TITLE 9. ENVIRONMENT
DEPARTMENT OF ENVIRONMENTAL QUALITY
Initial Agency Notice
Title of Regulation: 9VAC15-60. Small Renewable Energy Projects (Solar) Permit by Rule.
Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
Name of Petitioner: Joni Lam.
Nature of Petitioner's Request: The following facts and deficiencies are submitted in response to Energix Renewable Energies 30-day comment period notice for the period November 9, 2022, through December 9, 2022, for a 15.68-megawatt Endless Caverns North Project utility scale solar site in Endless Caverns (and related Endless Caverns South). This comment period forms part and parcel of Energix's Permit by Rule (PBR) application to the Department of Environmental Quality (DEQ) dated October 2022. Because of Energix Renewable Energies' systematic abuse of the PBR process, this document is also a petition for DEQ to amend its existing regulation of solar project notices of intent (NOI). A copy of this PBR deficiency filing and included § 2.2-4007 of the Administrative Process Act petitions for new or amended regulations; opportunity for public comment has been filed with the DEQ, Governor of Virginia, the State Attorney General, and the petitioner's state and local representatives, as well as other interested parties.
Energix subverted community stakeholder interests and did not properly notify DEQ by its filing of a NOI until five months after its simultaneous December 8, 2021, preliminary site plan filing and the special use permit (SUP) vote. DEQ should mandate that all notices of intent for solar utilities under PBR be filed at least three months before the mandatory public meeting or six months before any county board of supervisor vote is taken on a special use permit. "As early in the project development process as practicable" should be further defined as "and at least three months before the mandatory public meeting or six months before any county board of supervisor vote." Any refiling of notices of intent after a special use permit is issued should trigger a restart of the public meeting and SUP vote, or DEQ will not consider the SUP submitted with PBRs as valid.
Energix has faced denial of permits or has been forced to withdraw its applications in New Kent County (New Kent Solar LLC, November 2022), Pulaski County (Energix Helios Solar LLC, October 2022), Caroline County (Energix Racehorse Solar, September 2022), Dinwiddie County (Energix Lily Pond Solar, October 2021), and Franklin County. It appears that Energix is trying to mislead communities about its record by filing materially misleading NOIs or filing them too late in the process to have any impact on permitting. DEQ should mandate that all notices of intent list the name of the owner-operator and the address of the official headquarters of the owner-operator, as opposed to misleading shared office space addresses.
As in Endless Caverns, Energix appears to be inundating counties and DEQ with proposed solar sites and with misleading NOIs in order to avoid HB206 environmental protections, which are to commence in 2024. DEQ should flag for extra scrutiny Energix PBR applications that have misleading NOIs or that have "out of sequence" document chronologies in order to protect communities from environmental harm.
Rockingham County stakeholders value the contribution of their farmers and property owners too much to allow Energix to hurt farmers who support repairs that DEQ has mandated. This PBR must fail because Energix appears to weaponize DEQ-mandated repair actions against innocent parties, and DEQ has no policies in place to protect landowners. DEQ should amend its administrative procedures so that operators of solar utilities are not allowed to financially jeopardize landowners cooperating with DEQ-mandated repairs.
Agency Plan for Disposition of Request: The Department of Environmental Quality, as required by Virginia law, is submitting notice of the petition for publication in the Virginia Register of Regulations and announcing a public comment period. Following receipt of comments on the petition, the department will consider whether to grant or deny the petition for rulemaking.
Public Comment Deadline: January 23, 2023.
Agency Contact: Susan Tripp, Renewable Energy Permit-by-Rule Coordinator, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 664-3470, or email susan.tripp@deq.virginia.gov.
VA.R. Doc. No. PFR23-16; Filed December 9, 2022, 11:43 a.m.
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TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF AUDIOLOGY AND SPEECH-LANGUAGE PATHOLOGY
Initial Agency Notice
Title of Regulation: 18VAC30-21. Regulations Governing Audiology and Speech-Language Pathology.
Statutory Authority: § 54.1-2400 of the Code of Virginia.
Name of Petitioner: Suzanne Dailey.
Nature of Petitioner's Request: The petitioner requests that the Board of Audiology and Speech-Language Pathology amend 18VAC30-21-60 A 1 to eliminate the requirement that initial licensure applicants hold a Certificate of Clinical Competence issued by the American Speech-Language-Hearing Association and replace that requirement with a requirement to hold a master's degree in speech-language pathology, communication disorders, speech and hearing science, or equivalent.
Agency Plan for Disposition of Request: The petition for rulemaking will be published in the Virginia Register of Regulations on January 2, 2023. The petition will also be published on the Virginia Regulatory Town Hall at www.townhall.virginia.gov to receive public comment, which will open on January 2, 2023, and will close on February 1, 2023. The board will consider the petition and all comments in support or opposition at the next meeting after the close of public comment, currently scheduled for March 14, 2023. The petitioner will be notified of the board's decision after that meeting.
Public Comment Deadline: February 1, 2023.
Agency Contact: Leslie L. Knachel, Executive Director, Board of Audiology and Speech-Language Pathology, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 597-4130, or email audbd@dhp.virginia.gov.
VA.R. Doc. No. PFR23-15; Filed December 8, 2022, 2:38 p.m.
BOARD OF DENTISTRY
Initial Agency Notice
Title of Regulation: 18VAC60-21. Regulations Governing the Practice of Dentistry.
Statutory Authority: § 54.1-2400 of the Code of Virginia.
Name of Petitioner: Suzanne Williams.
Nature of Petitioner's Request: The petitioner requests that the Board of Dentistry amend 18VAC60-21-250 C 8 to include Pacific Medical Training as an approved continuing education sponsor for the topics required in 18VAC60-21-250 B.
Agency Plan for Disposition of Request: The petition for rulemaking will be published in the Virginia Register of Regulations on January 2, 2023. The petition will also be published on the Virginia Regulatory Town Hall at www.townhall.virginia.gov to receive public comment, which will open on January 2, 2023, and will close on February 1, 2023. The board will consider the petition and all comments in support or opposition at the next meeting after the close of public comment, currently scheduled for March 3, 2023. The petitioner will be notified of the board's decision after that meeting.
Public Comment Deadline: February 1, 2023.
Agency Contact: Jamie Sacksteder, Executive Director, Board of Dentistry, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4581, or email jamie.sacksteder@dhp.virginia.gov.
VA.R. Doc. No. PFR23-14; Filed December 6, 2022, 8:24 a.m.
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TITLE 24. TRANSPORTATION AND MOTOR VEHICLES
COMMISSION ON THE VIRGINIA ALCOHOL SAFETY ACTION PROGRAM
Agency Decision
Title of Regulation: 24VAC35-60. Ignition Interlock Program Regulations.
Statutory Authority: § 18.2 -270.2 of the Code of Virginia.
Name of Petitioner: Cynthia Hites.
Nature of Petitioner's Request: "I, Cynthia Hites, a citizen of the Commonwealth of Virginia, pursuant to § 2.2-4007 of the Code of Virginia, do humbly submit this petition for verbiage removal to Virginia Administrative Code 24VAC35-60-20, Definitions., "Violations".
July 1, 2012: VASAP Interlock Inception. Paradoxically, the Virginia interlock performance standard was set as "alcohol specific", and the design standard was set as the fuel cell. (24VAC35-60-70 "the machines shall be specific to alcohol", 24VAC35-60-20 "Alcohol is defined as ethanol (C2H5OH)")
November 26, 2019: The NHTSA recognizes the usage of the term "ethanol specific" published in "Ignition Interlock - What you need to know. A toolkit for policy makers, highway safety professionals and advocates" is in error and amends it immediately.
January 29, 2020: Randolph Atkins of the NHTSA states in writing "BAIIDs are alcohol specific, but not ethanol specific."
January 21, 2021: Virginia Town Hall, Form TH-03 April 2020: "VASAP recognizes that ignition interlocks can detect alcohols other than ethanol..."
March 1, 2021: VASAP removes Virginia's interlock performance standard: "The term "alcohol specific" is being deleted to remove any suggested claim that interlocks will only detect ethanol", Virginia Register of Regulations Volume 37, Issue 14, page 674.
December 10, 2021: Minutes of Quarterly VASAP Meeting, Chief Legislative Officer for Lifesafer, "Mr. Ken Denton clarified that ignition interlocks are screening devices unlike evidentiary breath alcohol machines..."
With the full understanding that Virginia's interlock design standard could not meet Virginia's interlock performance standard, VASAP removed the performance standard of "alcohol specific" for interlock devices in Virginia. The paradigm of the IID program has shifted, but VASAP administration has yet to adjust. The limited scope of this instrument renders it a screening tool, not evidential, and any "readings" stop at the pass or fail of the lockout device. This instrument is preliminary for the presence of ethanol and its results cannot be blanketly construed as drinking alcohol. The instrument can only corroborate sobriety. The interlock prevents a driver who has provided a failed breath test (>.02 BrAC) from starting a vehicle, and that is the end of its scope of functionality. An IID allows the car to either start or it locks the ignition, but IID readings do not meet the evidentiary standard of that of the Intox EC/IR II. The interlock is a lockout device, not an evidential breath test; its readings cannot be used in court, nor can they be used extrajudicially. The error lies in what VASAP considers a "violation". Defining a failed interlock reading as a "violation" for the presence of ethanol is not in accordance with the functionality of the fuel cell, as the instrument cannot distinguish between alcoholic compounds. Compliance should be defined as having the IID installed for the determined duration, regardless of the pass or fail of the machine. Failed readings are expected with non-alcohol specific instruments and should NOT constitute "violations" or VASAP program noncompliance. According to data received via FOIA requests and VASAP meeting materials, in 2021 there were 7889 interlock installations in Virginia and during that same timeframe 6,843 cases were received by VASAP for secondary interlock review. Non-alcohol-specific sensors generate high numbers of false positives. The solution to the non-alcohol-specific fuel cell is to stop considering failed interlock tests as "violations". The solution to alleviate the financial pressures felt by VASAP is to stop considering failed interlock tests as "violations". The solution to eliminate the punishment of false positives is to stop considering failed interlock tests as "violations". VASAP cannot continue to hold Virginians to a standard it has removed.
I hereby request the following underlined verbiage be omitted from 24VAC35-60-20: Definitions., "Violation" means an event such as "a breath test indicating a BAC reaching the fail point upon initial startup"; a refusal to provide a rolling retest deep lung breath sample, "a rolling retest with a BAC reaching the fail point"; altering, concealing, hiding or attempting to hide one's identity from the ignition interlock system's camera while providing a breath sample; or tampering, that breaches the guidelines for use of the interlock device.
Correcting the interlock system as outlined in this petition will be a solution to a host of current problems.
Thank you for your consideration in this matter."
Agency Decision: Request denied.
Statement of Reason for Decision: During its December 9, 2022, meeting, the Commission on the Virginia Alcohol Safety Action Program denied this petition, taking no action for the following reasons: The petitioner's recommendation to remove "a breath test indicating a BAC reaching the fail point upon initial startup" and "a rolling retest with a BAC reaching the fail point" from the definition of a "violation" in 24VAC35-60-20 contradicts § 18.2-270.1 of the Code of Virginia, which requires a minimum of six consecutive months without alcohol-related violations of the interlock requirements. In addition, the petitioner's recommendation contradicts multiple court orders throughout the Commonwealth requiring alcohol-related events on an ignition interlock device to be returned to the court as violations.
Agency Contact: Christopher Morris, Special Programs Coordinator, Commission on the Virginia Alcohol Safety Action Program, 1111 East Main Street, Suite 801, Richmond, VA 23219, telephone (804) 786-5895, or email chris.morris@vasap.virginia.gov.
VA.R. Doc. No. PFR23-08; Filed December 9, 2022, 1:37 p.m.