless otherwise specified by the department, shall submit the following information along with the fee payment in a form acceptable to the department and include the following information:

1. Applicant name, address, and daytime telephone number;

2. Responsible person name, address, and daytime telephone number if different from the applicant;

3. Name of the project and project location;

4. Whether the fee is for a new PBR issuance or permit retrofit;

5. The amount of fee submitted; and

6. The existing permit number.

9VAC15-100-120. Hybrid projects.

A. Applicants for a hybrid renewable energy and storage facility shall submit one application combining and satisfying the requirements of 9VAC15-100-30 and the application requirements for any other small renewable energy project that is applicable. The department may request any additional information beyond that listed in this section as needed in order that the application and final permit be correct and complete.

B. Applicants for a hybrid facility may combine the requirements for an analysis of the beneficial and adverse impacts on natural resources under 9VAC15-100-40 with those for similar analyses that are required for any other small renewable energy project that is applicable.

C. Applicants for a hybrid facility may combine the mitigation plan requirements of 9VAC15-100-60 with the mitigation plan requirements for any other small renewable energy project that is applicable.

D. Applicants for a hybrid facility may combine the site plan and context map requirements of 9VAC15-100-70 with the site plan and context map requirements for any other small renewable energy project that is applicable.

E. Applicants for a hybrid facility may combine the public participation requirements of 9VAC15-100-90 with the public participation requirements for any other small renewable energy project that is applicable.

F. Applicants for a hybrid facility are not subject to the fee for the small energy storage facility portion of the hybrid facility project set forth in 9VAC15-100-110.

G. The rated capacity of the small energy storage portion of a hybrid renewable energy and storage facility is not added to that of any other small renewable energy project that is part of the overall hybrid facility when determining the hybrid facility's qualification for a permit by rule.

H. The addition of a small energy storage facility subject to this chapter, if identified on the site plan of a permit by rule for a constructed or operating small renewable energy project, shall not be considered a modification to the small renewable energy project.

I. The addition of an electrical storage facility adjacent but beyond the approved site plan of an existing small renewable energy project shall not be considered a hybrid project.

9VAC15-100-130. Small energy storage facilities with a disturbance zone less than or equal to 10 acres or meeting certain categorical criteria.

A. Facilities meeting one of the following conditions shall be subject to this section:

1. Facilities with a disturbance zone less than or equal to 10 acres; or

2. Facilities located on previously disturbed or repurposed areas without regard to the size of the disturbance zone, or the rated power capacity is less than or equal to 150 MW and any impact to undisturbed areas is less than or equal to 10 acres.

B. An application for a PBR under this section shall contain the following:

1. The NOI in a form acceptable to the department;

2. A certification by the governing body of the locality wherein the project will be located that the project complies with all applicable land use ordinances;

3. An interconnection agreement pursuant to 9VAC15-100-30 A 4;

4. A certification signed and stamped by a professional engineer licensed in Virginia that the maximum storage capacity of the facility, as designed, does not exceed 150 MW;

5. A detailed site plan meeting the requirements of 9VAC15-100-70;

6. A certification signed by the applicant that the department has been notified that the applicant intends to apply for or has applied for or obtained all necessary environmental permits for the project; and

7. The appropriate fee pursuant to 9VAC15-100-110.

C. An applicant seeking a PBR under this subsection shall submit the application documents according to the requirements of 9VAC15-100-30 B 2.

D. The owner or operator of a PBR must provide notification to DEQ of operation within 30 days of the start of operation.

E. A facility with a rated power capacity equal to or less than one MW is not required to submit any notification or certification to the department.