STATE CORPORATION COMMISSION

AT RICHMOND, JULY 9, 2021

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. BFI-2021-00007

Ex Parte: In the matter of Adopting

Regulations Governing Qualified

Education Loan Servicers under Chapter 26

of Title 6.2 of the Code of Virginia

ORDER REQUESTING ADDITIONAL COMMENTS

On March 9, 2021, the State Corporation Commission (Commission) entered an Order to Take Notice of a proposal by the Bureau of Financial Institutions (Bureau) to adopt regulations governing qualified education loan servicers, to be set forth in Chapter 220 of Title 10 of the Virginia Administrative Code.

The Bureau submitted the proposed regulations pursuant to Chapters 1198 and 1250 of the 2020 Virginia Acts of Assembly, which amends the Code of Virginia (Code) by adding Chapter 26 of Title 6.2 (§ 6.2-2600 et seq.) of the Code (Chapter 26). Chapter 26 establishes a licensing and regulatory framework for qualified education loan servicers effective on July 1, 2021. The regulations implement the provisions of Chapter 26 by, among other things, establishing the amount required for the surety bond, annual reporting requirements, the procedure for documenting eligibility for automatic issuance of a license, the application and renewal process, the annual fee schedule, and procedures for submitting information to the Bureau.

The Order to Take Notice and proposed regulations were published in the Virginia Register of Regulations on March 29, 2021, posted on the Commission's website, and sent to certain interested persons. All interested persons were afforded the opportunity to file written comments or request a hearing on or before April 16, 2021. Comments on the proposed regulations were filed by Virginia21; the New Virginia Majority; the Virginia Poverty Law Center; National Association of Student Loan Administrators (NASLA); Progress Virginia Education Fund; and Student Loan Servicing Alliance (SLSA). The Commission did not receive any requests for a hearing.

The Bureau considered the comments filed and responded to them in its Response to Comments (Response), which the Bureau filed with the Clerk of the Commission on May 17, 2021.

NOW THE COMMISSION, upon consideration of this matter, finds that additional pleadings on the federal preemption and intergovernmental immunity issues are warranted. As the Bureau explains: (1) NASLA asserts application of Chapter 26 and the proposed regulations to Federal Guarantors is preempted by federal law, and the doctrine of intergovernmental immunity bars direct state regulation of federal contractors such as federal guarantors; and (2) SLSA asserts federal student loans are preempted from any licensing regime.

The Commission notes, however, that neither the Bureau, nor any of the commenters, other than NASLA and SLSA, have substantively addressed the legal issues of federal preemption or intergovernmental immunity raised by NASLA and SLSA. Before ruling on these legal questions, the Commission requests the Bureau, NASLA, SLSA, and any interested person desiring so (including others that previously filed comments), to file comments further addressing these issues of federal preemption and intergovernmental immunity.

Specifically, any such comments shall be due on or before August 16, 2021, and (not by way of exclusion) such commenters are requested to address the following questions:

(1) Identify specifically any part(s) of the statute and/or regulations that are federally preempted. For each such part identified, explain in detail which theory of preemption applies and all reasons why the statute and/or regulation are preempted, with citations to applicable law, including caselaw. Please also address whether each part(s) identified are severable from the remainder of the statute.

(2) Identify specifically any part(s) of the statute and/or regulations that violate the doctrine of intergovernmental immunity. For each part identified, explain in detail why the statute and/or regulation violates the doctrine of intergovernmental immunity, with citations to applicable law, including caselaw. Please also address whether the part(s) identified are severable from the remainder of the statute.

(3) If no such part(s) of the statute and/or regulations are identified in question (1) above, explain in detail why the statute and/or regulations are not federally preempted, with citations to applicable law, including caselaw.

(4) If no such part(s) of the statute and/or regulations are identified in question (2) above, explain in detail why the statute and/or regulations do not violate the doctrine of intergovernmental immunity, with citations to applicable law, including caselaw.

(5) Address Student Loan Servicing Alliance v. District of Columbia, 351 F.Supp.3d 26 (2018) and its applicability to this case, Chapter 26 of Title 6.2 of the Code, and the proposed regulations pursuant thereto in Virginia.

Accordingly, IT IS SO ORDERED, and this matter is CONTINUED.

A COPY of this Order shall be sent by the Clerk of the Commission to the Commission's Office of General Counsel and to the Commissioner of Financial Institutions, who shall send by e-mail or U.S. mail a copy of this Order to all those who commented in this matter and to the Commonwealth of Virginia's Office of the Attorney General.

______________________

¹Comments submitted by SLSA were filed on April 19, 2021, after the deadline imposed by the Order to Take Notice. However, the Commission will make a limited exception in this instance due in part to the fact that the Bureau indicated it considered and responded to all comments received and finding that such does not result in any undue prejudice.

AT RICHMOND, JUNE 29, 2021

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. PUR-2020-00124

Ex Parte: In the matter of establishing regulations

for a multi-family shared solar program pursuant to

§ 56-585.1:12 of the Code of Virginia

ORDER

On December 23, 2020, the State Corporation Commission ("Commission") issued its Order Adopting Rules in this docket to govern multi-family shared solar programs to be offered by Virginia Electric and Power Company d/b/a Dominion Energy Virginia ("Dominion") and Kentucky Utilities Company d/b/a Old Dominion Power Company ("KU-ODP"). Among other things, the Order Adopting Rules noted that § 56-585.1:12 E 6 of the Code of Virginia ("Code") requires that the Commission adopt a standardized disclosure form to be provided to each prospective customer before subscribing to a multi-family shared solar facility. The Commission directed the low-income working group established in Case No. PUR-2020-00125 to develop the disclosure form(s) to be adopted by the Commission for the multi-family shared solar program.¹

The Order Adopting Rules also provided that, pursuant to Code § 56-585.1:12 D, the Commission would by separate order calculate and publish the applicable bill credit rate for multi-family shared solar customers.² On April 10, 2021, the Coalition for Community Solar Access ("CCSA"), together with the Chesapeake Solar and Storage Association ("CHESSA"), moved the Commission to enter an order clarifying the applicable bill credit rate for the multi-family shared solar program³ and the shared solar program⁴ ("CCSA-CHESSA Motion"). CCSA and CHESSA requested that the Commission enter an order: (1) adopting 2021 applicable bill credit rates for each customer class (residential, commercial, and industrial) for the multi-family shared solar program based on the most recent posted U.S. Energy Information Agency ("EIA") data; and (2) confirming that the same EIA data and calculation methodology will be used to determine the applicable bill credit rates for both the multi-family shared solar program and shared solar program.

On May 18, 2021, Dominion and KU-ODP filed responses to the CCSA-CHESSA Motion. Dominion stated that it did not disagree with using EIA data to calculate the Multi-Family Shared Solar bill credit rate but argued that "before the statutory formula can be applied, taxes must be removed from the revenue total, because these tax payments are passed through to the respective governmental entities to whom they belong, and are not Company revenue."⁵ KU-ODP objected to the use of EIA data because (1) this data is not timely – the most recent available EIA data is from 2019 – and (2) the EIA data is not jurisdictionalized but rather includes data for customers not subject to the Commission's jurisdiction.⁶ Instead, KU-ODP proposed that the Commission base the bill credit rate on information derived from KU-ODP's Form 1, which is filed annually with the Federal Energy Regulatory Commission ("FERC") and provided to the Commission in March of each year.⁷ On June 2, 2021, CCSA and CHESSA filed a reply to KU-ODP's and Dominion's responses. CCSA and CHESSA did not object to KU-ODP's proposal to use FERC Form 1 data but opposed Dominion's proposal to exclude taxes from the EIA data.⁸

NOW THE COMMISSION, having considered this matter, is of the opinion and finds as follows.

Bill Credit Rate

Code § 56-585.1:12 D provides that:

[t]he Commission shall annually calculate the applicable bill credit rate as the effective retail rate of the customer's rate class, which shall be inclusive of all supply charges, delivery charges, demand charges, fixed charges, and any applicable riders or other charges to the customer. This rate shall be expressed in dollars or cents per kilowatt-hour.

While the Commission determined in the Order Adopting Rules that it would calculate a bill credit using publicly available data, the Order Adopting Rules did not establish a methodology for this calculation. Under the specific circumstances of this case, we find that either the data published by the EIA or the FERC Form 1 data filed with the Commission would be publicly available data by which we could calculate a bill credit rate. We agree with KU-ODP that, because the FERC Form 1 is more timely and provides data by jurisdiction, and because both Dominion and KU-ODP submit Virginia-specific FERC Form 1 information to the Commission each March, using the FERC Form 1 data to calculate the bill credit rate is preferable.⁹ Using this data, we will set the initial bill credit rate for the multi%u2011family shared solar program to 11.765 cents per kilowatt-hour ("¢/kWh") for Dominion and 11.328 ¢/kWh for KU-ODP.¹⁰

Consumer Disclosure Form

Code § 56-585.1:12 E provides implementation details for the multi-family shared solar program, and requires that the program "[r]easonably allow for the transferability and portability of subscriptions, including allowing a subscriber to retain a subscription in a shared solar facility if the subscriber moves within the same utility territory."¹¹ The Code also requires that the Commission "[a]dopt standardized consumer disclosure forms."¹²

The stakeholder group established in Case No. PUR-2020-00125 discussed standardized disclosure forms for both the shared solar program established by Code § 56-594.3 and the multi-family shared solar program established by Code § 56-585.1:12. In the Low Income Stakeholder Working Group Report on the Virginia Shared Solar and Multi-Family Shared Solar Programs (2020-2021) ("Working Group Report") filed as part of the Commission Staff Update on April 22, 2021, in Case No. PUR-2020-00125, the Working Group Report stated that the stakeholder group largely agreed as to the language for the consumer disclosure form, but that "[i]t is unclear whether the transferred subscription must 1) remain associated with the original subscriber and not involve a new customer; and/or 2) whether the 'new address' must also be in a multifamily residence."¹³ The Commission finds that the plain language of the statute requires that a customer seeking to transfer a multi-family shared solar subscription to a new residence must be relocating to a new multi-family residence within the service territory of the same utility. Any transfer of a subscription to a new customer would only be permitted if the new customer meets the applicable requirements established by the utility.

Pursuant to Code § 56-585.1:12 E 6, we will adopt the consumer disclosure form provided in the Working Group Report, which is attached to this Order Adopting Rules.

Accordingly, IT IS ORDERED THAT:

(1) The initial multi-family shared solar bill credit rate for Dominion shall be 11.765 ¢/kWh.

(2) The initial bill credit rate for KU-ODP shall be 11.328 ¢/kWh.

(3) On or before September 1, 2021, Dominion and KU-ODP shall file with the Clerk of the Commission, in this docket, one (1) original document containing any revised tariff provisions necessary to implement the regulations adopted in this proceeding, including the initial bill credit rate adopted herein, and shall also file a copy of the document containing the revised tariff provisions with the Commission's Division of Public Utility Regulation. The Clerk of the Commission need not distribute copies but shall make such filings available for public inspection in the Clerk's Office and post them on the Commission's website at: scc.virginia.gov/pages/Case-Information.

(4) The Standard Consumer Disclosure Form attached hereto as Attachment A is adopted.

(5) This case is continued.

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.

_____________________________________

¹Order Adopting Rules at 7-8. Case No. PUR-2020-00125 addresses regulations for the non-multi-family shared solar program being developed pursuant to Code § 56-594.3. See, Commonwealth of Virginia, ex rel: State Corporation Commission, Ex Parte: In the matter of establishing regulations for a shared solar program pursuant to § 56-594.3 of the Code of Virginia, Case No. PUR-2020-00125, Doc. Con. Ctr. No. 201230214, Order Adopting Rules (Dec. 23, 2020).

²Order Adopting Rules at 9.

³See 20 VAC 5-342-10 et seq.

⁴See 20 VAC 5-340-10 et seq.

⁵Dominion Response at 3.

⁶KU-ODP Response at 3.

⁷Id. KU-ODP asserted that as part of the FERC Form 1 filing, KU-ODP could "provide jurisdictionalized revenues and sales data by rate class and a calculation of the applicable bill credit rate for the multi-family shared solar program." Id.

⁸CCSA-CHESSA Reply at 4-6.

⁹In addition, use of FERC Form 1 data would obviate the need to remove taxes from the data before calculating the bill credit rate, as Dominion argues would be necessary if the EIA data were used.

¹⁰As the multi-family shared solar program is open only to residential customers, we will not establish a bill credit rate for non-residential rate classes. Dominion's FERC Form 1 for Virginia customers reports residential sales of 29,714,750,000 kWh and residential revenues of $3,495,913,849. KU-ODP's FERC Form 1 for Virginia customers reports residential sales of 338,170,246 kWh and residential revenues of $38,306,897.

¹¹Code § 56-585.1:12 E 4.

¹²Code § 56-585.1:12 E 6.

¹³Commission Staff Update, Doc. Con. Ctr. No. 210430117 at 9, filed in Case No. PUR-2020-00125. See supra n.1. We direct the Commission Staff to file a copy of the April 22, 2021 Commission Staff Update in Case No. PUR-2020-00124, and to file any future working group reports or updates in both Case Nos. PUR-2020-00124 and PUR-2020-00125.

STATE WATER CONTROL BOARD

Proposed Enforcement Action for BleachTech LLC

The State Water Control Board proposes to issue a consent special order to BleachTech LLC for alleged violation of the State Water Control Law at 2020 Bessemer Road, Petersburg, Virginia. A description of the proposed action is available at the Department of Environmental Quality office listed or online at www.deq.virginia.gov. The staff contact will accept comments by email or postal mail from August 2, 2021, to September 1, 2021.

Contact Information: Jeff Reynolds, Department of Environmental Quality, Piedmont Regional Office (Enforcement), 4949-A Cox Road, Glen Allen, VA 23060, or email jefferson.reynolds@deq.virginia.gov.

Proposed Consent Order for Huguenot Woods LLC

An enforcement action has been proposed for Huguenot Woods LLC for Canterbury Farms Subdivision located at the intersection of Huguenot Trail and Manakintown Ferry Road, Powhatan, Virginia. The board proposes to issue a consent order to address noncompliance with State Water Control Law and regulations. A description of the proposed action is available at the Department of Environmental Quality office listed or a copy can be obtained upon request. Frank Lupini will accept requests and comments by email at frank.lupini@deq.virginia.gov or postal mail at Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, from August 2, 2021, to September 2, 2021.

Public Comment Period and Public Meeting - Polychlorinated Biphenyls (PCB) Water Quality Study for Lewis Creek

Description of technical advisory committee and public meetings: The Virginia Department of Environmental Quality (DEQ) will host the 3rd Technical Advisory Committee Meeting and final public meeting for the Lewis Creek polychlorinated biphenyls (PCB) total maximum daily load (TMDL) Project on Wednesday, August 18, 2021. The technical advisory committee (TAC) meeting will be held from 5:30 p.m. until 6 p.m. at the Montgomery Hall Park Rotary Pavilion, 1000 Montgomery Hall Avenue, Staunton, VA 24401. The final public meeting will be held from 6 p.m. until 7:30 p.m. at the same location. There is limited seating available at the pavilion, so it is suggested that attendees bring a chair to the meeting. In the case of inclement weather, both meetings will be held at the same time and location on Wednesday, September 1, 2021. TAC consists of representatives from local governments, local landowners, and conservation groups in the watershed. TAC meetings are open to the public, and interested citizens are welcome to observe and ask questions at the meeting. All are welcome at the public meeting.

Purpose of notice: DEQ and its contractors will discuss the results of the PCBs water quality study known as a TMDL for Lewis Creek. The additional TAC discussion prior to the public meeting will focus on the draft report that has been completed for the study. The TMDL draft document will also be presented and discussed at the public meeting. The draft report will be posted on the DEQ PCB TMDL webpage at https://www.deq.virginia.gov/water/water-quality/tmdl-development/tmdls-under-development/pcb-tmdls prior to the public meeting. A 30-day public comment period will follow the meeting and expire on September 17, 2021.

Description of study: A portion of Lewis Creek, located in Augusta County and the city of Staunton, is listed as impaired for PCBs based on a Virginia Department of Health fish consumption advisory and violations of Virginia's Water Quality Standards. The PCB impairment begins approximately 0.65 miles upstream of the Route 262 bridge crossing and extends 12.53 miles downstream to Lewis Creek's confluence with Middle River. A TMDL has been completed for the Lewis Creek watershed in order to address all sources contributing to the impaired segment. A TMDL is the total amount of a pollutant a water body can contain and still meet water quality standards. Virginia agencies have worked cooperatively with local partners to identify sources of PCBs in Lewis Creek, and to recommend reductions needed from these sources to meet the TMDL. The results of the TMDL study for Lewis Creek will be presented at the public meeting and the draft report will be reviewed at the technical advisory committee meeting.

How to comment and participate: The meetings of the TMDL process are open to the public and all interested parties are welcome. A technical advisory committee was formed to assist in the development of this TMDL. Written comments will be accepted through September 17, 2021, and should include the name, address, and telephone number of the person submitting the comments. For more information or to submit comments, please contact Mark Richards, Department of Environmental Quality, Office of Watershed Programs, telephone (804) 698-4392, email mark.richards@deq.virginia.gov, or Nesha McRae, Department of Environmental Quality, Valley Regional Office, telephone (540) 574-7850, email nesha.mcrae@deq.virginia.gov. To submit comments via postal mail, please use the address provided.

Contact Information: Mark Richards, Office of Watershed Programs, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4392, FAX (804) 698-4178, or email mark.richards@deq.virginia.gov.

Proposed Enforcement Action for Middle Mile Infrastructure LLC

An enforcement action has been proposed for Middle Mile Infrastructure LLC for violations of the State Water Control Law at in-line amplifier sites along the MMI Atlantic Coast Long Haul Fiber Optic Installation Project in Campbell County, Carroll County, Fauquier County, Floyd County, Franklin County, Giles County, Madison County, and Nelson County, Virginia. A description of the proposed action is available at the office listed or online at https://www.deq.virginia.gov/permits-regulations/public-notices/enforcement-orders. Comments will be accepted by the contact person from August 2, 2021, through September 1, 2021.

Contact Information: Kristen Sadtler, Enforcement Manager, Department of Environmental Quality, 1111 East Main Street, Richmond, VA 23219, telephone (804) 698-4149, FAX 804-698-4178, or email kristen.sadtler@deq.virginia.gov.

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.