20VAC5-302 Filing Requirements in Support of Applications for Authority to Construct and Operate an Electric Generating Facility

REGULATIONS

Vol. 25 Iss. 10 - January 19, 2009

TITLE 20. PUBLIC UTILITIES AND TELECOMMUNICATIONS

STATE CORPORATION COMMISSION

Chapter 302

Final Regulation

REGISTRAR'S NOTICE: The State Corporation Commission is exempt from the Administrative Process Act in accordance with § 2.2-4002 A 2 of the Code of Virginia, which exempts courts, any agency of the Supreme Court, and any agency that by the Constitution is expressly granted any of the powers of a court of record.

Title of Regulation: 20VAC5-302. Filing Requirements in Support of Applications for Authority to Construct and Operate an Electric Generating Facility (amending 20VAC5-302-10 through 20VAC5-302-35).

Statutory Authority: §§ 12.1-13, 56-234.3, 56-265.2 and 56-580 of the Code of Virginia.

Effective Date: January 15, 2009.

Agency Contact: Cody Walker, Assistant Director, Division of Energy Regulation, State Corporation Commission, P.O. Box 1197, Richmond, VA 23218, telephone [phone], FAX [phone], or email [e-mail].

Summary:

The State Corporation Commission has revised its rules governing applications to construct and operate electric generating facilities (generation rules or rules). Legislation enacted by the 2007 and 2008 Sessions of the Virginia General Assembly largely prompted the commission's decision to propose and ultimately adopt changes in its rules. The rules are set forth in 20VAC5-302 within the Virginia Administrative Code. The revised rules will become effective on January 15, 2009.

The adopted revisions to the generation rules include filing requirements that Virginia's incumbent electric utilities must satisfy in establishing the need for proposed, new generation facilities to be constructed in Virginia. The information required includes an analysis of load and generating capacity reserve forecast information that demonstrates the need for the plant in the in-service year proposed for rate regulated electric utilities.

The amended generation rules further provide that the construction in Virginia of electric generating facilities with rated capacities of 5 MW or less may be undertaken without complying with the full filing requirements currently set forth in the generation rules for larger facilities. Instead, persons desiring to construct such facilities must (i) submit a letter to the Director of the Division of Energy Regulation stating the location, size and fuel type of the facility and (ii) comply with all other requirements of federal, state and local law.

Modifications to the initial, proposed rules now included in the adopted, revised generation rules include new language in 20VAC5-302-20 and 20VAC5-302-25 enabling persons desiring to construct renewable energy electric generating facilities larger than 5 MW but smaller than 100 MW to utilize the abbreviated application format contained in 20VAC5-302-25. An additional change of significance includes new language in 20VAC5-302-10 permitting applications containing confidential information to be filed under seal, simultaneous with applicants filing motions for protective orders or other confidential treatment.

Other changes from the proposed version to the adopted generation rules include technical and clarifying changes that include, for example, an amendment to 20VAC5-302-35 clarifying that providing "justification of need" for proposed generation facilities is a requirement applicable to only those incumbent electric utilities whose rates are regulated pursuant to § 56-585.1 of the Code of Virginia.

AT RICHMOND, DECEMBER 23, 2008

COMMONWEALTH OF VIRGINIA

At the relation of the

STATE CORPORATION COMMISSION

CASE NO. PUE-2008-00066

Ex Parte: In the matter of revising
the rules of the State Corporation Commission
governing applications to construct and
operate electric generating facilities

ORDER ADOPTING REGULATIONS

On July 25, 2008, the State Corporation Commission ("Commission") entered an Order for Notice and Comment in this docket ("Order") establishing a proceeding to revise the Commission's rules governing applications to construct and operate electric generating facilities, ("Generation Rules" or "Rules").¹ Proposed revisions to the Generation Rules ("Proposed Amendments") prepared by the Commission Staff ("Staff") were appended to the Order.

The Order permitted interested persons to submit, on or before September 26, 2008, (i) comments concerning the Proposed Rules, and (ii) a request for hearing on the Proposed Amendments. The Order further permitted the Staff to file on or before November 5, 2008, a report with the Clerk of the Commission concerning the comments submitted to the Commission ("Staff Report").

Comments concerning the Proposed Amendments were timely received from (i) Virginia Electric and Power Company d/b/a Dominion Virginia Power ("DVP" or "Virginia Power"); (ii) Appalachian Power Company ("Appalachian" or "APCo"); (iii) Columbia Gas of Virginia ("Columbia Gas"); (iv) the Office of the Attorney General, Division of Consumer Counsel ("Consumer Counsel"); (v) the Old Dominion Electric Cooperative ("ODEC"); and (vi) L.S. Power Associates, L.P. ("L.S. Power"). None of the commenting parties requested a hearing, although several of them reserved the right to participate in any hearing scheduled by the Commission in this docket. The Staff Report was timely filed on November 5, 2008.

NOW UPON CONSIDERATION of the comments and the Staff Report filed herein, we find that we should adopt the rules appended hereto as Attachment A, effective January 15, 2009.

The regulations we adopt herein contain a number of modifications to those that were first proposed by the Commission Staff and published in the Virginia Register on August 18, 2008. These modifications (shown in brackets) follow our consideration of changes suggested by the parties in their written comments, changes proposed in the Staff Report, and our analysis of the entire record in this proceeding. We will not comment on each rule in detail, but we will comment on several of them.

First, Consumer Counsel has recommended amending 20 VAC 5-302-10 (Applicability and Scope) to add language expediting the availability of confidential information associated with applications filed under these rules. In particular, Consumer Counsel has suggested that information claimed by an applicant to be confidential be filed under seal, and that the applicant simultaneously file a motion for a protective order or other confidential treatment.² We will adopt this approach in these rules. As Consumer Counsel notes, this treatment of confidential information is similar to the one adopted in the Commission's rate case rules docket (Case No. PUE‑2008‑00001), and the rules we adopt pursuant to this Order will substantially replicate the language proposed in that docket concerning applications containing confidential information. We find it unnecessary, however, to adopt DVP's suggestion that we identify in these rules "extraordinarily sensitive" information as an application-related category of information that can be filed under seal pursuant Rule 170 of the Commission's Rules of Practice and Procedure (5 VAC 5-20-170). DVP comments, Exhibit A at 1. Rule 170 addresses the treatment of "trade secrets, privileged, or confidential commercial or financial information." DVP has not established that the "extraordinarily sensitive" information it refers to does not fall into one of these broad categories.

Second, Columbia Gas proposes that the Commission modify 20 VAC 5-302-20 (General Information, etc.), to make more explicit the obligation of an applicant seeking to construct a natural gas-fired electric generation facility to serve a copy of its application (contemporaneous with its filing with the Commission) upon all natural gas local distribution companies in whose certificated service territories the proposed facility (or interconnected natural gas facilities) will be constructed or operated. Columbia Gas states in its comments that the enhanced notice requirement it proposed would "ensure that the regulated LDC has sufficient notice of the pendency and content of the application to permit the LDC to analyze issues of importance to the LDC and its customers and to participate, as appropriate, in such proceedings." Columbia Gas comments at 5-6. We find the Columbia Gas proposal reasonable and have incorporated it into the rules we adopt herein.

Third, ODEC expressed concern in its comments that the Proposed Amendments retain references in 20 VAC 5-302-35 (Information Required from Incumbent Utilities) to "incumbent electric utilities" as defined in § 56-576 of the Code. As noted by ODEC, inasmuch as 20 VAC 5-302-35 requires incumbent utilities to provide an analysis of need for a proposed facility, the scope of this provision is significant. We agree with ODEC that the General Assembly's 2007 amendments to § 56-580 D of the Code make a demonstration of "public convenience and necessity" applicable only to those "regulated utilities whose rates are regulated pursuant to § 56-585.1" of the Code, i.e., investor-owned utilities.³ ODEC comments at 7. Accordingly, we have clarified both the catch-line and content of 20 VAC 5-302-35 to make clear that its provisions are applicable only to those incumbent utilities (as defined in § 56-576) whose rates are regulated by the Commission pursuant to § 56-585.1.

Fourth, additional amendments were proposed to 20 VAC 5-302-35 (Information Required from Incumbent Utilities) by Consumer Counsel, DVP, and L.S. Power. Consumer Counsel suggested that Subdivision 1 of this provision be modified to require incumbent utilities to submit "front end" engineering and design studies supporting specific "plant design" as well as plant type and site selected. Consumer Counsel advises that this additional language describes more precisely terminology commonly used for the required studies. Consumer Counsel comments at 2. We find the Consumer Counsel's suggested amendments reasonable and have incorporated them into the rules we adopt herein.

DVP's proposed amendments to 20 VAC 5-302-35 included suggestions that the itemized information to be furnished by incumbent utilities under this provision be provided "where available." Additionally, DVP proposed that only "initial" feasibility and engineering-design studies, and "initial" fuel supply studies be furnished pursuant to this provision. DVP states in its comments that the "availability" issue is related to the Company's concern that where applications are associated with "new technologies like future carbon capture compatible technology or improved designs on nuclear reactors[,]" portions of the information required, such as historical information for similar units, may not be available in all situations. DVP comments at 6-7. The Commission Staff, however, in assessing DVP's concern, has suggested resolving the concern directly by modifying Subdivision 3 of 20 VAC 5-302-35 to require incumbents to furnish support for planning assumptions regarding plant performance and operating costs (including historical information for similar units), "where available." Staff Report at 5. We believe the Staff's suggestion is reasonable, and we adopt it in our rules herein.

With respect to DVP's suggestions that incumbents provide only "initial" feasibility and engineering-design studies, and "initial" fuel supply studies, we agree with the utility's assessment that updates to these studies may be provided during the case proceeding, and also obtained through discovery. DVP comments at 7. Accordingly, we have included DVP's suggested changes to Subdivisions 1 and 3 of 20 VAC 5-302-35 in our final rules.

DVP's final proposed amendment to 20 VAC 5-302-35 concerns that rule's Subdivision 5, under which incumbent electric utilities are required to furnish load and generating capacity reserve forecast information demonstrating need. DVP proposes that in the case of renewable energy facilities, such forecast information be associated with demonstrating "need for the plant in meeting the incumbent electric utility's RPS Goals as set forth in § 56-585.2 of the Code of Virginia." DVP comments at 7, 8; Exhibit A to DVP comments at 15. The Staff Report suggests that the proposed language would incorporate a "lesser standard" for demonstrating need associated with a renewable generating facility. Staff Report at 5. We conclude that the proposed language is inconsistent with the provisions of § 56-580 D (ii), which require that the certification of generation facilities proposed by utilities regulated under § 56-585.1 (such as DVP) proceed upon a finding that such facilities are required by the "public convenience and necessity." We find that this statutory requirement is satisfied by ensuring that utilities provide traditional load and generating capacity reserve information demonstrating the need for the plant in the in-service year proposed, irrespective of the type of facility proposed. In short, DVP has not identified a statutory basis for establishing a different standard of need based on the type of facility proposed for construction and operation. Therefore, we will not adopt the language proposed to that effect by DVP. In a similar vein and for the same reasons, we will not adopt APCo's proposal to exempt both renewable facilities and emerging technology facilities from the justification of need. APCo comments at 3.

Fifth, as we noted in our initial Order for Notice and Comment in this docket, the Commission seeks to streamline generation project applications, consistent with the Commission's statutory authority and the public interest. Accordingly, for example, we adopt in these rules provisions in 20 VAC 5-302-10 that permit facilities with rated capacities of 5 MW or less to be undertaken without complying with the filing requirements otherwise set forth in the rules. DVP has proposed further streamlining the filing requirements for facilities of 100 MW or less that utilize renewable energy. Stated simply, DVP suggests that proposed renewable facilities with capacities in excess of 100 MW be subject to the full requirements prescribed under 20 VAC 5-302-20 (filing requirements for generating facilities larger than 50 MW), while renewable facilities with capacities in excess of 5 MW but less than 100 MW would be subject to the streamlined filing requirements contained in 20 VAC 5-302-25. DVP comments at 3-6. We find no legal impediment to this proposal, and that it is reasonable. Accordingly, we will adopt the substance of this recommendation in our final rules herein.

Sixth, Appalachian has recommended that applications proposing the construction of new renewable facilities state the "firm capability" of such facilities rather than the conventional nameplate capacity. Appalachian comments at 4. Appalachian notes in its comments that a generating facility powered by wind energy, for example, is treated by PJM as a firm capacity resource at only 13 percent of its nameplate capacity. Id. Additionally, Appalachian states that such an approach would "allow more renewable sources to qualify for the expedited filing procedures for facilities 50 MW or less, which would promote the development of renewable energy within the Commonwealth." Id. Thus, Appalachian recommends that the rated capacity for renewable generating facilities be defined as the "firm capability" of the facility. The Commission Staff, commenting on this proposal in its Staff Report notes that facilities' nameplate capacity rating may be "more indicative of the 'footprint' of renewable facilities," thus best representing the environmental or aesthetic implications of such facilities. Staff Report at 7. Thus, Staff did not endorse Appalachian's recommendation or believe that further clarification is needed. We would also note that inasmuch as the applicability of the rules we adopt herein are driven, in large part, by the capacity of proposed facilities, departing from nameplate capacity in favor of "firm capability" could result in both inconsistency and irregularity in determining the rule under which a generation project must be filed. Consequently, we conclude that the better approach is to continue to use nameplate capacity as the determinant of filing requirements. Accordingly, we will not adopt Appalachian's proposal.

Seventh, we note ODEC's recommendations concerning 20 VAC 5-302-10, and the streamlined procedures for approving generating facilities of less than 5 MW provided therein. Specifically, the amendments to that rule permit applicants for such facilities to submit a letter to the Director of the Commission's Division of Energy Regulation providing the location, size the fuel type of the facility. The amendment further provides that the applicant must comply with all other requirements of federal, state and local law. ODEC stated that its member distribution cooperatives have an interest in obtaining information about small generation facilities that may be interconnected with such cooperatives' systems. Accordingly, ODEC has recommended that the notification letter procedure be modified so that the letter would be filed with the Clerk of the Commission and that the Clerk make a list of such filings publicly available. ODEC comments at 13. We have considered the substance of ODEC's suggested modifications to this rule, and while we will not incorporate them into this rule, we will direct the Director of the Division of Energy Regulation to establish and maintain on the Commission's website, a listing of all such filings received by the Director, and to provide electronic access to the documents comprising such filings.

Finally, we will address a significant issue raised in this docket by L.S. Power. In particular, L.S. Power has requested that 20 VAC 5-302-35 (Information required from incumbent electric utilities) be modified to require incumbent electric utilities to consider options for procuring power from non-affiliated generators through a Request for Proposal ("RFP") or similar competitive solicitation. L.S. Power has further recommended that the economic studies required in Subdivision 4 of 20 VAC 5-302-35 include comparisons between the proposed facility and any offers received in response to any such solicitation. L.S. Power comments at 3‑5. L.S. Power states that the modifications it proposes are necessary to ensure that utilities "purchase power at the lowest rates available through a transparent, competitive process." Id. at 4. More specifically, L.S. Power suggests that an RFP process would reveal whether a proposed facility is in fact better than all alternative sources of supply, "as the offers received in an RFP represent the price at which suppliers are willing to contract to sell power." Id.

The Staff Report discusses the L.S. Power recommendations and notes that while L.S. Power's comments may have merit, the proposed modifications to the rules effectively integrate a "competitive bidding" requirement into an incumbent electric utility's application to build a new generation facility. According to the Staff, this represents a "significant departure from the proposed rules as disseminated in this docket for comment." Staff Report at 8.

We will not rule on L.S. Power's request as part of this rulemaking proceeding. This Commission has never mandated competitive bidding as part of the filing requirements for new generating facilities, and the consideration of such a significant departure from Commission rules was not included in the proposed rules in this case. Indeed, DVP is the only investor-owned utility in Virginia that has a competitive bidding program, which was implemented on a voluntary basis by DVP. Furthermore, there are pending cases before this Commission addressing DVP's continued application, if at all, of such bidding program,⁴ which will address many, if not all, of the issues raised by L.S. Power. In addition, we recently issued an order addressing the potential supply and construction plans of another investor-owned utility, Allegheny Power Company,⁵ which also discussed the potential relationship of such plans and the statutorily-required integrated resource planning process.⁶ Accordingly, we find that such matters regarding mandatory competitive bidding should be addressed in one or more separate proceedings — either on a case-by-case basis for Virginia's investor-owned utilities or in a generic rulemaking case.

Accordingly, IT IS ORDERED THAT:

(1) We hereby adopt amendments to our Filing Requirements in Support of Applications for Authority to Construct and Operate an Electric Generating Facility, Chapter 302 (20 VAC 5-302-10, et seq.) of the Virginia Administrative Code, all as set forth in Attachment A appended hereto; such amendments shall become effective on January 15, 2009.

(2) A copy of this Order and the rules adopted herein shall be forwarded promptly for publication in the Virginia Register of Regulations.

(3) We hereby direct the Director of the Division of Energy Regulation to establish and maintain on the Commission's website, a listing of all filings made pursuant to 5 VAC 5‑302‑10 received by the Director, and to provide electronic access to the documents comprising such filings.

(4) This case is dismissed and the papers herein shall be placed in the filed for ended causes.

Commissioner Dimitri did not participate in this matter.

AN ATTESTED COPY hereof shall be sent 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 State Corporation Commission, c/o Document Control Center, 1300 East Main Street, First Floor, Tyler Building, Richmond, Virginia 23219.

---

¹The rules sought to be revised in this proceeding are set forth in Chapter 302 (20 VAC 5-302-10, et seq.) of the Virginia Administrative Code; they are titled "Filing Requirements in Support of Applications for Authority to Construct and Operate an Electric Generating Facility."

²Consumer Counsel states in its comments that timely access to confidential information is important since "generation certificate applications will likely be filed along with a request for a rate adjustment clause and will require the Commission to render a decision within nine months. Va. Code § 56-585.1 A (7)." Consumer Counsel comments at 2.

³§ 56-580 D (ii).

⁴Application of Virginia Electric and Power Company, For a certificate to construct and operate a generating facility; for certificates of public convenience and necessity for a transmission line: Bear Garden Generating Station and Bear Garden-Bremo 230 kV Transmission Interconnection Line, Case No. PUE‑2008‑00014; Application of Virginia Electric and Power Company, Notification to the Commission of election to abandon the Company's bidding program and application to revise its cogeneration tariff pursuant to PURPA Section 210, Case No. PUE‑2008-00078.

⁵Application of The Potomac Edison Company d/b/a Allegheny Power, For an increase in its electric rates pursuant to Va. Code §§ 56-249.6 and 56-582 and, alternatively, request to modify Memorandum of Understanding and Order in Case No. PUE‑2000-00280, Case No. PUE-2008-00033, Final Order dated November 26, 2008.

⁶Section 56-599 of the Code of Virginia.

20VAC5-302-10. Applicability and scope.

Any application, except as noted herein, filed by a person planning to construct electric generating facilities and incidental or associated facilities in the Commonwealth of Virginia and who must apply for approval from the State Corporation Commission ("commission"), pursuant to §§ 56-46.1, and 56-580 D of the Code of Virginia must comply with the provisions of this chapter. Distributed generation facilities as they may be defined by the commission and net energy metering facilities as defined in § 56-594 of the Code of Virginia are not subject to this chapter. Applications filed pursuant to this chapter must shall set forth (i) the nature of the proposed facility, (ii) the applicant's technical and financial fitness to construct, operate and maintain the proposed facility, (iii) the effects of the facility on the environment and economic development, (iv) the effects of the facility upon reliability of electric service provided by any regulated public utility, and (v) why construction and operation of the proposed facility is not contrary to the public interest.

Construction of electric generating facilities with [ a ] rated [ capacity capacities ] of 5 MW or less may be undertaken without complying with the filing requirements established by this chapter. Persons desiring to construct such facilities shall (i) submit a letter to the Director of the Division of Energy Regulation stating the location, size and fuel type of the facility, and (ii) comply with all other requirements of federal, state and local law.

[ The filing of confidential information will be treated in accordance with ] 20VAC5-20-170 [ 5VAC5-20-170 of the] Commission's [ State Corporation Commission Rules of Practice and Procedure (5VAC5-20-10 et seq.). Where any application filed under these rules, including any supporting documents or prefiled testimony, contains information that the applicant asserts is confidential, the filing may be made under seal in accordance with 5VAC5-20-170 of the commission’s Rules of Practice and Procedure, 5VAC5-20. Any such filing shall be simultaneously accompanied by both a motion for a protective order or other confidential treatment, and an additional five copies of a redacted version of the filing to be available for public disclosure. Unredacted filings containing the confidential information shall, however, be immediately available to the commission staff for internal use at the commission. ]

20VAC5-302-20. General information, electric generating facility information and documents to be included in [ the application applications ] for [ (i) ] electric generating facilities greater than 50 MW [ and (ii) renewable energy electric generating facilities with rated capacities greater than 100 MW ].

The following information shall be provided for all proposed [ (i) ] electric generating facilities with [ a ] rated [ capacity capacities ] in excess of 50 MW [ and (ii) renewable energy electric generating facilities with rated capacities greater than 100 MW. As used in this rule, "renewable energy" shall have the same meaning as set forth in § 56-576 of the Code of Virginia ]. In addition, an applicant [ requiring the construction of natural gas facilities in conjunction with proposing ] the construction, ownership or operation of [ an a natural gas-fired ] electric generating facility shall serve [ notice a copy ] of its application for construction of the electric generating facility upon all natural gas local distribution companies in whose certificated service territories [ the such electric generating facility or interconnected ] natural gas facilities will be constructed or operated [ , contemporaneously with the filing of such application ].

1. Legal name of the applicant as well as any trade name.

2. A description of the applicant's authorized business structure, identifying the state authorizing such structure and the date thereof, e.g., if incorporated, the state and date of incorporation; if a limited liability company, the state issuing the certificate of organization and the date thereof.

3. Name and business addresses of all principal corporate officers and directors, partners, and LLC members, as appropriate.

4. Financial information for the applicant, or principal participant or participants in the project. If the applicant or principal participant or participants is a private entity, financial information should include an analysis of the entity's financial condition and audited financial statements for the two most recent fiscal years. If the applicant or principal participant or participants is a public company, financial information should include the entity's most recent stockholder report and most recent Securities and Exchange Commission Form 10-K.

5. Prefiled testimony in support of the application.

6. A discussion of the applicant's qualifications, including:

a. A summary of other projects developed and managed by the applicant. Include location, status, and operational history.

b. A detailed description of the organizational structure of the applicant. Include the division of ownership, if applicable.

c. A description of any affiliation or affiliations with an incumbent electric utility as defined in § 56-576 of the Code of Virginia.

7. Specific information about the site for the proposed facility, including:

a. A written description of the location including identification of the city or county in which the facility will be constructed. Such description should be suitable for newspaper publication and be sufficient for identification of affected areas.

b. A description of the site, and a depiction on topographic maps of the proposed site.

c. The status of site acquisition (i.e., purchase option, ownership, etc.).

d. A description of any applicable local zoning or land use approvals required and the status of such approvals.

8. Specific information about the proposed facility, including:

a. Description of all major systems, facility configuration and expected suppliers of major components.

b. Nameplate capacity, gross dependable capacity, net dependable capacity and expected seasonal heat rates.

c. Estimated costs, and schedule for construction, testing and commercialization.

9. A description of the fuel supply arrangement for the proposed facility. The description should detail:

a. Fuel type, quality and source or sources.

b. Transportation and fuel storage arrangements for fuel delivery.

c. Identification of all new pipeline facilities, if any, needed to serve the proposed facility.

d. Ownership of any such facilities.

e. Plans for constructing such facilities.

f. The location and routing of any such facilities.

g. The size of such facilities.

h. Whether such facilities will be utilized to provide or enhance fuel supplies to other entities.

i. Identification of the pipeline or gas distribution company and the rate schedule the applicant intends to utilize in order to serve the proposed generating facility. Identification of whether the service is firm or interruptible.

j. If the applicant is to be served by firm capacity from an interstate pipeline, identification of whether the capacity is to be acquired through the construction of new facilities, via capacity that is currently unsubscribed or through capacity purchased on the secondary market.

k. If pipeline capacity is to be constructed, identification of the FERC Federal Energy Regulatory Commission docket number or any open season that has been held by the interstate pipeline.

l. If capacity is to be purchased on the secondary market, identification of the availability of secondary market capacity in the plant's market area during days that the plant intends to operate.

m. Identification of the proposed in-service date of any facilities to be constructed.

n. In general terms, description of the availability of fuel supplies required to serve the proposed facility.

10. A discussion of economic impacts (both positive and negative), of the project. The discussion should address the tax and employment implications of the project.

11. A list of other local, state or federal government agencies whose requirements must be met in connection with the construction or operation of the project and a statement of the status of the approval procedures for each of these agencies.

12. An analysis of the environmental impact of the project shall be provided sufficient to enable the commission to make the determinations required by §§ 56-46.1 and 56-580 D of the Code of Virginia. This analysis shall include, but is not limited to, the impacts on the environment and natural resources, analysis of alternatives considered, unavoidable adverse impacts, mitigation measures proposed to minimize unavoidable impacts, and any irreversible environmental changes. The information required by this subdivision shall be submitted to the Department of Environmental Quality, simultaneously with its filing with the commission, for coordination and review by state agencies responsible for environmental and natural resource protection. Such The information shall include at a minimum, the following identify:

a. Air quality. Discussion should identify required Required air permits, expected restrictions, expected emissions, rates of emissions, and any needed emissions offsets or allowances.

b. Water source. Discussion should include required Required permits for water withdrawals, expected restrictions, the amount of water estimated to be used, the source of such water, identification of a backup source of water, if any, and identification of any facilities that need to be constructed to provide such water.

c. Discharge of cooling water. Discussion should include an identification of required Required permits for water discharge and potential impacts on regional water flows.

d. Tidal and nontidal wetlands. Discussion should include an identification of any required Required permits related to the wetlands and an identification of any tidal and nontidal wetlands located near the proposed site and how such wetlands will be impacted by applicant's proposed facility.

e. Solid and hazardous wastes. Discussion should address impact Impact of solid and hazardous wastes on local water resources.

f. Natural Impact on natural heritage resources, and on threatened and endangered species.

g. Erosion and sediment control measures.

h. Archaeological, historic, scenic, cultural, or architectural resources in the area.

i. Chesapeake Bay Preservation Areas designated by the locality.

j. Wildlife resources.

k. Recreation, agricultural and forest resources. Discussion should identify Agricultural and forest resources and federal, local, state or private parks and recreation areas.

l. The use Use of pesticides and herbicides.

m. Geology and mineral resources, caves, and sinkholes.

n. Transportation infrastructure.

13. A general discussion of reliability impacts including:

a. A description of transmission interconnection requirements and needed interconnection facilities.

b. A description of the potential impact of the proposed facility on the interconnected transmission system. Discussion should identify and summarize any system impact studies or proposed studies.

c. A description of anticipated services (ancillary services, re-dispatch, energy imbalance, etc.) that may be provided to any transmission service provider.

d. A discussion of existing and expected generation reserves in the region and the impact of the proposed facility on such reserves.

14. A discussion of whether the proposed facility is not contrary to the public interest. Such The discussion shall include, but is not limited to, an analysis of any reasonably known impacts the proposed facility may have upon reliability of service to, and rates paid by, customers of any regulated public utility for service in the Commonwealth, including water service, gas distribution service, electric distribution service, and electric transmission service.

15. A discussion of whether and, if so, how the project will further the goals of advancement of electric competition in Virginia.

20VAC5-302-25. General information, electric generating facility information and documents to be included in [ the application applications ] for [ (i) ] electric generating facilities equal to 50 MW or less but greater than 5 MW [ , and (ii) renewable energy electric generating facilities with rated capacities equal to 100 MW or less but greater than 5 MW ].

The following information shall be provided for all proposed [ (i) ] electric generating facilities with [ a ] rated [ capacity capacities ] of 50 MW or less but greater than 5 MW [ , and (ii) renewable energy electric generating facilities with rated capacities equal to 100 MW or less but greater than 5 MW. As used in this rule, "renewable energy" shall have the same meaning as set forth in § 56-576 of the Code of Virginia ].

1. Legal The legal name of the applicant as well as any trade name.

2. A description of the applicant's authorized business structure, identifying the state authorizing such structure and the date thereof, e.g., if incorporated, the state and date of incorporation; if a limited liability company, the state issuing the certificate of organization and the date thereof.

3. Name The name and business addresses of all principal corporate officers and directors, partners, and LLC members, as appropriate.

4. Financial information for the applicant, or principal participant or participants in the project. If the applicant or principal participant or participants is a private entity, financial information should include an analysis of the entity's financial condition and audited financial statements for the two most recent fiscal years, if available. If the applicant or principal participant or participants is a public company, financial information should include the entity's most recent stockholder report and most recent Securities and Exchange Commission Form 10-K. If such information is unavailable, provide evidence that applicant has the financial resources, or access to capital, necessary to complete the proposed project.

5. A discussion of the applicant's qualifications, including:

a. A summary of other projects developed and managed by the applicant. Include location, status, and operational history.

b. A description of any affiliation or affiliations with an incumbent electric utility as defined in § 56-576 of the Code of Virginia.

6. Specific information about the site for the proposed facility, including:

a. A written description of the location including identification of the city or county in which the facility will be constructed. Such The description should be suitable for newspaper publication and be sufficient for identification of affected areas.

b. A description of the site, and a depiction on topographic maps of the proposed site.

c. The status of site acquisition (i.e., purchase option, ownership, etc.).

7. A general description of the proposed facility, type of facility, size and fuel type.

8. A general description of the fuel supply arrangement for the proposed facility.

9. A general discussion of the economic developments impacts of the project.

10. A list of other local, state or federal government agencies whose requirements must be met in connection with the construction or operation of the project and a statement of the status of the approval procedures for each of these agencies.

11. An analysis of the environmental impact of the project shall be provided sufficient to enable the commission to make the determinations required by §§ 56-46.1 and 56-580 D of the Code of Virginia. This analysis shall include, but is not limited to, the impacts on the environment and natural resources, analysis of alternatives considered, unavoidable adverse impacts, mitigation measures proposed to minimize unavoidable impacts, and any irreversible environmental changes. The information required by this subdivision shall be submitted to the Department of Environmental Quality, simultaneously with its filing with the commission, for coordination and review by state agencies responsible for environmental and natural resource protection. Such The information shall include at a minimum, the following identify:

a. Air quality. Discussion should identify required Required air permits, expected restrictions, expected emissions, rates of emissions, and any needed emissions offsets or allowances.

b. Water source. Discussion should include required Required permits for water withdrawals, expected restrictions, the amount of water estimated to be used, the source of such water, identification of a backup source of water, if any, and identification of any facilities that need to be constructed to provide such water.

c. Discharge of cooling water. Discussion should include an identification of required Required permits for water discharge and potential impacts on regional water flows.

d. Tidal and nontidal wetlands. Discussion should include an identification of any required Required permits related to the wetlands and an identification of any tidal and nontidal wetlands located near the proposed site and how such wetlands will be impacted by applicant's proposed facility.

e. Solid and hazardous wastes. Discussion should address impact Impact of solid and hazardous waste on local water resources.

f. Natural Impact on natural heritage resources, and on threatened and endangered species.

g. Erosion and sediment control measures.

h. Archaeological, historic, scenic, cultural, or architectural resources in the area.

i. Chesapeake Bay Preservation Areas designated by the locality.

j. Wildlife resources.

k. Recreation, agricultural and forest resources. Discussion should identify Agricultural and forest resources and federal, local, state or private parks and recreation areas.

l. The use Use of pesticides and herbicides.

m. Geology and mineral resources, caves, and sinkholes.

n. Transportation infrastructure.

12. A general discussion of reliability impacts including:

a. A description of transmission interconnection requirements and needed interconnection facilities.

b. A description of the potential impact of the proposed facility on the interconnected transmission system. Discussion should identify and summarize any system impact studies or proposed studies.

c. A description of anticipated services (ancillary services, redispatch, energy imbalance, etc.) that may be provided to any transmission service provider.

d. A discussion of existing and expected generation reserves in the region and the impact of the proposed facility on such reserves.

13. Any other information the applicant wishes to include that will demonstrate that the project is not contrary to the public interest.

14. A discussion of whether and, if so, how the project will further the goals of advancement of electric competition in Virginia.

20VAC5-302-35. Information required from [ incumbent ] electric utilities and affiliates of incumbent electric utilities [ subject to § 56-585.1 of the Code of Virginia ].

Any incumbent electric utility as defined in § 56-576 of the Code of Virginia and any affiliate of an incumbent electric utility proposing to construct an electric generating facility within its control area in the Commonwealth of Virginia [ should and subject to the commission's ratemaking authority pursuant to § 56-585.1 of the Code of Virginia shall ] provide a discussion of how justification of the need for the proposed facility will impact its ability to exert market power within its control area. In addition, the following information should shall be included:

1. Total capacity controlled by, or under contract to, the applicant and its affiliates located within the control area and reasonably accessible to the control area through transmission interconnections, with and without the proposed facility.

2. Total capacity located within the control area and reasonably accessible to the control area through transmission interconnections, with and without the proposed facility.

3. A calculation showing the percentage of capacity within and accessible to the control area through transmission interconnections owned by the applicant and its affiliates, with and without the proposed facility. 1. [ Feasibility Initial feasibility ] and [ front end ] engineering design studies that support the specific [ plant design, ] plant type and site selected.

2. [ Fuel Initial fuel ] supply studies that demonstrate the availability and adequacy of selected fuels.

3. Detailed support for planning assumptions regarding plant performance and operating costs, including historical information for similar units [ , where available ].

4. Economic studies that compare the selected alternative with other options considered, including sensitivity analyses and production costing simulations of the applicant's overall generating resources that demonstrate that the selected option is the best alternative.

5. Load and generating capacity reserve forecast information that demonstrates the need for the plant in the in-service year proposed.

6. Detailed cost estimate for the facility, [ included including ] projected costs of construction, transmission interconnections, fuel supply related infrastructure improvements and project financing.

VA.R. Doc. No. R08-1413; Filed December 23, 2008, 2:55 p.m.