Titles of Regulations: 20VAC5-355. Rules Governing Operator's Responsibilities to Redistribute Topsoil (adding 20VAC5-355-10, 20VAC5-355-20, 20VAC5-355-30)

20VAC5-355. Rules Governing Operator's Responsibility to Redistribute Topsoil (adding 20VAC5-355-10, 20VAC5-355-20, 20VAC5-355-30).

Statutory Authority: §§ 12.1-13 and 56-257.5 of the Code of Virginia.

Effective Date: July 1, 2021.

Agency Contact: Lauren Govoni, Deputy Director, Division of Utility and Railroad Safety, State Corporation Commission, Tyler Building, 1300 East Main Street, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9590, FAX (804) 371-9734, or email lauren.govoni@scc.virginia.gov.

Summary:

Pursuant to Chapter 666 of the 2020 Acts of Assembly, the new regulation requires a utility company installing an underground pipeline or conduit with an inside diameter greater than 12 inches or an underground electric transmission or distribution line of greater than 115 kilovolts in capacity to mitigate the effects of the project if the project disturbs 10,000 square feet or more of agricultural land by removing topsoil from the planned construction site and either redistributing it to graded areas elsewhere on the land of the affected property owner or storing it nearby protected from erosion and compaction for later redistribution on the disturbed area. Changes from the proposed regulation include (i) addressing areas outside of an operator’s easement, landowner and land management agency rights, and the location of stockpiled topsoil in provisions; (ii) clarification of operator duties relative to stockpiled topsoil; (iii) a public interest standard; and (iv) a requirement that operators take reasonable steps to protect stockpiled topsoil.

AT RICHMOND, JUNE 11, 2021

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. URS-2020-00378

Ex Parte: In the matter of adopting new

rules of the State Corporation Commission

governing operator's responsibilities to

redistribute topsoil under § 56-257.5

of the Code of Virginia

ORDER ADOPTING REGULATIONS

During its 2020 Session, the Virginia General Assembly enacted Chapter 666 (HB 723) of the 2020 Virginia Acts of Assembly ("Act"), which became effective on July 1, 2020. The Act, inter alia, amended the Code of Virginia by adding a section, § 56-257.5 to require the State Corporation Commission ("Commission") to establish rules by which operators are required to remove topsoil from certain planned construction sites and either redistribute it or store it for later redistribution on the disturbed area ("Proposed Rules").

On November 17, 2020, the Commission entered an Order for Notice and Comment in this proceeding, which among other things, permitted the filing of comments by interested persons and the Commission Staff ("Staff"). The Proposed Rules were attached to the Commission's Order for Notice and Comment. Washington Gas Light Company, Virginia-American Water Company, Virginia Natural Gas ("VNG"), and Virginia Electric and Power Company filed comments on the Proposed Rules.

Staff filed comments in the case on January 19, 2021 and filed Supplemental Comments on February 25, 2021.

NOW THE COMMISSION, upon consideration of the foregoing, finds that we should adopt the Rules appended hereto as Attachment A effective July 1, 2021. As an initial matter, the Commission expresses appreciation to those who have submitted written comments for our consideration. We have carefully reviewed and considered all comments filed in this matter.

The Rules we adopt herein contain a number of modifications to those that were first proposed by Staff and published in the Virginia Register of Regulations on December 7, 2020, as well as those proposed in Comments and Supplemental Comments. These modifications follow our consideration of the entire record in this proceeding. Although we will not comment on each Rule in detail here, all modifications are made for clarity and to further implement and support the statute.

Accordingly, IT IS ORDERED THAT:

(1) The rules governing operator's responsibilities to redistribute topsoil under § 56-257.5 of the Code of Virginia, as shown in Attachment A to this Order, are hereby adopted and are effective as of July 1, 2021.

(2) The Commission's Division of Information Resources shall forward a copy of this Order, with Attachment A, to the Registrar of Regulations for appropriate publication in the Virginia Register of Regulations.

(3) An electronic copy of this Order with Attachment A shall be made available on the Division of Utility and Railroad Safety's section of the Commission's website: scc.virginia.gov/pages/Rulemaking

(4) This docket is dismissed.

A COPY hereof shall be sent electronically by the Clerk of the Commission to all persons on the official Service List in this matter. The Service List is available from the Clerk of the Commission.

Chapter 355

Rules Governing Operator's Responsibility to Redistribute Topsoil

20VAC5-355-10. Applicability.

This chapter sets forth requirements for operators installing underground pipeline or conduit, with an inside diameter greater than 12 inches or an underground electric transmission or distribution line of greater than 115 kilovolts in capacity, to mitigate the effects of the project if the project disturbs 10,000 square feet or more of agricultural land. [ Such operators shall remove topsoil from the planned construction site and either redistribute the topsoil to graded areas elsewhere on the land of the affected property owner or store it nearby protected from erosion and compaction for later redistribution on the disturbed area. ]

20VAC5-355-20. Definitions.

The following terms shall have the following meanings, unless the context clearly indicates otherwise:

"Operator" means any person who owns, furnishes, or transports materials or services by means of a utility line.

"Topsoil" means at least 12 inches of the surface soil layer or a six-inch layer of soil that includes the surface soil and the unconsolidated subsoil immediately below it.

"Underground utility line" means an underground pipeline or conduit of an inside diameter greater than 12 inches or an underground electrical transmission or distribution line of a capacity greater than 115 kilovolts.

20VAC5-355-30. Operator's responsibilities to redistribute topsoil; waiver.

A. If any operator, in the course of installing an underground utility line, disturbs an area of land that measures 10,000 square feet or more and constitutes one or more agricultural operations, as defined in § 3.2-300 of the Code of Virginia, the operator shall [ , if desired provide written notice to the landowner or land management agency of their respective rights under § 56-257.5 of the Code of Virginia and this chapter, document any responses received, and if requested ] by the landowner or land management agency, take the following actions:

1. Redistribute the topsoil removed from the disturbed area to graded areas elsewhere on the land of the affected property [ owner inside or outside of the operator's easement, however the operator shall not also then be required to replace or replenish topsoil on the disturbed area ]; or

2. If insufficient graded areas are available as sites for such redistribution [ inside or outside of the operator's easement ], stockpile the [ removed ] topsoil [ removed from the disturbed area within or outside of the operator's easement ] until it can be redistributed on the area initially disturbed.

B. Operators redistributing topsoil pursuant to this section shall place the topsoil on scarified land [ and shall protect the topsoil from erosion and compaction ]. [ Operators also shall protect stockpiled topsoil from erosion and compaction by taking reasonable steps such as strategic placement, sediment management, temporary seeding, constructing silt fencing and other barriers, or employing other measures not inconsistent with Virginia State Water Control Board Erosion and Sediment Control Regulations (9VAC25-840) and Virginia Stormwater Management Program (VSMP) Regulation (9VAC25-870). ]

C. If the property owner does not agree to the redistribution of topsoil pursuant to this section, the topsoil shall be disposed of in accordance with other applicable law.

D. A request [ or for ] waiver of any of the provisions in this chapter shall be considered by the State Corporation Commission on a case-by-case basis and may be granted upon [ a finding that such waiver is in the public interest and on ] such terms and conditions as the State Corporation Commission may impose.