Air Board beefs up public notice requirements for new fossil fuel plants

The Virginia State Air Pollution Control Board voted Thursday to expand public notification requirements for applications to construct or make major changes to certain fossil fuel plants or natural gas compressor stations.

The regulatory changes were the product of legislation sponsored by Sen. Jennifer McClellan, D-Richmond, during the 2020 regular section as a result of concerns about two major new natural gas plants planned to be built within roughly a mile of each other in Charles City County. 

“That’s what sparked this, is how few people really knew or understood what was happening, and by the time they did, they felt like they didn’t have enough time to comment,” McClellan told the Mercury Thursday. 

Under the new regulations, anyone proposing to build certain new fossil fuel facilities that would have a “disproportionate material air quality impact” on a locality would have to provide an extra 45 days of time for public notice and comment and directly notify an expanded list of people and authorities. 

Specifically, the public notice period would be increased from 30 to 60 days and the window when written comments can be submitted after the public hearing would be doubled from 15 to 30 days.

The applicant would also be required to send formal notification of the proposal to the locality’s chief elected official, chief administrative officer and planning district commission, every public library and public school within five miles of the proposed facility and the owner of each parcel of property adjacent to the site.

The new requirements would apply only to fossil fuel-fired generating facilities of 500 or more megawatts and compressor stations built for the transportation of natural gas, as well as major modifications to existing facilities of both kinds. 

“This expands the type of notice that has to be given,” Department of Environmental Quality Air Division Director Mike Dowd told the Air Board Thursday. “Before this legislation … we would just notify the jurisdictions, the boards of supervisors. But this statute expands the notice that goes out to the surrounding community.”

Exactly what constitutes a “disproportionate impact” and what communities would fall under the new notice requirements given the wide dispersal of various air pollutants from emitting facilities were the subjects of lengthy discussion Thursday.

Board member Richard Langford worried that the language of the regulation stemming from McClellan’s legislation “might not have been drafted very clearly” and would significantly broaden the number of localities that could be classified as “particularly affected” by air pollution. 

“If you’re talking about a point source, aren’t we talking about a fairly wide range before you get to a steady state out there somewhere?” he asked. “It’s not just a couple of localities close by, is it?”

“Depending on the source, it can be,” Dowd replied. “With ozone, that’s a broad regional pollutant. (A type of particulate matter) can also be broad and regional. But you have other pollutants like (volatile organic compounds) and sulfur dioxide … that can be very local in nature. So it sort of varies by pollutant.” 

Noting that the “particularly affected” locality definition previously existed in state code, board chair Roy Hoagland pressed Dowd on exactly what changes the new regulation would spur. 

“There’s a notice change put on the applicant once DEQ determines, or the board determines, whichever, that a locality has been particularly affected,” he said. But “a permit properly issued in accordance with existing standards and existing regulatory requirements would not create an identified disproportionate material air quality impact, correct?”

“Not necessarily,” Dowd replied. 

“I think it is probably impossible to create a situation or have a permit for a source that might not have a higher impact on ambient air quality right close to the facility than people further away,” he said. “What we have looked at over the years, and what our statutes and regulations require is that no permit violate the National Ambient Air Quality Standards. So there may well be identifiably higher modeled impacts in some areas than others.”

McClellan told the Mercury she hadn’t intended to provide specific numbers in her legislation for what constitutes a disproportionate impact but had left it up to “experts” to determine using science and data. 

“We know we have communities, most of them low-income, most of them communities of color, where these projects have been concentrated,” she said. 

On Thursday, both Hoagland and Dowd cast the new regulation as fitting in with separate pushes by DEQ and the Air Board to improve public communication, particularly in the wake of a much-criticized decision to issue the Atlantic Coast Pipeline’s Buckingham compressor station an air permit in 2019. The U.S. 4th Circuit Court of Appeals subsequently struck down the permit, and the pipeline has since been canceled. 

Federal court overturns Union Hill compressor station permit

“Ever since Buckingham, we have changed our policy on notification somewhat drastically and greatly expanded the notification that goes out,” Dowd said. “We have been in the process of expanding it to try to find more avenues to notify the affected folks.”

The Air Board has also formed a public engagement committee with the goal of improving transparency and communication with the public.

University of Richmond professor and environmental justice advocate Mary Finley-Brook, however, during a public comment period said the department was still falling well short of its obligations.

“Fundamental change needs to happen so impacted citizens are brought into the process earlier before all decisions have already been made and only small tweaks are allowed,” she said. 

The regulation will now be published in the Virginia Register for 30 days prior to going into effect.