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6/11/2024 - Agenda with Reports
Page 1 of 5 Welcome to the 1:30 p.m. session for the Board of Supervisors meeting for June 11, 2024. A. OPENING CEREMONIES 1. Roll Call The sole purpose of this 1:30 p.m. session is to hold a closed meeting prior to the general 3:00 p.m. session. B. CLOSED MEETING, pursuant to the Code of Virginia as follows: 1. Section 2.2-3711(A)(1) of the Code of Virginia, for the Board to discuss the County Administrator’s and County Attorney’s annual performance evaluations. The Board will go into closed session, and upon its conclusion, will recess this meeting until 3:00 p.m. for the regular scheduled Board of Supervisors meeting. Roanoke County Board of Supervisors Agenda June 11, 2024 Page 2 of 5 NOTE: The Board of Supervisors held a closed session meeting at 1:30 p.m. in the Board Conference Room prior to the regularly scheduled Board Meeting at 3:00 p.m. pursuant to Section 2.2 -3711(A)(1) to discuss the annual performance evaluations for the County Administrator and County Attorney. INVOCATION: Pastor Joseph J. Mayo, Paradise Cathedral PLEDGE OF ALLEGIANCE TO THE UNITED STATES FLAG Disclaimer: “Any invocation that may be offered before the official start of the Board meeting shall be the voluntary offering of a private citizen, to and for the benefit of the Board. The views or beliefs expressed by the invocation speaker have not been previously reviewed or approved by the Board and do not necessarily represent the religious beliefs or views of the Board in part or as a whole. No member of the community is required to attend or participate in the invocation and such decision will have no impact on their right to actively participate in the business of the Board.” Roanoke County Board of Supervisors Agenda June 11, 2024 Page 3 of 5 Good afternoon and welcome to our meeting for June 11, 2024. Regular meetings are held on the second and fourth Tuesday at 3:00 p.m. Public hearings are held at 7:00 p.m. on the fourth Tuesday of each month. Deviations from this schedule will be announced. The meetings are broadcast live on RVTV, Channel 3, and will be rebroadcast on Thursday at 7:00 p.m. and on Sunday from 10:00 a.m. until 5 p.m. Board of Supervisors meetings can also be viewed online through Roanoke County’s website at www.RoanokeCountyVA.gov. Individuals who require assistance or special arrangements to participate in or attend Board of Supervisors meetings should contact the Clerk to the Board at (540) 772-2005 at least 48 hours in advance. Please turn all cell phones off or place them on silent. A. OPENING CEREMONIES 1. Roll Call B. CERTIFICATION RESOLUTION C. REQUESTS TO POSTPONE, ADD TO OR CHANGE THE ORDER OF AGENDA ITEMS D. FIRST READING OF ORDINANCES 1. Ordinance amending Chapter 8.1 of the Roanoke County Code and repealing Chapter 23 of the Roanoke County Code in order to create a Consolidated Erosion and Stormwater Management Program Ordinance. (Tarek Moneir, Director of Development Services) E. APPOINTMENT 1. Roanoke Valley Alleghany Regional Commission (Citizen Appointment At-Large) J. Lee E. Osborne - Term Expires: June 30, 2027 Roanoke County Board of Supervisors Agenda June 11, 2024 Page 4 of 5 F. CONSENT AGENDA ALL MATTERS LISTED UNDER THE CONSENT AGENDA ARE CONSIDERED BY THE BOARD TO BE ROUTINE AND WILL BE ENACTED BY ONE RESOLUTION IN THE FORM OR FORMS LISTED BELOW. IF DISCUSSION IS DESIRED, THAT ITEM WILL BE REMOVED FROM THE CONSENT AGENDA AND WILL BE CONSIDERED SEPARATELY 1. Approval of minutes – May 16, 2024 2. Approval of minutes – May 28, 2024 3. Resolution requesting acceptance of Ridge Top Road (Route 876) and Almond Road (Route 877) into the Virginia Department of Transportation Secondary System of State Highways 4. Request to accept and allocate funds in the amount of $31,076.10 from the Commonwealth of Virginia for the Library of Virginia's Records Preservation Program 5. Ordinance approving an intergovernmental agreement for operation of the Roanoke Regional Fire Training Center (Second Reading) G. CITIZENS’ COMMENTS AND COMMUNICATIONS H. REPORTS 1. Unappropriated, Board Contingency and Capital Reserves Report 2. Outstanding Debt Report I. REPORTS AND INQUIRIES OF BOARD MEMBERS 1. Martha B. Hooker 2. Paul M. Mahoney 3. David F. Radford 4. Tammy E. Shepherd 5. Phil C. North J. WORK SESSION 1. Work Session with Energy Right staff, Chloe Hodges, Ben Wilson, and Skyler Zunk. Page 5 of 5 K. CLOSED MEETING, pursuant to the Code of Virginia as follows: 1. Section 2.2-3711(A)(1) of the Code of Virginia, for the Board to meet with the County Administrator and, subsequently, the County Attorney, to discuss the County Administrator’s and County Attorney’s annual performance evaluations. L. CERTIFICATION RESOLUTION M. ADJOURNMENT AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER ON TUESDAY, JUNE 11, 2024 RESOLUTION CERTIFYING THE CLOSED MEETING WAS HELD IN CONFORMITY WITH THE CODE OF VIRGINIA WHEREAS, the Board of Supervisors of Roanoke County, Virginia has convened a closed meeting on this date pursuant to an affirmative recorded vote and in accordance with the provisions of The Virginia Freedom of Information Act; and WHEREAS, Section 2.2-3712 of the Code of Virginia requires a certification by the Board of Supervisors of Roanoke County, Virginia, that such closed meeting was conducted in conformity with Virginia law. NOW, THEREFORE, BE IT RESOLVED, that the Board of Supervisors of Roanoke County, Virginia, hereby certifies that, to the best of each member’s knowledge: 1. Only public business matters lawfully exempted from open meeting requirements by Virginia law were discussed in the closed meeting which this certification resolution applies; and 2. Only such public business matters as were identified in the motion convening the closed meeting were heard, discussed or considered by the Board of Supervisors of Roanoke County, Virginia. Page 1 of 2 ACTION NO. ITEM NO. D.1 AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY, VIRGINIA HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER MEETING DATE: June 11, 2024 AGENDA ITEM: Ordinance amending Chapter 8.1 of the Roanoke County Code and Repealing Chapter 23 of the Roanoke County Code in order to create a consolidated Erosion and Stormwater Management Program Ordinance SUBMITTED BY: Tarek Moneir Director of Development Services APPROVED BY: Richard L. Caywood County Administrator ISSUE: Pursuant to both updates to Virginia law and also Virginia’s consolidation of the Erosion and Sediment Control regulations and Stormwater Management regulations into the new Virginia Erosion and Stormwater Management (VESM) Regulation, Roanoke County must consolidate its Chapter 8.1 - Erosion and Sediment Control (ESC) ordinance and Chapter 23 - Stormwater Management (SWM) ordinance into a single Erosion and Stormwater Management (ESM) ordinance to: (i) clarify program requirements, (ii) eliminate redundancies, and (iii) correct inconsistencies between the erosion and sediment control and stormwater management programs. BACKGROUND: On June 22, 2023, the State Water Control Board approved and adopted the Virginia Erosion and Stormwater Management (VESM) Regulation (9VAC25-875) and approved the repeal of the Erosion and Sediment Control Regulation (9VAC25 -840), Erosion and Sediment Control and Stormwater Management Certification Regulations (9VAC25 - 850), and the Virginia Stormwater Management Program Regulation (9VAC25 -870). The VESM Regulation and repeal of the other regulations will be effective July 1, 2024. Also on July 1, 2024, Chapters 68 and 758 of the 2016 Acts of Assembly become effective. Those Acts, referred to as the “Consolidation Bill,” combine stormwater Page 2 of 2 management and erosion and sediment control requirements under the Virginia Erosion and Stormwater Management Act (VESMA), §§ 62.1-44.15:24 through 62.1-44.15:50 of the Code of Virginia. With the Consolidation Bill and VESM Regulation becoming effective on July 1, 2024, local ordinances for the administration of a Virginia Erosion and Sediment Control Program (VESCP) or Virginia Stormwater Management Program (VSMP) must be updated to reflect both the new law and regulations. Consistent with § 62.1-44.15:27 of the Code of Virginia, the Virginia Department of Environmental Quality (DEQ) has prepared a Virginia Erosion and Stormwater Management Program (VESMP) Model Ordinance to assist localities in the development of a local ordinance. The DEQ is not required to review and/or approve local ordinances, or associated documents, manuals, etc., prior to adoption. Roanoke County may, by local ordinance adopted pursuant to § 62.1-44.15:33 or 62.1-44.15:65 of the Code of Virginia, establish more stringent local requirements. DISCUSSION: In developing the County’s new ESM ordinance, the Department of Development Services(with input from County Attorney’s office) used the DEQ (VESMP) Model Ordinance as a framework and added unique sections from the County’s current ordinances. NOTE: There are no changes or additions in the proposed ESM ordinance related to the recommended lot drainage changes that were discussed with the Board last October. FISCAL IMPACT: There is no fiscal impact to Roanoke County associated with these changes to the County Code. STAFF RECOMMENDATION: Staff recommends that the Board of Supervisors approve the first reading of the attached ordinance and schedule the matter for a second reading and public hearing on June 25, 2024. 1 CHAPTER 8.1 - EROSION AND STORMWATER MANAGEMENT PROGRAM Pursuant to § 62.1-44.15:27 of the Code of Virginia, this ordinance is adopted as part of an initiative to integrate the County of Roanoke stormwater management requirements with the County of Roanoke erosion and sediment control requirements into a consolidated erosion and stormwater management program. The erosion and stormwater management program is intended to facilitate the submission and approval of plans, issuance of permits, payment of fees, and coordination of inspection and enforcement activities for land-disturbing activities into a more convenient and efficient manner for both the County of Roanoke and those responsible for compliance with these programs. Section 8.1-1 TITLE, PURPOSE, AND AUTHORITY. A. This ordinance shall be known as the “Erosion and Stormwater Management Ordinance of the County of Roanoke.” B. The purpose of this ordinance is to ensure the general health, safety, and welfare of the citizens of the County of Roanoke to protect the quality and quantity of state waters from the potential harm of unmanaged stormwater and soil erosion, including protection from a land disturbing activity causing unreasonable degradation of properties, water quality, stream channels, steep slopes, and other natural resources, and to establish procedures whereby stormwater requirements related to water quality and quantity shall be administered and enforced. C. This ordinance is authorized by § 62.1-44.15:27 of the Code of Virginia. D. Applicability of chapter in Town of Vinton: The provisions of this chapter shall be applicable within the corporate limits of the Town of Vinton. Administrative procedures and review fees may be established to accommodate the review of plans for development located within the Town. Section 8.1-2 DEFINITIONS. The following words and terms, when used in this ordinance, shall have the following meanings, unless the context clearly indicates otherwise. “Adequate channel” means a channel that will convey the designated frequency storm event without overtopping the channel bank nor causing erosive damage to the channel bed or banks. “Agreement in lieu of a plan” means a contract between the County of Roanoke and the owner or permittee that specifies methods that shall be implemented to comply with the requirements of the VESMA and this ordinance for the construction of a (i) single-family detached residential structure or (ii) farm building or structure on a parcel of land with a total impervious cover percentage, including the impervious cover from the farm building or structure to be constructed, 2 of less than five percent, or (iii) other regulated land disturbing activities that disturb less than 10,000 square feet; such contract may be executed by the County of Roanoke in lieu of a soil erosion control and stormwater management plan. “Administrator” means the County of Roanoke’s County Administrator or his or her designee who shall administer the Virginia Erosion and Stormwater Management Program established by this Ordinance. “Applicant” means any person submitting a soil erosion control and stormwater management plan to a VESMP authority for approval to obtain authorization to commence a land-disturbing activity. “Best management practice” or “BMP” means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices, including both structural and nonstructural practices, to prevent or reduce the pollution of surface waters and groundwater systems. 1. “Nonproprietary best management practice” means both structural and nonstructural practices to prevent or reduce the pollution of surface waters and groundwater systems that are in the public domain and are not protected by trademark, patent, or copyright. 2. “Proprietary best management practice” means both structural and nonstructural practices to prevent or reduce the pollution of surface waters and groundwater systems that are privately owned and controlled and may be protected by trademark, patent, or copyright. “Board” means the State Water Control Board. “Causeway” means a temporary structural span constructed across a flowing watercourse or wetland to allow construction traffic to access the area without causing erosion damage. “Channel” means a natural stream or manmade waterway. “Clean Water Act” or “CWA” means the federal Clean Water Act (33 USC § 1251 et seq.), formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, as amended by Public Law 95-217, Public Law 95- 576, Public Law 96-483, and Public Law 97-117, or any subsequent revisions thereto. “Cofferdam” means a watertight temporary structure in a river, lake, etc., for keeping the water from an enclosed area that has been pumped dry so that bridge foundations, dams, etc., may be constructed. “Common plan of development or sale” means a contiguous area where separate and distinct construction activities may be taking place at different times on different schedules. 3 “Comprehensive stormwater management plan” means a plan, which may be integrated with other land use plans or regulations that specifies how the stormwater quality components, quantity components, or both are to be managed based on an entire watershed or a portion thereof. The plan may also provide for the remediation of erosion, flooding, and water quality and quantity problems caused by prior development. “Construction activity” means any clearing, grading, or excavation associated with large construction activity or associated with small construction activity. “Control measure” means any BMP, stormwater facility, or other method used to minimize the discharge of pollutants to state waters. “CWA and regulations” mean the Clean Water Act and applicable regulations published in the Code of Federal Regulations promulgated thereunder. For the purposes of this ordinance, it includes state program requirements. “Dam” means a barrier to confine or raise water for storage or diversion, to create a hydraulic head, to prevent gully erosion, or to retain soil, rock, or other debris. “Denuded” means land that has been physically disturbed and no longer supports vegetative cover. “Department” or “DEQ” means the Virginia Department of Environmental Quality. “Development” means land disturbance and the resulting landform associated with the construction of residential, commercial, industrial, institutional, recreational, transportation- related, or utility facilities or structures or the clearing of land for non-agricultural or non- silvicultural purposes. The regulation of discharges from development, for purposes of stormwater management, does not include the exclusions found in 9VAC25-875-860. “Dike” [or “levee”] means an earthen embankment constructed to confine or control water, especially one built along the banks of a river to prevent overflow of lowlands. “Discharge” when used without qualification, means the discharge of a pollutant. “Discharge of a pollutant” means: 1. Any addition of any pollutant or combination of pollutants to state waters from any point source; or 2. Any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft which is being used as a means of transportation. This definition includes addition of pollutants into surface waters from: surface runoff that is collected or channeled by man; discharges through pipes, sewers, or other conveyances 4 owned by a state, municipality, or other person that do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. This term does not include an addition of pollutants by any indirect discharger. “District” or “soil and water conservation district” means a political subdivision of the Commonwealth organized in accordance with the provisions of Article 3 (§ 10.1-506 et seq.) of Chapter 5 of Title 10.1 of the Code of Virginia. “Diversion” means a channel with a supporting ridge on the lower side constructed across or at the bottom of a slope for the purpose of intercepting surface runoff. “Dormant” means denuded land that is not actively being brought to a desired grade or condition. “Drainage area” means a land area, water area, or both from which runoff flows to a common point. “Energy dissipator” means a non-erodible structure which reduces the velocity of concentrated flow to reduce its erosive effects. “Environmental Protection Agency” or “EPA” means the United States Environmental Protection Agency. “Erosion and sediment control plan” means a document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives. “Erosion impact area” means an area of land that is not associated with a current land- disturbing activity but is subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of 10,000 square feet or less used for residential purposes or to shorelines where the erosion results from wave action or other coastal processes. “ESC” means erosion and sediment control. “ESM plan” means a soil erosion control and stormwater management plan, commonly referred to as the erosion control and stormwater management plan. “Farm building or structure” means the same as defined in § 36-97 of the Code of Virginia and includes any building or structure used for an agritourism activity, as defined in § 3.2-6400 of the Code of Virginia, and any related impervious services including roads, driveways, and parking areas. 5 “Flood fringe” means the portion of the floodplain outside the floodway that is usually covered with water from the 100-year flood or storm event. This includes the flood or floodway fringe designated by the Federal Emergency Management Agency. “Flooding” means a volume of water that is too great to be confined within the banks or walls of the stream, water body, or conveyance system and that overflows onto adjacent lands, thereby causing or threatening damage. “Floodplain” means the area adjacent to a channel, river, stream, or other water body that is susceptible to being inundated by water normally associated with the 100-year flood or storm event. This includes the floodplain designated by the Federal Emergency Management Agency. “Flood-prone area” means the component of a natural or restored stormwater conveyance system that is outside the main channel. Flood-prone areas may include the floodplain, the floodway, the flood fringe, wetlands, riparian buffers, or other areas adjacent to the main channel. “Floodway” means the channel of a river or other watercourse and the adjacent land areas, usually associated with flowing water, that must be reserved to discharge the 100-year flood or storm event without cumulatively increasing the water surface elevation more than one foot. This includes the floodway designated by the Federal Emergency Management Agency. “Flume” means a constructed device lined with erosion-resistant materials intended to convey water on steep grades. “General permit” means a permit authorizing a category of discharges under the CWA and the VESMA within a geographical area. “Hydrologic Unit Code” or “HUC” means a watershed unit established in the most recent version of Virginia's 6th Order National Watershed Boundary Dataset unless specifically identified as another order. “Impervious cover” means a surface composed of material that significantly impedes or prevents natural infiltration of water into soil. “Incorporated place” means a city, town, township, or village that is incorporated under the Code of Virginia. “Inspection” means an on-site review of the project’s compliance with any applicable design criteria, or an on-site review to obtain information or conduct surveys or investigations necessary in the implementation or enforcement of the VESMA and applicable regulations. “Karst area” means any land area predominantly underlain at the surface or shallow subsurface by limestone, dolomite, or other soluble bedrock regardless of any obvious surface karst features. 6 “Karst features” means sinkholes, sinking and losing streams, caves, large flow springs, and other such landscape features found in karst areas. “Land disturbance” or “land-disturbing activity” means a manmade change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including construction activity such as the clearing, grading, excavating, or filling of land. “Land-disturbance approval” means an approval allowing a land-disturbing activity to commence as issued by the VESMP authority after the requirements of § 62.1-44.15:34 of the Code of Virginia have been met. “Large construction activity” means construction activity including clearing, grading, and excavating, except operations that result in the disturbance of less than five acres of total land area. Large construction activity also includes the disturbance of less than five acres of total land area that is a part of a larger common plan of development or sale if the larger common plan will ultimately disturb five acres or more. Large construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility. “Linear development project” means a land-disturbing activity that is linear in nature such as, but not limited to, (i) the construction of electric and telephone utility lines, and natural gas pipelines; (ii) construction of tracks, rights-of-way, bridges, communication facilities and other related structures of a railroad company; (iii) highway construction projects; (iv) construction of stormwater channels and stream restoration activities; and (v) water and sewer lines. Private subdivision roads or streets shall not be considered linear development projects. “Live watercourse” means a definite channel with bed and banks within which concentrated water continuously flows. “Locality” means the County of Roanoke. “Localized flooding” means smaller scale flooding that may occur outside of a stormwater conveyance system. This may include high water, ponding, or standing water from stormwater runoff, which is likely to cause property damage or unsafe conditions. “Main channel” means the portion of the stormwater conveyance system that contains the base flow and small frequent storm events. “Manmade” means constructed by man. “Minimize” means to reduce or eliminate the discharge of pollutants to the extent achievable using stormwater controls that are technologically available and economically practicable. “Minor modification” means modifications and amendments not requiring extensive review and evaluation including changes in EPA promulgated test protocols, increasing monitoring frequency requirements, changes in sampling locations, and changes to compliance dates within 7 the overall compliance schedules. A minor permit modification or amendment does not substantially alter permit conditions, substantially increase or decrease the amount of surface water impacts, increase the size of the operation, or reduce the capacity of the facility to protect human health or the environment. “Natural channel design concepts” means the utilization of engineering analysis and fluvial geomorphic processes to create, rehabilitate, restore, or stabilize an open conveyance system for the purpose of creating or recreating a stream that conveys its bank-full storm event within its banks and allows larger flows to access its bank-full bench and its floodplain. “Natural stream” means a tidal or nontidal watercourse that is part of the natural topography. It usually maintains a continuous or seasonal flow during the year and is characterized as being irregular in cross-section with a meandering course. Constructed channels such as drainage ditches or swales shall not be considered natural streams; however, channels designed utilizing natural channel design concepts may be considered natural streams. “Non-erodible” means a material that will not experience surface wear due to natural forces, such as riprap, concrete, plastic, etc. “Nonpoint source pollution” means pollution such as sediment, nitrogen, phosphorous, hydrocarbons, heavy metals, and toxics whose sources cannot be pinpointed but rather are washed from the land surface in a diffuse manner by stormwater. “Operator” means the owner or operator of any facility or activity subject to the VESMA and this ordinance. In the context of stormwater associated with a large or small construction activity, operator means any person associated with a construction project that meets either of the following two criteria: (i) the person has direct operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications or (ii) the person has day-to-day operational control of those activities at a project that are necessary to ensure compliance with a stormwater pollution prevention plan for the site or other permit or VESMP authority permit conditions (i.e., they are authorized to direct workers at a site to carry out activities required by the stormwater pollution prevention plan or comply with other permit conditions). “Owner” means the same as defined in § 62.1-44.3 of the Code of Virginia. For a regulated land-disturbing activity that does not require a permit, “owner” also means the owner or owners of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a property. “Peak flow rate” means the maximum instantaneous flow from a prescribed design storm at a particular location. “Percent impervious” means the impervious area within the site divided by the area of the site multiplied by 100. 8 “Permit” or “Construction General Permit (CGP)” means the General VPDES Permit for Discharges of Stormwater from Construction Activities found at 9VAC25-880-70. Coverage under this permit is issued by the Department pursuant to § 62.1-44.15 of the Code of Virginia for stormwater discharges from a land-disturbing activity. “Permittee” means the person to whom the permit is issued. “Person” means any applicant, owner, individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, governmental body, including a federal or state entity as applicable, any interstate body, or any other legal entity. “Point of discharge” means a location at which concentrated stormwater runoff is released. “Point source” means any discernible, confined, and discrete conveyance including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural stormwater runoff. “Pollutant discharge” means the average amount of a particular pollutant measured in pounds per year or another standard reportable unit as appropriate, delivered by stormwater runoff. “Pollution” means such alteration of the physical, chemical, or biological properties of any state waters as will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety, or welfare, or to the health of animals, fish, or aquatic life; (b) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (c) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses, provided that (i) an alteration of the physical, chemical, or biological property of state waters, or a discharge or deposit of sewage, industrial wastes, or other wastes to state waters by any owner which by itself is not sufficient to cause pollution, but which, in combination with such alteration of, or discharge or deposit to state waters by other owners, is sufficient to cause pollution; (ii) the discharge of untreated sewage by any owner into state waters; and (iii) contributing to the contravention of standards of water quality duly established by the State Water Control Board, are “pollution” for the terms and purposes of this ordinance. “Post-development” refers to conditions that reasonably may be expected or anticipated to exist after completion of the land development activity on a specific site or tract of land. “Predevelopment” refers to the conditions that exist at the time that plans for the land- disturbing activity are submitted to the VESMP authority. Where phased development or plan approval occurs (preliminary grading, demolition of existing structures, roads, and utilities, etc.), the existing conditions at the time prior to the commencement of land-disturbing activity shall establish predevelopment conditions. 9 “Prior developed land” means land that has been previously utilized for residential, commercial, industrial, institutional, recreational, transportation-related, or utility facilities or structures, and that will have the impervious areas associated with those uses altered during a land- disturbing activity. “Qualified personnel” means a person knowledgeable in the principles and practices of erosion and sediment control and stormwater management who possesses the skills to assess conditions at the construction site for the operator that could impact stormwater quality and quantity and to assess the effectiveness of any erosion and sediment control measures or stormwater management facilities selected to control the quality and quantity of stormwater discharges from the construction activity. “Responsible land disturber” or “RLD” means an individual holding a certificate issued by the department who is responsible for carrying out the land-disturbing activity in accordance with the approved erosion and sediment control plan or ESM plan. The RLD may be the owner, applicant, permittee, designer, superintendent, project manager, contractor, or any other project or development team member. The RLD must be designated on the erosion and sediment control plan, ESM plan, or permit as defined in this ordinance as a prerequisite for engaging in land disturbance. “Runoff” or “stormwater runoff” means that portion of precipitation that is discharged across the land surface or through conveyances to one or more waterways. “Runoff characteristics” includes maximum velocity, peak flow rate, volume, and flow duration. “Runoff volume” means the volume of water that runs off the land development project from a prescribed storm event. “Sediment basin” means a temporary impoundment built to retain stormwater, sediment, and debris with a controlled stormwater release structure. “Sediment trap” means a temporary impoundment built to retain stormwater, sediment, and debris which is formed by constructing an earthen embankment with a stone outlet. “Sheet flow” (also called “overland flow”) means shallow, unconcentrated, and irregular flow down a slope. Overland flow usually does not exceed 200 feet under natural conditions. “Shoreline erosion control project” means an erosion control project approved by local wetlands boards, the Virginia Marine Resources Commission, the Department, or the United States Army Corps of Engineers and located on tidal waters and within non-vegetated or vegetated wetlands as defined in Title 28.2 of the Code of Virginia. “Site” means the land or water area where any facility or land-disturbing activity is physically located or conducted, including adjacent land used or preserved in connection with the facility or 10 land-disturbing activity. Areas channelward of mean low water in tidal Virginia shall not be considered part of a site. “Site hydrology” means the movement of water on, across, through, and off the site as determined by parameters including soil types, soil permeability, vegetative cover, seasonal water tables, slopes, land cover, and impervious cover. “Slope drain” means a pipe, tube, or conduit made of nonerosive material extending from the top to the bottom of a cut or fill slope with an energy dissipator at the outlet end for the purpose of carrying stormwater down the slope in a non-erosive manner. “Small construction activity” means: 1. Construction activities including clearing, grading, and excavating that result in land disturbance that is equal to or greater than one acre and less than five acres. Small construction activity also includes the disturbance of less than one acre of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb equal to or greater than one and less than five acres. Small construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility. The department may waive the otherwise applicable requirements in a general permit for a stormwater discharge from construction activities that disturb less than five acres where stormwater controls are not needed based on an approved “total maximum daily load” (TMDL) that addresses the pollutants of concern or, for nonimpaired waters that do not require TMDLs, an equivalent analysis that determines allocations for small construction sites for the pollutants of concern or that determines that such allocations are not needed to protect water quality based on consideration of existing in-stream concentrations, expected growth in pollutant contributions from all sources, and a margin of safety. The pollutants of concern include sediment or a parameter that addresses sediment (such as total suspended solids, turbidity, or siltation) and any other pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from the construction activity. The operator shall certify to the Department that the construction activity will take place, and stormwater discharges will occur, within the drainage area addressed by the TMDL or provide an equivalent analysis. As of the start date in Table 1 of 9VAC25-31-1020, all certifications submitted in support of the waiver shall be submitted electronically by the owner or operator to the Department in compliance with this subdivision and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25-31, permittees may be required to report electronically if specified by a particular permit. 11 2. Any other construction activity designated by either the Department or the EPA regional administrator, based on the potential for contribution to a violation of a water quality standard or for significant contribution of pollutants to surface waters. “Soil erosion” means the movement of soil by wind or water into state waters or onto lands in the Commonwealth. “Soil erosion control and stormwater management plan,” commonly referred to as the erosion control and stormwater management plan, or “ESM plan” means a document describing methods for controlling soil erosion and managing stormwater in accordance with the requirements adopted pursuant to the VESMA. The ESM plan may consist of aspects of the erosion and sediment control plan and the stormwater management plan as each is described in this ordinance. “Stabilized” means land that has been treated or protected to withstand normal exposure to natural forces without incurring erosion damage. “State” means the Commonwealth of Virginia. “State application” or “application” means the standard form or forms, including any additions, revisions, or modifications to the forms, approved by the Administrator and the Department for applying for a permit. “State Water Control Law” means Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia. “State waters” means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands. “Steep slope” means a slope greater than 3:1, or thirty-three and one-third (33.3) percent. “Storm sewer inlet” or “storm drainage inlet” means a structure through which stormwater is introduced into an underground conveyance system. “Stormwater,” for the purposes of the VESMA, means precipitation that is discharged across the land surface or through conveyances to one or more waterways and that may include stormwater runoff, snow melt runoff, and surface runoff and drainage. “Stormwater conveyance system” means a combination of drainage components that are used to convey stormwater discharge, either within or downstream of the land-disturbing activity. This includes: 1. “Manmade stormwater conveyance system” means a pipe, ditch, vegetated swale, or other stormwater conveyance system constructed by man except for restored stormwater conveyance systems; 12 2. “Natural stormwater conveyance system” means the main channel of a natural stream and the flood-prone area adjacent to the main channel; or 3. “Restored stormwater conveyance system” means a stormwater conveyance system that has been designed and constructed using natural channel design concepts. Restored stormwater conveyance systems include the main channel and the flood-prone area adjacent to the main channel. “Stormwater detention” means the process of temporarily impounding runoff and discharging it through a hydraulic outlet structure to a downstream conveyance system. “Stormwater management facility” means a control measure that controls stormwater runoff and changes the characteristics of that runoff including the quantity and quality, the period of release, or the velocity of flow. “Stormwater management plan” means a document containing material describing methods for complying with the requirements of the VESMP. “Stormwater Pollution Prevention Plan” or “SWPPP” means a document that is prepared in accordance with good engineering practices and that identifies potential sources of pollutants that may reasonably be expected to affect the quality of stormwater discharges. A SWPPP required under the VESMP for construction activities shall identify and require the implementation of control measures and shall include or incorporate by reference an approved erosion and sediment control plan, an approved stormwater management plan, and a pollution prevention plan. “Subdivision” means the same as defined in § 15.2-2201 of the Code of Virginia. “Surface waters” means: 1. All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide; 2. All interstate waters, including interstate wetlands; 3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds for which the use, degradation, or destruction would affect or could affect interstate or foreign commerce including any such waters: a. That are or could be used by interstate or foreign travelers for recreational or other purposes; b. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or 13 c. That are used or could be used for industrial purposes by industries in interstate commerce; 4. All impoundments of waters otherwise defined as surface waters under this definition; 5. Tributaries of waters identified in subdivisions 1 through 4 of this definition; 6. The territorial sea; and 7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in subdivisions 1 through 6 of this definition. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA and the law, are not surface waters. Surface waters do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other agency, for the purposes of the CWA, the final authority regarding the CWA jurisdiction remains with the EPA. “SWM” means stormwater management. “Temporary vehicular stream crossing” means a temporary non-erodible structural span installed across a flowing watercourse for use by construction traffic. Structures may include bridges, round pipes, or pipe arches constructed on or through non-erodible material. “Ten-year storm” means a storm that can produce rainfall expected to be equaled or exceeded on the average of once in 10 years. It may also be expressed as an exceedance probability with a 10% chance of being equaled or exceeded in any given year. “Total maximum daily load” or “TMDL” means the sum of the individual wasteload allocations for point sources, load allocations (LAs) for nonpoint sources, natural background loading, and a margin of safety. TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure. The TMDL process provides for point versus nonpoint source trade- offs. “Town” means an incorporated town. “Two-year storm” means a storm that can produce rainfall expected to be equaled or exceeded on the average of once in two years. It may also be expressed as an exceedance probability with a 50% chance of being equaled or exceeded in any given year. “Virginia Erosion and Stormwater Management Act” or “VESMA” means Article 2.3 (§ 62.1- 44.15:24 et seq.) of Chapter 3.1, State Water Control Law, of Title 62.1 of the Code of Virginia. “Virginia Erosion and Stormwater Management Program” or “VESMP” means a program established by the VESMP authority for the effective control of soil erosion and sediment deposition and the management of the quality and quantity of runoff resulting from land-disturbing 14 activities to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources. The program shall include such items as local ordinances, rules, requirements for permits and land-disturbance approvals, policies and guidelines, technical materials, and requirements for plan review, inspection, and enforcement consistent with the requirements of the VESMA. “Virginia Erosion and Stormwater Management Program Authority” or “VESMP Authority” means the County of Roanoke as approved by the Department to operate the VESMP. “Virginia Pollutant Discharge Elimination System (VPDES) permit” or “VPDES permit” means a document issued by the department pursuant to the State Water Control Law authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters. “Virginia Stormwater BMP Clearinghouse” means a website collection that contains detailed design standards and specifications for control measures that may be used in Virginia to comply with the requirements of the VESMA and associated regulations. “Virginia Stormwater Management Handbook” means a book collection of pertinent information that provides general guidance for compliance with the VESMA and associated regulations and is developed by the Department with advice from a stakeholder advisory committee. “Wasteload allocation” or “wasteload” means the portion of a receiving surface water’s loading or assimilative capacity allocated to one of its existing or future point sources of pollution. Wasteload allocation is a type of water quality-based effluent limitation. “Water quality technical criteria” means standards set forth in regulations adopted pursuant to the VESMA that establish minimum design criteria for measures to control nonpoint source pollution. “Water quantity technical criteria” means standards set forth in regulations adopted pursuant to the VESMA that establish minimum design criteria for measures to control localized flooding and stream channel erosion. “Watershed” means a defined land area drained by a river or stream, karst system, or system of connecting rivers or streams such that all surface water within the area flows through a single outlet. In karst areas, the karst feature to which water drains may be considered the single outlet for the watershed. “Wetlands” means those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. 15 Section 8.1-3 ADMINISTRATION OF CHAPTER IN CONJUNCTION WITH SUBDIVISION AND ZONING ORDINANCES. This chapter shall be administered, where applicable, in conjunction with the County’s subdivision and zoning ordinances wherein such apply to the development and subdivision of land within the County or where such apply to development on previously subdivided land within the County. Section 8.1-4 VIRGINIA EROSION AND STORMWATER MANAGEMENT PROGRAM ESTABLISHED. Pursuant to § 62.1-44.15:27 of the Code of Virginia, the County of Roanoke hereby establishes a Virginia Erosion and Stormwater Management Program for land-disturbing activities and adopts the Virginia Erosion and Stormwater Management Regulation that specifies standards and specifications for VESMPs promulgated by the State Water Control Board for the purposes set out in Section 1.1 of this Ordinance. The County of Roanoke hereby designates the County Administrator or his or her designee as the Administrator of the Virginia Erosion and Stormwater Management Program established by this Ordinance. Section 8.1-5 REGULATED LAND DISTURBING ACTIVITIES. A. Land-disturbing activities that meet one of the criteria below are regulated as follows: 1. Land-disturbing activity that disturbs 2,500 square feet or more, is less than one acre, and is subject to criteria defined in Article 2 (9VAC25-875-540 et seq.) and Article 3 (9VAC25-875-570 et seq.) of Part V unless Article 4 (9VAC25-875-670 et seq) of Part V of the Regulation is applicable, as determined in accordance with 9VAC25-875-480 and 9VAC25-875-490. 2. Land-disturbing activity that disturbs less than one acre, but is part of a larger common plan of development or sale that disturbs one acre or more, is subject to criteria defined in Article 2 (9VAC25-875-540 et seq.) and Article 3 (9VAC25-875-570 et seq.) of Part V unless Article 4 (9VAC25-875-670 et seq) of Part V of the Regulation is applicable, as determined in accordance with 9VAC25-875-480 and 9VAC25-875-490. 3. Land-disturbing activity that disturbs one acre or more is subject to criteria defined in Article 2 (9VAC25-875-540 et seq.) and Article 3 (9VAC25-875-570 et seq.) of Part V unless Article 4 (9VAC25-875-670 et seq.) of Part V is applicable, as determined in accordance with 9VAC25-875-480 and 9VAC25-875-490. B. Land-disturbing activities exempt per 9VAC25-875-90 are not required to comply with the requirements of the VESMA unless otherwise required by federal law. Section 8.1-6 REVIEW AND APPROVAL OF PLANS; PROHIBITIONS. A. A person who wishes to conduct a land-disturbing activity in the County of Roanoke shall submit a soil erosion control and stormwater management plan (ESM) that is consistent 16 with the requirements of the Virginia Erosion and Stormwater Management Act (VESMA). Activities not required to comply with the VESMA are defined in 9VAC25-875-90. B. A person shall not conduct any land-disturbing activity in the County of Roanoke until: 1. Such person submits an application that includes a permit registration statement, if required, a soil erosion control and stormwater management plan or an executed agreement in lieu of a plan, if required, to the County of Roanoke; 2. Such person submits the name of the individual who will be assisting them in carrying out the activity and this individual shall hold a Responsible Land Disturber certificate pursuant to § 62.1-44.15:30 of the Code of Virginia. Failure to provide the name of an individual holding a Responsible Land Disturber certificate prior to engaging in land- disturbing activities may result in revocation of the land-disturbance approval and shall subject the owner to the penalties provided by the VESMA; and 3. The County of Roanoke has issued its land-disturbance approval. C. The County of Roanoke may require changes to an approved ESM plan in the following cases: 1. Where inspection has revealed that the plan is inadequate to satisfy applicable regulations or ordinances; or 2. Where the owner finds that because of changed circumstances or for other reasons the plan cannot be effectively carried out, and proposed amendments to the plan, consistent with the requirements of the Act, are agreed to by the VESMP authority and the owner. D. To prevent further erosion, the County of Roanoke may require approval of an erosion and sediment control plan and a stormwater management plan for any land it identifies as an erosion impact area, pursuant to § 62.1-44.15:34 of the Code of Virginia. E. As a part of the land-disturbance approval process, the County of Roanoke may require the applicant to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the County of Roanoke, to ensure that it can take measures at the applicant’s expense should he/she fail, after proper notice, within the time specified to comply with the conditions it imposes as a result of his/her land-disturbing activity. If the County of Roanoke takes such action upon such failure by the applicant, it may collect from the applicant the difference should the amount of the reasonable cost of such action exceed the amount of the security held. If the applicant fulfills the VESMP authority’s conditions, the County of Roanoke will refund to the applicant or terminate, as applicable, such bond, cash escrow, letter of credit, or other legal arrangement, or the unexpended or unobligated portion thereof. F. Variances and Exceptions. 17 1. The applicant may request the County of Roanoke to grant a variance to waive or modify any of the erosion and sediment control requirements of Article 2 (9VAC25- 875-540 et seq.) of Part V (9VAC25-875-470 et seq.) that are deemed inappropriate or too restrictive for site conditions under these conditions: a. At the time of plan submission, an applicant may request a variance to become part of the approved erosion and sediment control plan. The applicant shall explain the reasons for requesting variances in writing. Specific variances which are allowed by the County of Roanoke shall be documented in the plan. b. During construction, the person responsible for implementing the approved plan may request a variance in writing from the County of Roanoke. If the County of Roanoke does not approve a variance in writing within 10 days of receipt of the request, the request shall be disapproved. Following disapproval, the applicant may resubmit a variance request with additional documentation. 2. The applicant may request the County of Roanoke to grant an exception to the provisions of Article 3 (9VAC25-875-570 et seq.) of Part V. An exception may be granted by the County of Roanoke provided that (i) the exception is the minimum necessary to afford relief, (ii) reasonable and appropriate conditions shall be imposed as necessary upon any exception granted so that the intent of the VESMA is preserved, (iii) granting the exception will not confer any special privileges that are denied in other similar circumstances, and (iv) exception requests are not based upon conditions or circumstances that are self-imposed or self-created. 3. Economic hardship alone is not a sufficient reason to grant a variance or an exception from the requirements of this chapter. 4. Under no circumstance shall the applicant be granted an exception (i) to the requirement that the land-disturbing activity obtain required permits, or (ii) for the use of a BMP not found through the Virginia Stormwater BMP Clearinghouse, except as allowed under Article 4 (9VAC25-875-670 et seq.) of Part V of this chapter. 5. No exception to, or waiver of, post-development nonpoint source nutrient runoff compliance requirements shall be granted unless offsite options have been considered and found not available in accordance with subsection D of § 62.1-44.15:35 of the Code of Virginia. 6. A record of all exceptions granted shall be maintained by the County of Roanoke in accordance with 9VAC25-875-180. Section 8.1-7 STORMWATER PERMIT REQUIREMENT; EXEMPTIONS. A. Except as provided herein, no person may engage in any land-disturbing activity until the County of Roanoke has granted land disturbance approval in accordance with the provisions of this ordinance and the Regulation. 18 B. Notwithstanding any other provisions of this ordinance, the following activities are not required to comply with the requirements of this ordinance unless otherwise required by federal law: 1. Minor land-disturbing activities, including home gardens and individual home landscaping, repairs, and maintenance work; 2. Installation, maintenance, or repair of any individual service connection; 3. Installation, maintenance, or repair of any underground utility line when such activity occurs on an existing hard surfaced road, street, or sidewalk, provided the land- disturbing activity is confined to the area of the road, street, or sidewalk that is hard surfaced; 4. Installation, maintenance, or repair of any septic tank line or drainage field unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system; 5. Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted pursuant to Title 45.2 of the Code of Virginia; 6. Clearing of lands specifically for bona fide agricultural purposes; the management, tilling, planting, or harvesting of agricultural, horticultural, or forest crops; livestock feedlot operations; agricultural engineering operations, including construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; or as additionally set forth by the Board in regulations. However, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq. of the Code of Virginia) or is converted to bona fide agricultural or improved pasture use as described in subsection B of § 10.1-1163 of the Code of Virginia; 7. Installation of fence and signposts or telephone and electric poles and other kinds of posts or poles; 8. Shoreline erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by local wetlands boards, the Virginia Marine Resources Commission, or the United States Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to the VESMA and the regulations adopted pursuant thereto; 9. Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company; 19 10. Land-disturbing activities in response to a public emergency where the related work requires immediate authorization to avoid imminent endangerment to human health or the environment. In such situations, the person conducting the land-disturbing activity shall advise the County of Roanoke of the disturbance within seven days of commencing the land-disturbing activity and shall comply with the administrative requirements of subsection A within 30 days of commencing the land-disturbing activity; and 11. Discharges to a sanitary sewer or a combined sewer system that are not from a land- disturbing activity. C. Notwithstanding this ordinance and in accordance with the Virginia Erosion and Stormwater Management Act, Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia, the following activities are required to comply with the soil erosion control requirements but are not required to comply with the water quantity and water quality technical criteria, unless otherwise required by federal law: 1. Activities under a state or federal reclamation program to return an abandoned property to an agricultural or open land use; 2. Routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original construction of the project. The paving of an existing road with a compacted or impervious surface and reestablishment of existing associated ditches and shoulders shall be deemed routine maintenance if performed in accordance with this subsection; and 3. Discharges from a land-disturbing activity to a sanitary sewer or a combined sewer system. Section 8.1-8 STORMWATER POLLUTION PREVENTION PLAN; CONTENTS OF PLANS. A. A stormwater pollution prevention plan shall include, but not be limited to, an approved erosion and sediment control plan, an approved stormwater management plan, a pollution prevention plan for regulated land-disturbing activities, and a description of any additional control measures necessary to address a TMDL pursuant to subsection D of this section. B. A soil erosion control and stormwater management (ESM) plan consistent with the requirements of the Virginia Erosion and Stormwater Management Act (VESMA) and regulations must be designed and submitted to and approved by the County of Roanoke prior to land disturbance in accordance with the VESMA, this ordinance, and attendant regulations. This plan shall be implemented during construction as approved or modified by the County of Roanoke. C. A stormwater pollution prevention plan that identifies potential sources of pollutants that may reasonably be expected to affect the quality of stormwater discharges from the 20 construction site and describe control measures that will be used to minimize pollutants in stormwater discharges from the construction site must be developed before land disturbance commences. D. In addition to the other requirements of this section, if a specific wasteload allocation for a pollutant has been established in an approved TMDL and is assigned to stormwater discharges from a construction activity, additional control measures must be identified and implemented by the operator so that discharges are consistent with the assumptions and requirements of the wasteload allocation. E. The stormwater pollution prevention plan (SWPPP) must address the following requirements as specified in 40 CFR 450.21, to the extent otherwise required by state law or regulations and any applicable requirements of a state permit: 1. Control stormwater volume and velocity within the site to minimize soil erosion; 2. Control stormwater discharges, including both peak flow rates and total stormwater volume, to minimize erosion at outlets and to minimize downstream channel and stream bank erosion; 3. Minimize the amount of soil exposed during construction activity; 4. Minimize the disturbance of steep slopes; 5. Minimize sediment discharges from the site. The design, installation, and maintenance of erosion and sediment controls must address factors such as the amount, frequency, intensity and duration of precipitation, the nature of resulting stormwater runoff, and soil characteristics, including the range of soil particle sizes expected to be present on the site; 6. Provide and maintain natural buffers around surface waters, direct stormwater to vegetated areas to increase sediment removal and maximize stormwater infiltration, unless infeasible; 7. Minimize soil compaction and, unless infeasible, preserve topsoil; 8. Stabilization of disturbed areas must, at a minimum, be initiated immediately whenever any clearing, grading, excavating, or other earth disturbing activities have permanently ceased on any portion of the site, or temporarily ceased on any portion of the site and will not resume for a period exceeding 14 calendar days. Stabilization must be completed within a time frame determined by the VESMP authority. In arid, semiarid, and drought-stricken areas where initiating vegetative stabilization measures immediately is infeasible, alternative stabilization measures must be employed as specified by the County of Roanoke; and 21 9. Utilize outlet structures that withdraw water from the surface, unless infeasible, when discharging from basins and impoundments. F. The SWPPP shall be amended whenever there is a change in design, construction, operation, or maintenance that has a significant effect on the discharge of pollutants to state waters and that has not been previously addressed in the SWPPP. The SWPPP must be maintained at a central location onsite. If an onsite location is unavailable, notice of the SWPPP’s location must be posted near the main entrance at the construction site. Section 8.1-9 STORMWATER MANAGEMENT PLAN; CONTENTS OF PLAN. A. A stormwater management plan shall be developed and submitted to the County of Roanoke. The stormwater management plan shall be implemented as approved or modified by the County of Roanoke and shall be developed in accordance with the following: 1. A stormwater management plan for a land-disturbing activity shall apply the stormwater management technical criteria set forth in this ordinance and Article 4 (9VAC25-875-670 et seq) of Part V of the Regulation to the entire land-disturbing activity. Individual lots in new residential, commercial, or industrial developments, including those developed under subsequent owners, shall not be considered separate land-disturbing activities. 2. A stormwater management plan shall consider all sources of surface runoff and all sources of subsurface and groundwater flows converted to surface runoff. B. A complete stormwater management plan shall include the following elements: 1. Information on the type of and location of stormwater discharges, information on the features to which stormwater is being discharged including surface waters or karst features, if present, and predevelopment and post-development drainage areas; 2. Contact information including the name, address, telephone number, and email address of the owner and the tax reference number and parcel number of the property or properties affected; 3. A narrative that includes a description of current site conditions and final site conditions or if allowed by the VESMP authority, the information provided and documented during the review process that addresses the current and final site conditions; 4. A general description of the proposed stormwater management facilities and the mechanism through which the facilities will be operated and maintained after construction is complete; 5. Information on the proposed stormwater management facilities, including (i) detailed narrative on the conversion to a long-term stormwater management facility if the facility was used as a temporary ESC measure; (ii) the type of facilities; (iii) location, 22 including geographic coordinates; (iv) acres treated; and (v) the surface waters or karst features into which the facility will discharge; 6. Hydrologic and hydraulic computations, including runoff characteristics; 7. Documentation and calculations verifying compliance with the water quality and quantity requirements of these regulations; 8. A map of the site that depicts the topography of the site and includes: a. All contributing drainage areas; b. Existing streams, ponds, culverts, ditches, wetlands, other water bodies, and floodplains; c. Soil types, geologic formations if karst features are present in the area, forest cover, and other vegetative areas; d. Current land use including existing structures, roads, and locations of known utilities and easements; e. Sufficient information on adjoining parcels to assess the impacts of stormwater from the site on these parcels and to assess the impacts of stormwater from the adjoining parcels on the site; f. The limits of clearing and grading, and the proposed drainage patterns on the site; g. Proposed buildings, roads, parking areas, utilities, and stormwater management facilities; and h. Proposed land use with tabulation of the percentage of surface area to be adapted to various uses, including planned locations of utilities, roads, and easements; 9. If an operator intends to meet the requirements established in 9VAC25-875-580 or 9VAC25-875-600 using off-site compliance options, where applicable, then a letter of availability from the off-site provider must be included; and 10. If the County of Roanoke requires payment of a fee with the stormwater management plan submission, the fee and the required fee form in accordance with Section 5-8 of this ordinance must have been submitted. C. All final plan elements, specifications, or calculations of the stormwater management plans whose preparation requires a license under Chapter 4 (§ 54.1-400 et seq.) or Chapter 22 (§ 54.1- 2200 et seq.) of Title 54.1 of the Code of Virginia shall be appropriately signed and sealed by a professional who is licensed to engage in practice in the Commonwealth of 23 Virginia. Nothing in this subsection shall authorize any person to engage in practice outside his area of professional competence. Section 8.1-10 POLLUTION PREVENTION PLAN; CONTENTS OF PLANS. A. A plan for implementing pollution prevention measures during construction activities shall be developed, implemented, and updated as necessary. The pollution prevention plan shall detail the design, installation, implementation, and maintenance of effective pollution prevention measures as specified in 40 CFR 450.21(c) to address dewatering requirements and in 40 CFR 450.21(d) to minimize the discharge of pollutants. At a minimum, such measures must be designed, installed, implemented, and maintained to: 1. Minimize the discharge of pollutants from equipment and vehicle washing, wheel wash water, and other wash waters. Wash waters must be treated in a sediment basin or alternative control that provides equivalent or better treatment prior to discharge; 2. Minimize the exposure of building materials, building products, construction wastes, trash, landscape materials, fertilizers, pesticides, herbicides, detergents, sanitary waste, and other materials present on the site to precipitation and to stormwater; and 3. Minimize the discharge of pollutants from spills and leaks and implement chemical spill and leak prevention and response procedures. B. The pollution prevention plan shall include effective best management practices to prohibit the following discharges in accordance with 40 CFR 450.21(e): 1. Wastewater from washout of concrete, unless managed by an appropriate control; 2. Wastewater from washout and cleanout of stucco, paint, form release oils, curing compounds, and other construction materials; 3. Fuels, oils, or other pollutants used in vehicle and equipment operation and maintenance; and 4. Soaps or solvents used in vehicle and equipment washing. C. The pollution prevention plan shall include appropriate controls for the discharge from dewatering activities, including discharges from dewatering trenches in accordance with 40 CFR 450.21(c). Section 8.1-11 EROSION AND SEDIMENT CONTROL PLAN; CONTENTS OF PLANS A. An erosion and sediment control plan, which is a component of the ESM plan, shall be filed for a development and the buildings constructed within, regardless of the phasing of construction. The erosion and sediment control plan shall contain all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the erosion and sediment control criteria, techniques, and methods (i.e., the minimum 24 standards) in 9VAC25-875-560. The erosion and sediment control plan may include: 1. Appropriate maps; 2. An appropriate soil and water plan inventory and management information with needed interpretations; and 3. A record of decisions contributing to conservation treatment. B. The person responsible for carrying out the plan shall provide the name of an individual holding a Responsible Land Disturber (RLD) certificate who will oversee and be responsible for carrying out the land-disturbing activity to the County of Roanoke. C. If individual lots or sections in a residential development are being developed by different property owners, all land-disturbing activities related to the building construction shall be covered by an erosion and sediment control plan or an "Agreement in Lieu of a Plan" signed by the property owners. Section 8.1-12 TECHNICAL CRITERIA FOR REGULATED LAND DISTURBING ACTIVITIES. A. To protect the quality and quantity of state waters from the potential harm of unmanaged stormwater runoff resulting from land-disturbing activities, the County of Roanoke hereby adopts the technical criteria for regulated land-disturbing activities set forth in Part V of 9VAC25-875 expressly to include 9VAC25-875-580 (water quality design criteria requirements); 9VAC25-875-590 (water quality compliance); 9VAC25-875-600 (water quantity); 9VAC25-875-610 (offsite compliance options); 9VAC25-875-620 (design storms and hydrologic methods); 9VAC25-875-630 (stormwater harvesting); 9VAC25- 875-640 (linear development projects); 9VAC25-875-650 (stormwater management impoundment structures or facilities), the Virginia Stormwater Management Handbook, as amended, and those more stringent local criteria which the County Board of Supervisors may adopt by resolution and incorporate into the manual of regulations and policies entitled “Stormwater Management Design Manual” and “Design and Construction Standards Manual,” which shall apply to all land-disturbing activities regulated pursuant to this ordinance, except as expressly set forth in Subsection B of this Section. B. Steep Slopes; Positive Drainage. 1. All development that requires an erosion and sediment control plan or an Agreement in Lieu of a Plan shall address the following requirements: a. If the grade of a site is more than thirty-three and one-third (33.3) percent, comply with the International Building Code, Chapter 18, as amended, for foundation clearances from slopes. b. Cut slopes or fill slopes shall not be greater than 2:1 (horizontal: vertical), unless a geotechnical report is provided for the proposed slopes. 25 c. Cut slopes or fill slopes shall not be greater than twenty-five (25) vertical feet in height, unless a geotechnical report is provided for the proposed slopes. Cut slopes or fill slopes less than or equal to 3:1 (horizontal: vertical) may exceed twenty-five (25) vertical feet in height and shall not require a geotechnical report. d. For any cut slopes or fill slopes greater than or equal to 2:1 (horizontal: vertical) or greater than or equal to twenty-five (25) vertical feet in height with a slope greater than 3:1 (horizontal: vertical), an as-built plan showing that the finished geometry, based on a field survey performed by a licensed surveyor, is in substantial conformity with the design shall be provided to the County of Roanoke. e. Fill materials, compaction methods, and density specifications shall be indicated on the plan. Fill areas intended to support structures shall also be indicated on the plan. 2. Any plan for a new subdivision shall show proposed lot grades to ensure positive drainage away from all permanent structures. C. Stream buffers. 1. Except as provided in this section, each regulated land-disturbing activity shall provide for stream buffers for the purposes of retarding runoff, preventing stream bank erosion, and filtering nonpoint source pollution from runoff. 2. The stream buffer on existing undeveloped land shall extend a minimum of 25 feet on each side of any perennial stream or contiguous wetlands, measured horizontally from the edge of the contiguous wetlands or from the ordinary high-water mark if no wetlands exist. 3. The stream buffer on previously developed land shall either meet the requirements of (ii) above or extend from the side of any perennial stream or contiguous wetlands, measured horizontally from the edge of the contiguous wetlands or from the ordinary high-water mark if no wetlands exist to the edge of existing paved surfaces, structures, or other hardscape, whichever is less. 4. Each stream buffer shall be retained in as natural a condition as possible. Natural ground contours and native vegetation shall be preserved to the fullest possible extent. 5. The following types of improvements and activities shall not be required to retain, establish, or manage a stream buffer, provided that the requirements of this section are satisfied: 1. The construction, installation, operation, and maintenance of electric, gas and telephone transmission lines, railroads, and activities of the Virginia Department of Transportation and their appurtenant structures, which are accomplished in compliance with § 62.1-44.15:27 (Virginia Programs for Erosion Control and 26 Stormwater Management) or an erosion and sediment control plan approved by the Board. 2. The construction, installation, and maintenance by public agencies of storm drainage, water, and sewer lines. 3. The construction and installation of water and sewer lines constructed by private interests for dedication to public agencies, if all the following are satisfied: i. To the extent practical, as determined by the Administrator, the location of the water or sewer lines, shall be outside of all stream buffer areas. ii. No more land shall be disturbed than is necessary to construct, install and maintain the water or sewer lines. iii. All construction and installation of the water or sewer lines shall comply with all applicable federal, state, and local requirements and permits and be conducted in a manner that protects water quality. 6. The following types of structures, control measures, and activities shall be allowed in a stream buffer, provided that the requirements of this section are satisfied: 1. Temporary erosion and sediment control measures, provided that to the extent practical, as determined by the Administrator, the control measures shall be located outside of the stream buffer and disturbance impacts are minimized. Upon removal of the temporary measures, grading and plantings shall be provided to reestablish the stream buffer by restoring pre-development grades and providing appropriate plantings. 2. Water-dependent facilities, water wells, passive recreation access, such as pedestrian trails and multi-use paths, historic preservation, and archaeological activities provided that all applicable federal, state, and local permits are obtained. 3. Storm drainage facilities necessary to drain to the stream, and stormwater management best management practices, provided that the disturbance to the buffer is minimized. 4. Roads, streets, and driveways if disturbance to the natural stream channel and buffer is limited to the minimum reasonably required to develop the site. Whenever practical, roads, streets, and driveways shall not be constructed parallel to a stream within the buffer. 5. Selective removal of invasive plants and reestablishment of vegetative buffer using native plants. 6. Stream drainage improvements that comply with all federal and state permitting 27 requirements. Where channel improvements are made, stream buffers shall be reestablished on both sides of the improved channel. There shall be no stream buffer requirements where streams are replaced with storm drainage pipes. 7. Stream buffers shall be indicated on erosion and sediment control plans and plot plans, and they shall be physically marked and protected in the field with safety fencing or other appropriate means prior to the commencement of clearing or grading. 8. Any lot that was platted prior to July 27, 2021, and any land disturbance with an erosion and sediment control plan that was submitted to the County for review prior to July 27, 2021, are exempt from the requirements to protect and establish stream buffers. D. Nothing in this section shall preclude an operator from constructing to a more stringent standard at his/her discretion. Section 8.1-13 SPECIAL PROVISIONS FOR LAND-DISTURBING ACTIVITIES THAT DISTURB LESS THAN 10,000 SQUARE FEET. A. Land-disturbing activity of less than 2,500 square feet on individual lots in a residential development shall not be considered exempt from the provisions of this chapter, if the total land-disturbing activity in the development is equal to or greater than 2,500 square feet. B. Land-disturbing activities shall meet all the requirements of this chapter, except that the technical provisions contained in 9VAC25-875-560 shall not apply to land disturbing activities that meet the requirements of this section. These include: 1. The adequacy of downstream channels and pipes are not required to be analyzed and verified. 2. No stormwater management measures to address any flow rate capacity or velocity requirements for downstream natural or man-made channels shall be required. C. An agreement in lieu of a plan may, at the discretion of the County of Roanoke, be substituted for an erosion and sediment control plan if executed by the County of Roanoke. All the requirements of section 5.1 shall apply. This provision expands the use of an agreement in lieu of a plan to all land-disturbing activities that disturb less than ten thousand 10,000 square feet. Additional requirements include: 1. Where the land-disturbing activity from the construction of a single-family residence results in less than five thousand (5,000) square feet of disturbed area, an “agreement in lieu of a plan” shall be accompanied by a plot plan that meets the County building permit plot plan requirements. 2. Where the land-disturbing activity from the construction of a single-family residence results in 5,000 square feet or more of disturbed area, an “agreement in lieu of a plan” shall be accompanied by a plot plan that meets the County building permit plot plan requirements, prepared by a responsible land disturber, Virginia professional engineer, 28 land surveyor, landscape architect, architect, or professional soil scientist. A responsible land disturber must also be provided and identified. 3. The County of Roanoke may require additional information or may decline to execute an agreement in lieu of a plan and may require an erosion and sediment control plan in instances where, in the County’s opinion, it is necessary to properly protect downstream properties or the environment. Section 8.1-14 LONG-TERM MAINTENANCE OF PERMANENT STORMWATER FACILITIES. A. The operator shall submit a construction record drawing for permanent stormwater management facilities to the County of Roanoke in accordance with 9VAC25-875-535. The record drawing shall contain a statement signed by a professional registered in the Commonwealth of Virginia pursuant to Chapter 4 of Title 54.1 of the Code of Virginia, stating that to the best of their knowledge, the construction record drawing shows all adjustments and revisions to the Stormwater Management Plan made during construction, and it shall serve as a permanent record of the actual location of all constructed elements. B. The operator shall submit a “Stormwater Facility Maintenance Agreement” that provides for the long-term responsibility and maintenance of stormwater management facilities and other techniques specified to manage the quality and quantity of runoff. Such requirements shall be set forth in an instrument recorded in the local land records prior to general permit termination or earlier as required by the County of Roanoke and shall at a minimum: 1. Be submitted to the County of Roanoke for review and approval prior to the approval of the stormwater management plan; 2. Be stated to run with the land; 3. Provide for all necessary access to the property for purposes of maintenance and regulatory inspections; 4. Provide for inspections and maintenance and the submission of inspection and maintenance reports to the County of Roanoke and 5. Be enforceable by all appropriate governmental parties. C. At the discretion of the County of Roanoke such recorded instruments need not be required for stormwater management facilities designed to treat stormwater runoff primarily from an individual residential lot on which they are located, provided it is demonstrated to the satisfaction of the County of Roanoke that future maintenance for those facilities will be addressed through an enforceable mechanism at the discretion of the County of Roanoke. 29 Section 8.1-15 MONITORING AND INSPECTIONS. A. The land-disturbing activity is subject to monitoring and inspections by the County of Roanoke. These inspections will be used to determine if there is: 1. Compliance with the approved erosion and sediment control plan; 2. Compliance with the approved stormwater management plan; 3. Development, updating, and implementation of a pollution prevention plan; and 4. Development and implementation of any additional control measures necessary to address a TMDL. B. The land-disturbing activity is subject to periodic and documented inspections by the County of Roanoke in accordance with its Department-approved alternative inspection program. C. Permanent stormwater management facilities are subject to periodic and documented inspections by the County of Roanoke to determine if such facilities are adequately maintained and functioning, as designed. D. The County of Roanoke may utilize the inspection reports of the owner of a stormwater management facility as part of an inspection program established in subsection B of this section if the inspection is conducted by a person who is licensed as a professional engineer, architect, landscape architect, or land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1; a person who works under the direction and oversight of the licensed professional engineer, architect, landscape architect, or land surveyor; or a person who holds an appropriate certificate of competence from the Department. E. Stormwater management facilities designed to treat stormwater runoff primarily from an individual residential lot on which they are located and for which a recorded instrument is not required pursuant to 9VAC25-875-130, may be subject to periodic inspections by the County of Roanoke, or the County of Roanoke may conduct homeowner outreach and education or employ other methods targeted at promoting the long-term maintenance of such facilities. Section 8.1-16 HEARINGS. A. Any applicant or operator, or person subject to the requirements of this ordinance, aggrieved by any action of the County of Roanoke taken without a formal hearing, or by inaction of the County of Roanoke, may demand in writing a formal hearing by the County Administrator or his or her designee, provided a petition requesting such hearing is filed with the Administrator within 30 days after notice of such action is given by the Administrator. 30 B. The hearings held under this Section shall be conducted by the County Administrator or his or her designee on behalf of the County of Roanoke Board of Supervisors at any time and place authorized by the County Administrator or his or her designee, and such hearings shall be held in a manner consistent with local hearing procedures. In the event the County Administrator does not designate another individual to be the Administrator of this Ordinance, then the County Administrator shall designate someone other than the County Administrator to conduct the hearings held under this Section. C. A verbatim record of the proceedings of such hearings shall be taken and filed with the Clerk to the County of Roanoke Board of Supervisors. Depositions may be taken and read as in actions at law. D. The County Administrator or his or her designee shall have power to issue subpoenas and subpoenas duces tecum, and at the request of any party shall issue such subpoenas. The failure of a witness without legal excuse to appear or to testify or to produce documents shall be acted upon by the County Administrator or his or her designee, whose action may include the procurement of an order of enforcement from the circuit court. Witnesses who are subpoenaed shall receive the same fees and reimbursement for mileage as in civil actions. E. During the review, the County Administrator or his or her designee shall consider evidence presented by all parties. After considering the evidence, the County Administrator’s (or his or her designee’s) decision shall be final. Section 8.1-17 APPEALS. Final decisions of the County Administrator or his or her designee, under this chapter, shall be conducted in accordance with local appeal procedures and shall be subject to judicial review by the Roanoke County Circuit Court, provided an appeal is filed within thirty (30) days from the date of any written decision adversely affecting the rights, duties, or privileges of any permit applicant, permittee, or person subject to any enforcement action under this chapter. Section 8.1-18 RIGHT OF ENTRY. A. Pursuant to all applicable law, the County of Roanoke or any duly authorized agent thereof, bearing proper credentials and identification, may, at reasonable times and under reasonable circumstances, enter any establishment or upon any property, public or private, which has a permit or a maintenance agreement, for the purpose of obtaining information or conducting surveys or investigations necessary in the enforcement of the provisions of this ordinance. B. If the Administrator has cause to believe an activity regulated under this ordinance is occurring without a permit, or if the person in charge of the property refuses to allow the Administrator to enter in accordance with subsection (A), then the Administrator may present sworn testimony to a magistrate or court of competent jurisdiction and request the issuance of an inspection warrant to enter the property for the purpose of making such 31 inspection and investigation. The Administrator shall make a reasonable effort to obtain consent from the owner or person in charge of the property prior to seeking the issuance of an inspection warrant under this section. C. Pursuant to all applicable law, and in accordance with a performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement, the County of Roanoke or any duly authorized agent thereof, bearing proper credentials and identification, may, at reasonable times and under reasonable circumstances, also enter any establishment or upon any property, public or private, for the purpose of initiating or maintaining appropriate actions that are required by conditions imposed by the County of Roanoke on a land-disturbing activity when an owner, after proper notice, has failed to take acceptable action within the time specified. Section 8.1-19 ENFORCEMENT. A. If the Administrator determines that there is a failure to comply with the land disturbance approval or determines there is an unauthorized discharge, notice shall be served upon the operator or person responsible for carrying out the conditions of the land disturbance approval by any of the following: verbal warnings and inspection reports, notices of corrective action, consent special orders, and notices to comply. Written notices shall be served by registered or certified mail to the address specified in the application or by delivery at the site of the development activities to the agent or employee supervising such activities. 1. The notice shall specify the measures needed to comply with the conditions of the land disturbance approval and shall specify the time within which such measures shall be completed. Upon failure to comply within the time specified, a stop work order may be issued in accordance with Subsection 2 or the permit may be revoked by the Administrator. 2. If an operator or person responsible for carrying out the conditions of the land- disturbance approval fails to comply with a notice issued in accordance with this Section within the time specified, the Administrator may issue a stop work order requiring the owner, operator, person responsible for carrying out an approved plan, or the person conducting the land-disturbing activities without an approved plan or required land disturbance approval to cease all land-disturbing activities until the violation has ceased, or an approved plan and required land-disturbance approval are obtained, and specified corrective measures have been completed. Such orders shall be issued in accordance with the County of Roanoke’s enforcement procedures and this ordinance. Such orders shall become effective upon service on the person by certified mail, return receipt requested, sent to his/her address specified in the land records of the locality, or by personal delivery by an agent of the Administrator. However, if the Administrator finds that any such violation is grossly affecting or presents an imminent and substantial danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth or otherwise substantially impacting water quality, the Administrator may issue, without 32 advance notice or hearing, an emergency order directing such person to cease immediately all land-disturbing activities on the site and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof, to such person, to affirm, modify, amend, or cancel such emergency order. If a person who has been issued an order is not complying with the terms thereof, the Administrator may institute a proceeding for an injunction, mandamus, or other appropriate remedy in accordance with Subsection 5.7.C. B. In addition to any other remedy provided by this Ordinance, if the Administrator or his designee determines that there is a failure to comply with the provisions of this Ordinance, they may initiate such informal and/or formal administrative enforcement procedures in a manner that is consistent with the County of Roanoke’s enforcement procedures and this ordinance. C. Any person violating or failing, neglecting, or refusing to obey any rule, regulation, ordinance, order, approved standard or specification, or any condition of the land- disturbance approval by the Administrator may be compelled in a proceeding instituted in the Circuit Court of Roanoke County by the County of Roanoke to obey same and to comply therewith by injunction, mandamus, or other appropriate remedy. Section 8.1-20 PENALTIES, INJUNCTIONS, AND OTHER LEGAL ACTIONS. A. A civil penalty may be imposed and a summons issued for violations that include but are not limited to the following, in accordance with § 62.1-44.15:63: 1. Commencement of land disturbing activity without Construction General Permit coverage from Department (i.e., no permit registration statement submitted) ($1,000 per day); 2. Commencement of land disturbing activity without preparation of a SWPPP ($500 per day); 3. Commencement of land disturbing activity with an incomplete SWPPP, or failure to properly amend a SWPPP to reflect changes in design, construction, operation, or maintenance that has a significant effect on the discharge of pollutants to surface waters and has not been previously addressed in the SWPPP ($300 per day); 4. State permit registration statement not posted or SWPPP not available for review ($300 per day); 5. Failure to comply with SWPPP requirements ($300 per day); 6. Commencement of land-disturbing activity without an approved erosion and sediment control plan or land-disturbance approval pursuant to Section 3.2 ($1,000 per day); 7. Failure to install stormwater BMPs or erosion and sediment controls ($300 per day); 33 8. Failure to comply with the minimum standards in 9VAC25-875-560 ($300 per day); 9. Improperly installed or improperly maintained stormwater BMPs or erosion and sediment controls ($300 per day); 10. Operational deficiencies ($300 per day); 11. Failure to conduct and document required inspections ($300 per day); 12. Incomplete, improper, or missed inspections, including lack of proper signature ($300 per day); 13. Discharges not in compliance with the requirements of Section 9VAC25-880-70 of the Construction General Permit ($300 per day); 14. Failure to obey a Stop Work Order ($1,000 per day); and 15. Failure to stop work when permit is revoked ($1,000 per day). B. Each day during which the violation is found to have existed shall constitute a separate offense. However, in no event shall a series of specified violations arising from the same operative set of facts result in civil penalties which exceed a total of ten thousand dollars ($10,000.00), except that a series of violations arising from the commencement of land- disturbing activities without an approved plan for any site shall not result in civil penalties which exceed a total of ten thousand dollars ($10,000.00). The assessment of civil penalties according to this schedule shall be in lieu of criminal sanctions and shall preclude the prosecution of such violation as a misdemeanor under subsection (a) of this section. C. The Administrator may issue a summons for collection of the civil penalty and the action may be prosecuted in the appropriate court. 1. The Administrator, or his or her assignee, shall serve upon any owner or permittee in violation of this chapter, a summons notifying the owner or permittee of said violation. If unable to serve the owner or permittee in person, the County may notify by summons an owner or permittee committing or suffering the existence of a violation by certified, return receipt requested mail, of the infraction. The Roanoke County Sheriff’s Office may also deliver the summons. The summons shall contain the following information: i. The name and address of the person charged. ii. The nature of the violation and chapter provision(s) being violated. iii. The location, date, and time that the violation occurred, or was observed. iv. The amount of the civil penalty assessed for the violation. 34 v. The manner, location, and time that the civil penalty may be paid to the County. vi. The right of the recipient of the summons to elect to stand trial for the infraction. 2. The summons shall provide that any person summoned for a violation may, within five (5) days of actual receipt of the summons or, within ten (10) days from the date of mailing of the summons, elect to pay the civil penalty by making an appearance in person, or in writing by mail to the County Treasurer's Office and, by such appearance, may enter a waiver of trial, admit liability, and pay the civil penalty established for the violation charged and provide that a signature to an admission of liability shall have the same force and effect as a judgment in court; however, an admission shall not be deemed a criminal conviction for any purpose. 3. If a person charged with a violation does not elect to enter a waiver of trial and admit liability, the County shall cause the sheriff of the County to serve the summons on the person charged in the manner prescribed by law. The violation shall be tried in General District Court in the same manner and with the same right of appeal as provided for in Title 8.01 of the Code of Virginia. In any trial for a scheduled violation authorized by this section, it shall be the burden of the County to show the liability of the violator by the preponderance of the evidence. Any admission of liability or finding of liability shall not be a criminal conviction for any purpose. 4. The remedies provided for in this section are cumulative, and are not exclusive and, except as provided above, shall be in addition to any other remedies by law. 5. The owner or permittee may pay the civil penalty to the treasurer prior to the trial date, provided he also pays necessary court costs in addition to the civil penalty. 6. Within the period prescribed in (c), above, the owner or permittee, may contest the violation by presenting it to Administrator, who shall certify the contest in writing, on an appropriate form, to the General District Court. 7. Failure to pay the civil penalty, or to contest the violation, within the time period prescribed in (c), above, shall result in the immediate issuance of a stop work order and the revocation of the permit, if any. D. The owner of property which has sustained damage, or which is in imminent danger of being damaged, may apply to the Roanoke County Circuit Court to enjoin a violation or a threatened violation of Va. Code §§ 62.1-44.15:55, 62.1-44.15:56, without the necessity of showing that an adequate remedy at law does not exist. E. Civil penalty enumerated. Without limiting the remedies which may be obtained in this section, any person violating or failing, neglecting, or refusing to obey any injunction, 35 mandamus or other remedy obtained pursuant to this section shall be subject, in the discretion of the court, to a civil penalty not to exceed two thousand dollars ($2,000.00) for each violation. A civil action for such violation or failure may be brought by the County of Roanoke. Any civil penalties assessed by a court shall be paid into the treasury of the County of Roanoke, except that where the violator is the locality itself, or its agent, the court shall direct the penalty to be paid into the state treasury F. With the consent of any person who has violated or failed, neglected, or refused to obey any regulation or condition of a permit or any provision of this chapter, the County may provide for the payment of civil charges for violations in specific sums, not to exceed the limit specified in subsection (b)(2) of this section. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under subsection (b) or (e). G. In addition to the penalties provided under this chapter, any person who violates any provision of this chapter may be liable to the County of Roanoke in a civil action for damages. H. In imposing a civil penalty pursuant to this Subsection, the court may consider the degree of harm caused by the violation and the economic benefit to the violator from noncompliance. I. Any civil penalties assessed by a court because of a summons issued by the County of Roanoke shall be paid into the treasury of the County of Roanoke to be used for the purpose of minimizing, preventing, managing, or mitigating pollution of the waters of the locality and abating environmental pollution therein in such manner as the court may, by order, direct. J. Notwithstanding any other civil or equitable remedy provided by this ordinance or by law, any person who willfully or negligently violates any provision of this ordinance, any order of the Administrator, any condition of the land-disturbance approval, or any order of a court shall be guilty of a misdemeanor punishable by confinement in jail for not more than 12 months or a fine of not less than $2,500 nor more than $32,500, or both. Section 8.1-21 FEES. A. Fees to cover costs associated with implementation of a VESMP related to land disturbing activities and issuance of general permit coverage and VESMP authority permits shall be imposed in accordance with Table 1. [NOTE: Such fee attributes include the costs associated with plan review, VESMP registration statement review, permit issuance, state-coverage verification, inspections, reporting, and compliance activities associated with land-disturbing activities as well as state program oversight costs.] When a site or sites has/have been purchased for development within a previously permitted common plan of development or sale, the applicant shall be subject to fees (“total fee to be paid by applicant” column) in accordance with the disturbed acreage of their site or sites according to Table 1. 36 Table 1: Fees for permit issuance Fee type Total fee to be paid by applicant (includes both the County of Roanoke and Department portions, where applicable) Department portion of “total fee to be paid by Land-Disturbing Activity (not subject to General Permit coverage; sites within designated areas of Chesapeake Bay Act localities with land- disturbance acreage equal to or greater than 2,500 square feet and less than 1 acre) $290 $0 General/Stormwater Management Construction Activity/Land Clearing (Areas within common plans of development or sale with land $290 $81 General /Stormwater Management - Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 1 $2,700 $756 General/Stormwater Management - Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 5 $3,400 $952 General/Stormwater Management - Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 10 $4,500 $1,260 General/Stormwater Management - Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 50 $6,100 $1,708 37 General/Stormwater Management - Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than $9,600 $2,688 * If the project is completely administered by the Department, such as may be the case for a state or federal project or projects covered by individual permits, then the entire applicant fee shall be paid to the Department. B. Fees for the modification or transfer of registration statements from the general permit issued by the department shall be imposed in accordance with Table 2. If the general permit modifications result in changes to stormwater management plans that require additional review by [Locality], such reviews shall be subject to the fees set out in Table 2. The fee assessed shall be based on the total disturbed acreage of the site. In addition to the general permit modification fee, modifications resulting in an increase in total disturbed acreage shall pay the difference in the initial permit fee paid and the permit fee that would have applied for the total disturbed acreage in Table 1. Table 2: Fees for the modification or transfer of registration statements for the General Permit for Discharges of Stormwater from Construction Activities Type of Permit Fee Amount General/Stormwater Management - Clearing (Areas within common plans of development or sale with land $20 General/Stormwater Management - Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 1 and less than 5 $200 General/Stormwater Management - Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 5 acres and less $250 General/Stormwater Management - Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 10 acres and less $300 General/Stormwater Management - Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 50 acres and less $450 General/Stormwater Management - Clearing (Sites or areas within common plans of development or sale $700 C. The following annual permit maintenance shall be imposed in accordance with Table 3, 38 including fees imposed on expired permits that have been administratively continued. With respect to the general permit, these fees shall apply until the permit coverage is terminated. [NOTE: Fees specified in this Subsection go to the County of Roanoke.] Table 3: Permit Maintenance Fees Land-Disturbing Activity (not subject to General Permit coverage; sites within designated areas of Chesapeake Bay Act localities with land-disturbance acreage equal to or $50 General/Stormwater Management - Clearing (Areas within common plans of development or sale with land $50 General/Stormwater Management - Clearing (Sites or areas within common plans of development or sale with land disturbance equal to or greater than 1 acre and less than 5 $400 General/Stormwater Management - Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 5 acres and less $500 General/Stormwater Management - Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 10 acres and less $650 General/Stormwater Management - Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 50 acres and less $900 General/Stormwater Management - Clearing (Sites or areas within common plans of development or sale $1,400 General permit coverage maintenance fees shall be paid annually to the County of Roanoke by the anniversary date of general permit coverage. No permit will be reissued or automatically continued without payment of the required fee. General permit coverage maintenance fees shall be applied until a Notice of Termination is effective. D. The fees set forth in Subsections A through C of this section, shall apply to: 1. All persons seeking coverage under the general permit. 2. All permittees who request modifications to or transfers of their existing registration statement for coverage under a general permit. 39 3. Persons whose coverage under the general permit has been revoked shall apply to the Department for an Individual Permit for Discharges of Stormwater from Construction Activities. E. Permit and permit coverage maintenance fees outlined under Section 5.8 may apply to each general permit holder. F. No general permit application fees will be assessed to: 1. Permittees who request minor modifications to general permits as defined in Section 1.2 of this ordinance. Permit modifications at the request of the permittee resulting in changes to stormwater management plans that require additional review by the County of Roanoke shall not be exempt pursuant to this Section. 2. Permittees whose general permits are modified or amended at the initiative of the Department, excluding errors in the registration statement identified by the County of Roanoke or errors related to the acreage of the site. G. All incomplete payments will be deemed as non-payments, and the applicant shall be notified of any incomplete payments. Interest may be charged for late payments at the underpayment rate set forth in § 58.1-15 of the Code of Virginia and is calculated monthly at the applicable periodic rate. A 10% late payment fee shall be charged to any delinquent (over 90 days past due) account. The County of Roanoke shall be entitled to all remedies available under the Code of Virginia in collecting any past due amount. Section 8.1-22 PERFORMANCE BOND. A. Prior to issuance of any permit, the applicant shall be required to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the County of Roanoke Attorney, to ensure that measures could be taken by the County of Roanoke at the applicant’s expense should he/she fail, after proper notice, within the time specified to initiate or maintain appropriate actions which may be required of him/her by the permit conditions as a result of his/her land disturbing activity. If the County of Roanoke takes such action upon such failure by the applicant, the County of Roanoke may collect from the applicant for the difference should the amount of the reasonable cost of such action exceed the amount of the security held, if any. Within 60 days of the completion of the requirements of the permit conditions, such bond, cash escrow, letter of credit or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated. 40 CHAPTER 23 – REPEALED IN ENTIRETY AND RESERVED AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER ON TUESDAY, JUNE 11, 2024 ORDINANCE AMENDING CHAPTER 8.1 OF THE ROANOKE COUNTY CODE AND REPEALING CHAPTER 23 OF THE ROANOKE COUNTY CODE IN ORDER TO CREATE A CONSOLIDATED EROSION AND STORMWATER MANAGEMENT PROGRAM ORDINANCE WHEREAS, on June 22, 2023 the State Water Control Board approved and adopted the Virginia Erosion and Stormwater Management (VESM) Regulation (9VAC25- 875) and approved the repeal of the Erosion and Sediment Control Regulations (9VAC25- 840), the Erosion and Sediment Control and Stormwater Management Certification Regulations (9VAC25-850), and the Virginia Stormwater Management Program Regulation (9VAC25-870) effective July 1, 2024; and WHEREAS, on July 1, 2024, Chapters 68 and 758 of the 2016 Acts of Assembly (referred to as the “Consolidation Bill”) become effective which combines the stormwater management and erosion and sediment control requirements under the Virginia Erosion and Stormwater Management Act (VESMA); and WHEREAS, with the Consolidation Bill and VESM Regulation becoming effective on July 1, 2024, local ordinances for the administration of a Virginia Erosion and Sediment Control Program (VESCP) or Virginia Stormwater Management Program (VSMP) will need to be updated to reflect both the new law and regulations; and WHEREAS, because Roanoke County administers a VESCP and a VSMP, the Roanoke County Code needs to be updated to reflect the new law and regulations; and WHEREAS, it is proposed that the Roanoke County Code be amended to consolidate erosion and stormwater management control provisions (the new consolidated ordinance to become Chapter 8.1 of the Roanoke County Code); and WHEREAS, the first reading of this ordinance was held on June 11, 2024, and the second reading and public hearing of this ordinance was held on June 25, 2024. NOW THEREFORE BE IT ORDAINED by the Roanoke County Board of Supervisors: 1. That Chapter 8.1 of the Roanoke County Code shall be amended and stated as follows: CHAPTER 8.1 - EROSION AND STORMWATER MANAGEMENT PROGRAM Pursuant to § 62.1-44.15:27 of the Code of Virginia, this ordinance is adopted as part of an initiative to integrate the County of Roanoke stormwater management requirements with the County of Roanoke erosion and sediment control requirements into a consolidated erosion and stormwater management program. The erosion and stormwater management program is intended to facilitate the submission and approval of plans, issuance of permits, payment of fees, and coordination of inspection and enforcement activities for land-disturbing activities into a more convenient and efficient manner for both the County of Roanoke and those responsible for compliance with these programs. Section 8.1-1 TITLE, PURPOSE, AND AUTHORITY. A. This ordinance shall be known as the “Erosion and Stormwater Management Ordinance of the County of Roanoke.” B. The purpose of this ordinance is to ensure the general health, safety, and welfare of the citizens of the County of Roanoke to protect the quality and quantity of state waters from the potential harm of unmanaged stormwater and soil erosion, including protection from a land disturbing activity causing unreasonable degradation of properties, water quality, stream channels, steep slopes, and other natural resources, and to establish procedures whereby stormwater requirements related to water quality and quantity shall be administered and enforced. C. This ordinance is authorized by § 62.1-44.15:27 of the Code of Virginia. D. Applicability of chapter in Town of Vinton: The provisions of this chapter shall be applicable within the corporate limits of the Town of Vinton. Administrative procedures and review fees may be established to accommodate the review of plans for development located within the Town. Section 8.1-2 DEFINITIONS. The following words and terms, when used in this ordinance, shall have the following meanings, unless the context clearly indicates otherwise. “Adequate channel” means a channel that will convey the designated frequency storm event without overtopping the channel bank nor causing erosive damage to the channel bed or banks. “Agreement in lieu of a plan” means a contract between the County of Roanoke and the owner or permittee that specifies methods that shall be implemented to comply with the requirements of the VESMA and this ordinance for the construction of a (i) single- family detached residential structure or (ii) farm building or structure on a parcel of land with a total impervious cover percentage, including the impervious cover from the farm building or structure to be constructed, of less than five percent, or (iii) other regulated land disturbing activities that disturb less than 10,000 square feet; such contract may be executed by the County of Roanoke in lieu of a soil erosion control and stormwater management plan. “Administrator” means the County of Roanoke’s County Administrator or his or her designee who shall administer the Virginia Erosion and Stormwater Management Program established by this Ordinance. “Applicant” means any person submitting a soil erosion control and stormwater management plan to a VESMP authority for approval to obtain authorization to commence a land-disturbing activity. “Best management practice” or “BMP” means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices, including both structural and nonstructural practices, to prevent or reduce the pollution of surface waters and groundwater systems. 1. “Nonproprietary best management practice” means both structural and nonstructural practices to prevent or reduce the pollution of surface waters and groundwater systems that are in the public domain and are not protected by trademark, patent, or copyright. 2. “Proprietary best management practice” means both structural and nonstructural practices to prevent or reduce the pollution of surface waters and groundwater systems that are privately owned and controlled and may be protected by trademark, patent, or copyright. “Board” means the State Water Control Board. “Causeway” means a temporary structural span constructed across a flowing watercourse or wetland to allow construction traffic to access the area without causing erosion damage. “Channel” means a natural stream or manmade waterway. “Clean Water Act” or “CWA” means the federal Clean Water Act (33 USC § 1251 et seq.), formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, as amended by Public Law 95-217, Public Law 95-576, Public Law 96-483, and Public Law 97-117, or any subsequent revisions thereto. “Cofferdam” means a watertight temporary structure in a river, lake, etc., for keeping the water from an enclosed area that has been pumped dry so that bridge foundations, dams, etc., may be constructed. “Common plan of development or sale” means a contiguous area where separate and distinct construction activities may be taking place at different times on different schedules. “Comprehensive stormwater management plan” means a plan, which may be integrated with other land use plans or regulations that specifies how the stormwater quality components, quantity components, or both are to be managed based on an entire watershed or a portion thereof. The plan may also provide for the remediation of erosion, flooding, and water quality and quantity problems caused by prior development. “Construction activity” means any clearing, grading, or excavation associated with large construction activity or associated with small construction activity. “Control measure” means any BMP, stormwater facility, or other method used to minimize the discharge of pollutants to state waters. “CWA and regulations” mean the Clean Water Act and applicable regulations published in the Code of Federal Regulations promulgated thereunder. For the purposes of this ordinance, it includes state program requirements. “Dam” means a barrier to confine or raise water for storage or diversion, to create a hydraulic head, to prevent gully erosion, or to retain soil, rock, or other debris. “Denuded” means land that has been physically disturbed and no longer supports vegetative cover. “Department” or “DEQ” means the Virginia Department of Environmental Quality. “Development” means land disturbance and the resulting landform associated with the construction of residential, commercial, industrial, institutional, recreational, transportation-related, or utility facilities or structures or the clearing of land for non- agricultural or non-silvicultural purposes. The regulation of discharges from development, for purposes of stormwater management, does not include the exclusions found in 9VAC25-875-860. “Dike” [or “levee”] means an earthen embankment constructed to confine or control water, especially one built along the banks of a river to prevent overflow of lowlands. “Discharge” when used without qualification, means the discharge of a pollutant. “Discharge of a pollutant” means: 1. Any addition of any pollutant or combination of pollutants to state waters from any point source; or 2. Any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft which is being used as a means of transportation. This definition includes addition of pollutants into surface waters from: surface runoff that is collected or channeled by man; discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other person that do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. This term does not include an addition of pollutants by any indirect discharger. “District” or “soil and water conservation district” means a political subdivision of the Commonwealth organized in accordance with the provisions of Article 3 (§ 10.1-506 et seq.) of Chapter 5 of Title 10.1 of the Code of Virginia. “Diversion” means a channel with a supporting ridge on the lower side constructed across or at the bottom of a slope for the purpose of intercepting surface runoff. “Dormant” means denuded land that is not actively being brought to a desired grade or condition. “Drainage area” means a land area, water area, or both from which runoff flows to a common point. “Energy dissipator” means a non-erodible structure which reduces the velocity of concentrated flow to reduce its erosive effects. “Environmental Protection Agency” or “EPA” means the United States Environmental Protection Agency. “Erosion and sediment control plan” means a document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives. “Erosion impact area” means an area of land that is not associated with a current land- disturbing activity but is subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of 10,000 square feet or less used for residential purposes or to shorelines where the erosion results from wave action or other coastal processes. “ESC” means erosion and sediment control. “ESM plan” means a soil erosion control and stormwater management plan, commonly referred to as the erosion control and stormwater management plan. “Farm building or structure” means the same as defined in § 36-97 of the Code of Virginia and includes any building or structure used for an agritourism activity, as defined in § 3.2-6400 of the Code of Virginia, and any related impervious services including roads, driveways, and parking areas. “Flood fringe” means the portion of the floodplain outside the floodway that is usually covered with water from the 100-year flood or storm event. This includes the flood or floodway fringe designated by the Federal Emergency Management Agency. “Flooding” means a volume of water that is too great to be confined within the banks or walls of the stream, water body, or conveyance system and that overflows onto adjacent lands, thereby causing or threatening damage. “Floodplain” means the area adjacent to a channel, river, stream, or other water body that is susceptible to being inundated by water normally associated with the 100-year flood or storm event. This includes the floodplain designated by the Federal Emergency Management Agency. “Flood-prone area” means the component of a natural or restored stormwater conveyance system that is outside the main channel. Flood-prone areas may include the floodplain, the floodway, the flood fringe, wetlands, riparian buffers, or other areas adjacent to the main channel. “Floodway” means the channel of a river or other watercourse and the adjacent land areas, usually associated with flowing water, that must be reserved to discharge the 100- year flood or storm event without cumulatively increasing the water surface elevation more than one foot. This includes the floodway designated by the Federal Emergency Management Agency. “Flume” means a constructed device lined with erosion-resistant materials intended to convey water on steep grades. “General permit” means a permit authorizing a category of discharges under the CWA and the VESMA within a geographical area. “Hydrologic Unit Code” or “HUC” means a watershed unit established in the most recent version of Virginia's 6th Order National Watershed Boundary Dataset unless specifically identified as another order. “Impervious cover” means a surface composed of material that significantly impedes or prevents natural infiltration of water into soil. “Incorporated place” means a city, town, township, or village that is incorporated under the Code of Virginia. “Inspection” means an on-site review of the project’s compliance with any applicable design criteria, or an on-site review to obtain information or conduct surveys or investigations necessary in the implementation or enforcement of the VESMA and applicable regulations. “Karst area” means any land area predominantly underlain at the surface or shallow subsurface by limestone, dolomite, or other soluble bedrock regardless of any obvious surface karst features. “Karst features” means sinkholes, sinking and losing streams, caves, large flow springs, and other such landscape features found in karst areas. “Land disturbance” or “land-disturbing activity” means a manmade change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including construction activity such as the clearing, grading, excavating, or filling of land. “Land-disturbance approval” means an approval allowing a land-disturbing activity to commence as issued by the VESMP authority after the requirements of § 62.1-44.15:34 of the Code of Virginia have been met. “Large construction activity” means construction activity including clearing, grading, and excavating, except operations that result in the disturbance of less than five acres of total land area. Large construction activity also includes the disturbance of less than five acres of total land area that is a part of a larger common plan of development or sale if the larger common plan will ultimately disturb five acres or more. Large construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility. “Linear development project” means a land-disturbing activity that is linear in nature such as, but not limited to, (i) the construction of electric and telephone utility lines, and natural gas pipelines; (ii) construction of tracks, rights-of-way, bridges, communication facilities and other related structures of a railroad company; (iii) highway construction projects; (iv) construction of stormwater channels and stream restoration activities; and (v) water and sewer lines. Private subdivision roads or streets shall not be considered linear development projects. “Live watercourse” means a definite channel with bed and banks within which concentrated water continuously flows. “Locality” means the County of Roanoke. “Localized flooding” means smaller scale flooding that may occur outside of a stormwater conveyance system. This may include high water, ponding, or standing water from stormwater runoff, which is likely to cause property damage or unsafe conditions. “Main channel” means the portion of the stormwater conveyance system that contains the base flow and small frequent storm events. “Manmade” means constructed by man. “Minimize” means to reduce or eliminate the discharge of pollutants to the extent achievable using stormwater controls that are technologically available and economically practicable. “Minor modification” means modifications and amendments not requiring extensive review and evaluation including changes in EPA promulgated test protocols, increasing monitoring frequency requirements, changes in sampling locations, and changes to compliance dates within the overall compliance schedules. A minor permit modification or amendment does not substantially alter permit conditions, substantially increase or decrease the amount of surface water impacts, increase the size of the operation, or reduce the capacity of the facility to protect human health or the environment. “Natural channel design concepts” means the utilization of engineering analysis and fluvial geomorphic processes to create, rehabilitate, restore, or stabilize an open conveyance system for the purpose of creating or recreating a stream that conveys its bank-full storm event within its banks and allows larger flows to access its bank-full bench and its floodplain. “Natural stream” means a tidal or nontidal watercourse that is part of the natural topography. It usually maintains a continuous or seasonal flow during the year and is characterized as being irregular in cross-section with a meandering course. Constructed channels such as drainage ditches or swales shall not be considered natural streams; however, channels designed utilizing natural channel design concepts may be considered natural streams. “Non-erodible” means a material that will not experience surface wear due to natural forces, such as riprap, concrete, plastic, etc. “Nonpoint source pollution” means pollution such as sediment, nitrogen, phosphorous, hydrocarbons, heavy metals, and toxics whose sources cannot be pinpointed but rather are washed from the land surface in a diffuse manner by stormwater. “Operator” means the owner or operator of any facility or activity subject to the VESMA and this ordinance. In the context of stormwater associated with a large or small construction activity, operator means any person associated with a construction project that meets either of the following two criteria: (i) the person has direct operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications or (ii) the person has day-to-day operational control of those activities at a project that are necessary to ensure compliance with a stormwater pollution prevention plan for the site or other permit or VESMP authority permit conditions (i.e., they are authorized to direct workers at a site to carry out activities required by the stormwater pollution prevention plan or comply with other permit conditions). “Owner” means the same as defined in § 62.1-44.3 of the Code of Virginia. For a regulated land-disturbing activity that does not require a permit, “owner” also means the owner or owners of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a property. “Peak flow rate” means the maximum instantaneous flow from a prescribed design storm at a particular location. “Percent impervious” means the impervious area within the site divided by the area of the site multiplied by 100. “Permit” or “Construction General Permit (CGP)” means the General VPDES Permit for Discharges of Stormwater from Construction Activities found at 9VAC25-880-70. Coverage under this permit is issued by the Department pursuant to § 62.1-44.15 of the Code of Virginia for stormwater discharges from a land-disturbing activity. “Permittee” means the person to whom the permit is issued. “Person” means any applicant, owner, individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, governmental body, including a federal or state entity as applicable, any interstate body, or any other legal entity. “Point of discharge” means a location at which concentrated stormwater runoff is released. “Point source” means any discernible, confined, and discrete conveyance including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural stormwater runoff. “Pollutant discharge” means the average amount of a particular pollutant measured in pounds per year or another standard reportable unit as appropriate, delivered by stormwater runoff. “Pollution” means such alteration of the physical, chemical, or biological properties of any state waters as will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety, or welfare, or to the health of animals, fish, or aquatic life; (b) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (c) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses, provided that (i) an alteration of the physical, chemical, or biological property of state waters, or a discharge or deposit of sewage, industrial wastes, or other wastes to state waters by any owner which by itself is not sufficient to cause pollution, but which, in combination with such alteration of, or discharge or deposit to state waters by other owners, is sufficient to cause pollution; (ii) the discharge of untreated sewage by any owner into state waters; and (iii) contributing to the contravention of standards of water quality duly established by the State Water Control Board, are “pollution” for the terms and purposes of this ordinance. “Post-development” refers to conditions that reasonably may be expected or anticipated to exist after completion of the land development activity on a specific site or tract of land. “Predevelopment” refers to the conditions that exist at the time that plans for the land- disturbing activity are submitted to the VESMP authority. Where phased development or plan approval occurs (preliminary grading, demolition of existing structures, roads, and utilities, etc.), the existing conditions at the time prior to the commencement of land- disturbing activity shall establish predevelopment conditions. “Prior developed land” means land that has been previously utilized for residential, commercial, industrial, institutional, recreational, transportation-related, or utility facilities or structures, and that will have the impervious areas associated with those uses altered during a land-disturbing activity. “Qualified personnel” means a person knowledgeable in the principles and practices of erosion and sediment control and stormwater management who possesses the skills to assess conditions at the construction site for the operator that could impact stormwater quality and quantity and to assess the effectiveness of any erosion and sediment control measures or stormwater management facilities selected to control the quality and quantity of stormwater discharges from the construction activity. “Responsible land disturber” or “RLD” means an individual holding a certificate issued by the department who is responsible for carrying out the land-disturbing activity in accordance with the approved erosion and sediment control plan or ESM plan. The RLD may be the owner, applicant, permittee, designer, superintendent, project manager, contractor, or any other project or development team member. The RLD must be designated on the erosion and sediment control plan, ESM plan, or permit as defined in this ordinance as a prerequisite for engaging in land disturbance. “Runoff” or “stormwater runoff” means that portion of precipitation that is discharged across the land surface or through conveyances to one or more waterways. “Runoff characteristics” includes maximum velocity, peak flow rate, volume, and flow duration. “Runoff volume” means the volume of water that runs off the land development project from a prescribed storm event. “Sediment basin” means a temporary impoundment built to retain stormwater, sediment, and debris with a controlled stormwater release structure. “Sediment trap” means a temporary impoundment built to retain stormwater, sediment, and debris which is formed by constructing an earthen embankment with a stone outlet. “Sheet flow” (also called “overland flow”) means shallow, unconcentrated, and irregular flow down a slope. Overland flow usually does not exceed 200 feet under natural conditions. “Shoreline erosion control project” means an erosion control project approved by local wetlands boards, the Virginia Marine Resources Commission, the Department, or the United States Army Corps of Engineers and located on tidal waters and within non- vegetated or vegetated wetlands as defined in Title 28.2 of the Code of Virginia. “Site” means the land or water area where any facility or land-disturbing activity is physically located or conducted, including adjacent land used or preserved in connection with the facility or land-disturbing activity. Areas channelward of mean low water in tidal Virginia shall not be considered part of a site. “Site hydrology” means the movement of water on, across, through, and off the site as determined by parameters including soil types, soil permeability, vegetative cover, seasonal water tables, slopes, land cover, and impervious cover. “Slope drain” means a pipe, tube, or conduit made of nonerosive material extending from the top to the bottom of a cut or fill slope with an energy dissipator at the outlet end for the purpose of carrying stormwater down the slope in a non-erosive manner. “Small construction activity” means: 1. Construction activities including clearing, grading, and excavating that result in land disturbance that is equal to or greater than one acre and less than five acres. Small construction activity also includes the disturbance of less than one acre of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb equal to or greater than one and less than five acres. Small construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility. The department may waive the otherwise applicable requirements in a general permit for a stormwater discharge from construction activities that disturb less than five acres where stormwater controls are not needed based on an approved “total maximum daily load” (TMDL) that addresses the pollutants of concern or, for nonimpaired waters that do not require TMDLs, an equivalent analysis that determines allocations for small construction sites for the pollutants of concern or that determines that such allocations are not needed to protect water quality based on consideration of existing in-stream concentrations, expected growth in pollutant contributions from all sources, and a margin of safety. The pollutants of concern include sediment or a parameter that addresses sediment (such as total suspended solids, turbidity, or siltation) and any other pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from the construction activity. The operator shall certify to the Department that the construction activity will take place, and stormwater discharges will occur, within the drainage area addressed by the TMDL or provide an equivalent analysis. As of the start date in Table 1 of 9VAC25-31- 1020, all certifications submitted in support of the waiver shall be submitted electronically by the owner or operator to the Department in compliance with this subdivision and 40 CFR Part 3 (including, in all cases, 40 CFR Part 3 Subpart D), 9VAC25-875-940, and Part XI (9VAC25-31-950 et seq.) of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation. Part XI of 9VAC25-31 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of Part XI of 9VAC25- 31, permittees may be required to report electronically if specified by a particular permit. 2. Any other construction activity designated by either the Department or the EPA regional administrator, based on the potential for contribution to a violation of a water quality standard or for significant contribution of pollutants to surface waters. “Soil erosion” means the movement of soil by wind or water into state waters or onto lands in the Commonwealth. “Soil erosion control and stormwater management plan,” commonly referred to as the erosion control and stormwater management plan, or “ESM plan” means a document describing methods for controlling soil erosion and managing stormwater in accordance with the requirements adopted pursuant to the VESMA. The ESM plan may consist of aspects of the erosion and sediment control plan and the stormwater management plan as each is described in this ordinance. “Stabilized” means land that has been treated or protected to withstand normal exposure to natural forces without incurring erosion damage. “State” means the Commonwealth of Virginia. “State application” or “application” means the standard form or forms, including any additions, revisions, or modifications to the forms, approved by the Administrator and the Department for applying for a permit. “State Water Control Law” means Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia. “State waters” means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands. “Steep slope” means a slope greater than 3:1, or thirty-three and one-third (33.3) percent. “Storm sewer inlet” or “storm drainage inlet” means a structure through which stormwater is introduced into an underground conveyance system. “Stormwater,” for the purposes of the VESMA, means precipitation that is discharged across the land surface or through conveyances to one or more waterways and that may include stormwater runoff, snow melt runoff, and surface runoff and drainage. “Stormwater conveyance system” means a combination of drainage components that are used to convey stormwater discharge, either within or downstream of the land- disturbing activity. This includes: 1. “Manmade stormwater conveyance system” means a pipe, ditch, vegetated swale, or other stormwater conveyance system constructed by man except for restored stormwater conveyance systems; 2. “Natural stormwater conveyance system” means the main channel of a natural stream and the flood-prone area adjacent to the main channel; or 3. “Restored stormwater conveyance system” means a stormwater conveyance system that has been designed and constructed using natural channel design concepts. Restored stormwater conveyance systems include the main channel and the flood-prone area adjacent to the main channel. “Stormwater detention” means the process of temporarily impounding runoff and discharging it through a hydraulic outlet structure to a downstream conveyance system. “Stormwater management facility” means a control measure that controls stormwater runoff and changes the characteristics of that runoff including the quantity and quality, the period of release, or the velocity of flow. “Stormwater management plan” means a document containing material describing methods for complying with the requirements of the VESMP. “Stormwater Pollution Prevention Plan” or “SWPPP” means a document that is prepared in accordance with good engineering practices and that identifies potential sources of pollutants that may reasonably be expected to affect the quality of stormwater discharges. A SWPPP required under the VESMP for construction activities shall identify and require the implementation of control measures and shall include or incorporate by reference an approved erosion and sediment control plan, an approved stormwater management plan, and a pollution prevention plan. “Subdivision” means the same as defined in § 15.2-2201 of the Code of Virginia. “Surface waters” means: 1. All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide; 2. All interstate waters, including interstate wetlands; 3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds for which the use, degradation, or destruction would affect or could affect interstate or foreign commerce including any such waters: a. That are or could be used by interstate or foreign travelers for recreational or other purposes; b. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or c. That are used or could be used for industrial purposes by industries in interstate commerce; 4. All impoundments of waters otherwise defined as surface waters under this definition; 5. Tributaries of waters identified in subdivisions 1 through 4 of this definition; 6. The territorial sea; and 7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in subdivisions 1 through 6 of this definition. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA and the law, are not surface waters. Surface waters do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other agency, for the purposes of the CWA, the final authority regarding the CWA jurisdiction remains with the EPA. “SWM” means stormwater management. “Temporary vehicular stream crossing” means a temporary non-erodible structural span installed across a flowing watercourse for use by construction traffic. Structures may include bridges, round pipes, or pipe arches constructed on or through non-erodible material. “Ten-year storm” means a storm that can produce rainfall expected to be equaled or exceeded on the average of once in 10 years. It may also be expressed as an exceedance probability with a 10% chance of being equaled or exceeded in any given year. “Total maximum daily load” or “TMDL” means the sum of the individual wasteload allocations for point sources, load allocations (LAs) for nonpoint sources, natural background loading, and a margin of safety. TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure. The TMDL process provides for point versus nonpoint source trade-offs. “Town” means an incorporated town. “Two-year storm” means a storm that can produce rainfall expected to be equaled or exceeded on the average of once in two years. It may also be expressed as an exceedance probability with a 50% chance of being equaled or exceeded in any given year. “Virginia Erosion and Stormwater Management Act” or “VESMA” means Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1, State Water Control Law, of Title 62.1 of the Code of Virginia. “Virginia Erosion and Stormwater Management Program” or “VESMP” means a program established by the VESMP authority for the effective control of soil erosion and sediment deposition and the management of the quality and quantity of runoff resulting from land-disturbing activities to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources. The program shall include such items as local ordinances, rules, requirements for permits and land-disturbance approvals, policies and guidelines, technical materials, and requirements for plan review, inspection, and enforcement consistent with the requirements of the VESMA. “Virginia Erosion and Stormwater Management Program Authority” or “VESMP Authority” means the County of Roanoke as approved by the Department to operate the VESMP. “Virginia Pollutant Discharge Elimination System (VPDES) permit” or “VPDES permit” means a document issued by the department pursuant to the State Water Control Law authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters. “Virginia Stormwater BMP Clearinghouse” means a website collection that contains detailed design standards and specifications for control measures that may be used in Virginia to comply with the requirements of the VESMA and associated regulations. “Virginia Stormwater Management Handbook” means a book collection of pertinent information that provides general guidance for compliance with the VESMA and associated regulations and is developed by the Department with advice from a stakeholder advisory committee. “Wasteload allocation” or “wasteload” means the portion of a receiving surface water’s loading or assimilative capacity allocated to one of its existing or future point sources of pollution. Wasteload allocation is a type of water quality-based effluent limitation. “Water quality technical criteria” means standards set forth in regulations adopted pursuant to the VESMA that establish minimum design criteria for measures to control nonpoint source pollution. “Water quantity technical criteria” means standards set forth in regulations adopted pursuant to the VESMA that establish minimum design criteria for measures to control localized flooding and stream channel erosion. “Watershed” means a defined land area drained by a river or stream, karst system, or system of connecting rivers or streams such that all surface water within the area flows through a single outlet. In karst areas, the karst feature to which water drains may be considered the single outlet for the watershed. “Wetlands” means those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Section 8.1-3 ADMINISTRATION OF CHAPTER IN CONJUNCTION WITH SUBDIVISION AND ZONING ORDINANCES. This chapter shall be administered, where applicable, in conjunction with the County’s subdivision and zoning ordinances wherein such apply to the development and subdivision of land within the County or where such apply to development on previously subdivided land within the County. Section 8.1-4 VIRGINIA EROSION AND STORMWATER MANAGEMENT PROGRAM ESTABLISHED. Pursuant to § 62.1-44.15:27 of the Code of Virginia, the County of Roanoke hereby establishes a Virginia Erosion and Stormwater Management Program for land-disturbing activities and adopts the Virginia Erosion and Stormwater Management Regulation that specifies standards and specifications for VESMPs promulgated by the State Water Control Board for the purposes set out in Section 1.1 of this Ordinance. The County of Roanoke hereby designates the County Administrator or his or her designee as the Administrator of the Virginia Erosion and Stormwater Management Program established by this Ordinance. Section 8.1-5 REGULATED LAND DISTURBING ACTIVITIES. A. Land-disturbing activities that meet one of the criteria below are regulated as follows: 1. Land-disturbing activity that disturbs 2,500 square feet or more, is less than one acre, and is subject to criteria defined in Article 2 (9VAC25-875-540 et seq.) and Article 3 (9VAC25-875-570 et seq.) of Part V unless Article 4 (9VAC25-875-670 et seq) of Part V of the Regulation is applicable, as determined in accordance with 9VAC25-875-480 and 9VAC25-875-490. 2. Land-disturbing activity that disturbs less than one acre, but is part of a larger common plan of development or sale that disturbs one acre or more, is subject to criteria defined in Article 2 (9VAC25-875-540 et seq.) and Article 3 (9VAC25- 875-570 et seq.) of Part V unless Article 4 (9VAC25-875-670 et seq) of Part V of the Regulation is applicable, as determined in accordance with 9VAC25-875- 480 and 9VAC25-875-490. 3. Land-disturbing activity that disturbs one acre or more is subject to criteria defined in Article 2 (9VAC25-875-540 et seq.) and Article 3 (9VAC25-875-570 et seq.) of Part V unless Article 4 (9VAC25-875-670 et seq.) of Part V is applicable, as determined in accordance with 9VAC25-875-480 and 9VAC25- 875-490. B. Land-disturbing activities exempt per 9VAC25-875-90 are not required to comply with the requirements of the VESMA unless otherwise required by federal law. Section 8.1-6 REVIEW AND APPROVAL OF PLANS; PROHIBITIONS. A. A person who wishes to conduct a land-disturbing activity in the County of Roanoke shall submit a soil erosion control and stormwater management plan (ESM) that is consistent with the requirements of the Virginia Erosion and Stormwater Management Act (VESMA). Activities not required to comply with the VESMA are defined in 9VAC25-875-90. B. A person shall not conduct any land-disturbing activity in the County of Roanoke until: 1. Such person submits an application that includes a permit registration statement, if required, a soil erosion control and stormwater management plan or an executed agreement in lieu of a plan, if required, to the County of Roanoke; 2. Such person submits the name of the individual who will be assisting them in carrying out the activity and this individual shall hold a Responsible Land Disturber certificate pursuant to § 62.1-44.15:30 of the Code of Virginia. Failure to provide the name of an individual holding a Responsible Land Disturber certificate prior to engaging in land-disturbing activities may result in revocation of the land-disturbance approval and shall subject the owner to the penalties provided by the VESMA; and 3. The County of Roanoke has issued its land-disturbance approval. C. The County of Roanoke may require changes to an approved ESM plan in the following cases: 1. Where inspection has revealed that the plan is inadequate to satisfy applicable regulations or ordinances; or 2. Where the owner finds that because of changed circumstances or for other reasons the plan cannot be effectively carried out, and proposed amendments to the plan, consistent with the requirements of the Act, are agreed to by the VESMP authority and the owner. D. To prevent further erosion, the County of Roanoke may require approval of an erosion and sediment control plan and a stormwater management plan for any land it identifies as an erosion impact area, pursuant to § 62.1-44.15:34 of the Code of Virginia. E. As a part of the land-disturbance approval process, the County of Roanoke may require the applicant to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the County of Roanoke, to ensure that it can take measures at the applicant’s expense should he/she fail, after proper notice, within the time specified to comply with the conditions it imposes as a result of his/her land-disturbing activity. If the County of Roanoke takes such action upon such failure by the applicant, it may collect from the applicant the difference should the amount of the reasonable cost of such action exceed the amount of the security held. If the applicant fulfills the VESMP authority’s conditions, the County of Roanoke will refund to the applicant or terminate, as applicable, such bond, cash escrow, letter of credit, or other legal arrangement, or the unexpended or unobligated portion thereof. F. Variances and Exceptions. 1. The applicant may request the County of Roanoke to grant a variance to waive or modify any of the erosion and sediment control requirements of Article 2 (9VAC25-875-540 et seq.) of Part V (9VAC25-875-470 et seq.) that are deemed inappropriate or too restrictive for site conditions under these conditions: a. At the time of plan submission, an applicant may request a variance to become part of the approved erosion and sediment control plan. The applicant shall explain the reasons for requesting variances in writing. Specific variances which are allowed by the County of Roanoke shall be documented in the plan. b. During construction, the person responsible for implementing the approved plan may request a variance in writing from the County of Roanoke. If the County of Roanoke does not approve a variance in writing within 10 days of receipt of the request, the request shall be disapproved. Following disapproval, the applicant may resubmit a variance request with additional documentation. 2. The applicant may request the County of Roanoke to grant an exception to the provisions of Article 3 (9VAC25-875-570 et seq.) of Part V. An exception may be granted by the County of Roanoke provided that (i) the exception is the minimum necessary to afford relief, (ii) reasonable and appropriate conditions shall be imposed as necessary upon any exception granted so that the intent of the VESMA is preserved, (iii) granting the exception will not confer any special privileges that are denied in other similar circumstances, and (iv) exception requests are not based upon conditions or circumstances that are self-imposed or self-created. 3. Economic hardship alone is not a sufficient reason to grant a variance or an exception from the requirements of this chapter. 4. Under no circumstance shall the applicant be granted an exception (i) to the requirement that the land-disturbing activity obtain required permits, or (ii) for the use of a BMP not found through the Virginia Stormwater BMP Clearinghouse, except as allowed under Article 4 (9VAC25-875-670 et seq.) of Part V of this chapter. 5. No exception to, or waiver of, post-development nonpoint source nutrient runoff compliance requirements shall be granted unless offsite options have been considered and found not available in accordance with subsection D of § 62.1- 44.15:35 of the Code of Virginia. 6. A record of all exceptions granted shall be maintained by the County of Roanoke in accordance with 9VAC25-875-180. Section 8.1-7 STORMWATER PERMIT REQUIREMENT; EXEMPTIONS. A. Except as provided herein, no person may engage in any land-disturbing activity until the County of Roanoke has granted land disturbance approval in accordance with the provisions of this ordinance and the Regulation. B. Notwithstanding any other provisions of this ordinance, the following activities are not required to comply with the requirements of this ordinance unless otherwise required by federal law: 1. Minor land-disturbing activities, including home gardens and individual home landscaping, repairs, and maintenance work; 2. Installation, maintenance, or repair of any individual service connection; 3. Installation, maintenance, or repair of any underground utility line when such activity occurs on an existing hard surfaced road, street, or sidewalk, provided the land-disturbing activity is confined to the area of the road, street, or sidewalk that is hard surfaced; 4. Installation, maintenance, or repair of any septic tank line or drainage field unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system; 5. Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted pursuant to Title 45.2 of the Code of Virginia; 6. Clearing of lands specifically for bona fide agricultural purposes; the management, tilling, planting, or harvesting of agricultural, horticultural, or forest crops; livestock feedlot operations; agricultural engineering operations, including construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; or as additionally set forth by the Board in regulations. However, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq. of the Code of Virginia) or is converted to bona fide agricultural or improved pasture use as described in subsection B of § 10.1- 1163 of the Code of Virginia; 7. Installation of fence and signposts or telephone and electric poles and other kinds of posts or poles; 8. Shoreline erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by local wetlands boards, the Virginia Marine Resources Commission, or the United States Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to the VESMA and the regulations adopted pursuant thereto; 9. Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company; 10. Land-disturbing activities in response to a public emergency where the related work requires immediate authorization to avoid imminent endangerment to human health or the environment. In such situations, the person conducting the land-disturbing activity shall advise the County of Roanoke of the disturbance within seven days of commencing the land-disturbing activity and shall comply with the administrative requirements of subsection A within 30 days of commencing the land-disturbing activity; and 11. Discharges to a sanitary sewer or a combined sewer system that are not from a land-disturbing activity. C. Notwithstanding this ordinance and in accordance with the Virginia Erosion and Stormwater Management Act, Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia, the following activities are required to comply with the soil erosion control requirements but are not required to comply with the water quantity and water quality technical criteria, unless otherwise required by federal law: 1. Activities under a state or federal reclamation program to return an abandoned property to an agricultural or open land use; 2. Routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original construction of the project. The paving of an existing road with a compacted or impervious surface and reestablishment of existing associated ditches and shoulders shall be deemed routine maintenance if performed in accordance with this subsection; and 3. Discharges from a land-disturbing activity to a sanitary sewer or a combined sewer system. Section 8.1-8 STORMWATER POLLUTION PREVENTION PLAN; CONTENTS OF PLANS. A. A stormwater pollution prevention plan shall include, but not be limited to, an approved erosion and sediment control plan, an approved stormwater management plan, a pollution prevention plan for regulated land-disturbing activities, and a description of any additional control measures necessary to address a TMDL pursuant to subsection D of this section. B. A soil erosion control and stormwater management (ESM) plan consistent with the requirements of the Virginia Erosion and Stormwater Management Act (VESMA) and regulations must be designed and submitted to and approved by the County of Roanoke prior to land disturbance in accordance with the VESMA, this ordinance, and attendant regulations. This plan shall be implemented during construction as approved or modified by the County of Roanoke. C. A stormwater pollution prevention plan that identifies potential sources of pollutants that may reasonably be expected to affect the quality of stormwater discharges from the construction site and describe control measures that will be used to minimize pollutants in stormwater discharges from the construction site must be developed before land disturbance commences. D. In addition to the other requirements of this section, if a specific wasteload allocation for a pollutant has been established in an approved TMDL and is assigned to stormwater discharges from a construction activity, additional control measures must be identified and implemented by the operator so that discharges are consistent with the assumptions and requirements of the wasteload allocation. E. The stormwater pollution prevention plan (SWPPP) must address the following requirements as specified in 40 CFR 450.21, to the extent otherwise required by state law or regulations and any applicable requirements of a state permit: 1. Control stormwater volume and velocity within the site to minimize soil erosion; 2. Control stormwater discharges, including both peak flow rates and total stormwater volume, to minimize erosion at outlets and to minimize downstream channel and stream bank erosion; 3. Minimize the amount of soil exposed during construction activity; 4. Minimize the disturbance of steep slopes; 5. Minimize sediment discharges from the site. The design, installation, and maintenance of erosion and sediment controls must address factors such as the amount, frequency, intensity and duration of precipitation, the nature of resulting stormwater runoff, and soil characteristics, including the range of soil particle sizes expected to be present on the site; 6. Provide and maintain natural buffers around surface waters, direct stormwater to vegetated areas to increase sediment removal and maximize stormwater infiltration, unless infeasible; 7. Minimize soil compaction and, unless infeasible, preserve topsoil; 8. Stabilization of disturbed areas must, at a minimum, be initiated immediately whenever any clearing, grading, excavating, or other earth disturbing activities have permanently ceased on any portion of the site, or temporarily ceased on any portion of the site and will not resume for a period exceeding 14 calendar days. Stabilization must be completed within a time frame determined by the VESMP authority. In arid, semiarid, and drought-stricken areas where initiating vegetative stabilization measures immediately is infeasible, alternative stabilization measures must be employed as specified by the County of Roanoke; and 9. Utilize outlet structures that withdraw water from the surface, unless infeasible, when discharging from basins and impoundments. F. The SWPPP shall be amended whenever there is a change in design, construction, operation, or maintenance that has a significant effect on the discharge of pollutants to state waters and that has not been previously addressed in the SWPPP. The SWPPP must be maintained at a central location onsite. If an onsite location is unavailable, notice of the SWPPP’s location must be posted near the main entrance at the construction site. Section 8.1-9 STORMWATER MANAGEMENT PLAN; CONTENTS OF PLAN. A. A stormwater management plan shall be developed and submitted to the County of Roanoke. The stormwater management plan shall be implemented as approved or modified by the County of Roanoke and shall be developed in accordance with the following: 1. A stormwater management plan for a land-disturbing activity shall apply the stormwater management technical criteria set forth in this ordinance and Article 4 (9VAC25-875-670 et seq) of Part V of the Regulation to the entire land- disturbing activity. Individual lots in new residential, commercial, or industrial developments, including those developed under subsequent owners, shall not be considered separate land-disturbing activities. 2. A stormwater management plan shall consider all sources of surface runoff and all sources of subsurface and groundwater flows converted to surface runoff. C. A complete stormwater management plan shall include the following elements: 1. Information on the type of and location of stormwater discharges, information on the features to which stormwater is being discharged including surface waters or karst features, if present, and predevelopment and post-development drainage areas; 2. Contact information including the name, address, telephone number, and email address of the owner and the tax reference number and parcel number of the property or properties affected; 3. A narrative that includes a description of current site conditions and final site conditions or if allowed by the VESMP authority, the information provided and documented during the review process that addresses the current and final site conditions; 4. A general description of the proposed stormwater management facilities and the mechanism through which the facilities will be operated and maintained after construction is complete; 5. Information on the proposed stormwater management facilities, including (i) detailed narrative on the conversion to a long-term stormwater management facility if the facility was used as a temporary ESC measure; (ii) the type of facilities; (iii) location, including geographic coordinates; (iv) acres treated; and (v) the surface waters or karst features into which the facility will discharge; 6. Hydrologic and hydraulic computations, including runoff characteristics; 7. Documentation and calculations verifying compliance with the water quality and quantity requirements of these regulations; 8. A map of the site that depicts the topography of the site and includes: a. All contributing drainage areas; b. Existing streams, ponds, culverts, ditches, wetlands, other water bodies, and floodplains; c. Soil types, geologic formations if karst features are present in the area, forest cover, and other vegetative areas; d. Current land use including existing structures, roads, and locations of known utilities and easements; e. Sufficient information on adjoining parcels to assess the impacts of stormwater from the site on these parcels and to assess the impacts of stormwater from the adjoining parcels on the site; f. The limits of clearing and grading, and the proposed drainage patterns on the site; g. Proposed buildings, roads, parking areas, utilities, and stormwater management facilities; and h. Proposed land use with tabulation of the percentage of surface area to be adapted to various uses, including planned locations of utilities, roads, and easements; 9. If an operator intends to meet the requirements established in 9VAC25-875- 580 or 9VAC25-875-600 using off-site compliance options, where applicable, then a letter of availability from the off-site provider must be included; and 10. If the County of Roanoke requires payment of a fee with the stormwater management plan submission, the fee and the required fee form in accordance with Section 5-8 of this ordinance must have been submitted. C. All final plan elements, specifications, or calculations of the stormwater management plans whose preparation requires a license under Chapter 4 (§ 54.1- 400 et seq.) or Chapter 22 (§ 54.1- 2200 et seq.) of Title 54.1 of the Code of Virginia shall be appropriately signed and sealed by a professional who is licensed to engage in practice in the Commonwealth of Virginia. Nothing in this subsection shall authorize any person to engage in practice outside his area of professional competence. Section 8.1-10 POLLUTION PREVENTION PLAN; CONTENTS OF PLANS. A. A plan for implementing pollution prevention measures during construction activities shall be developed, implemented, and updated as necessary. The pollution prevention plan shall detail the design, installation, implementation, and maintenance of effective pollution prevention measures as specified in 40 CFR 450.21(c) to address dewatering requirements and in 40 CFR 450.21(d) to minimize the discharge of pollutants. At a minimum, such measures must be designed, installed, implemented, and maintained to: 1. Minimize the discharge of pollutants from equipment and vehicle washing, wheel wash water, and other wash waters. Wash waters must be treated in a sediment basin or alternative control that provides equivalent or better treatment prior to discharge; 2. Minimize the exposure of building materials, building products, construction wastes, trash, landscape materials, fertilizers, pesticides, herbicides, detergents, sanitary waste, and other materials present on the site to precipitation and to stormwater; and 3. Minimize the discharge of pollutants from spills and leaks and implement chemical spill and leak prevention and response procedures. B. The pollution prevention plan shall include effective best management practices to prohibit the following discharges in accordance with 40 CFR 450.21(e): 1. Wastewater from washout of concrete, unless managed by an appropriate control; 2. Wastewater from washout and cleanout of stucco, paint, form release oils, curing compounds, and other construction materials; 3. Fuels, oils, or other pollutants used in vehicle and equipment operation and maintenance; and 4. Soaps or solvents used in vehicle and equipment washing. C. The pollution prevention plan shall include appropriate controls for the discharge from dewatering activities, including discharges from dewatering trenches in accordance with 40 CFR 450.21(c). Section 8.1-11 EROSION AND SEDIMENT CONTROL PLAN; CONTENTS OF PLANS A. An erosion and sediment control plan, which is a component of the ESM plan, shall be filed for a development and the buildings constructed within, regardless of the phasing of construction. The erosion and sediment control plan shall contain all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the erosion and sediment control criteria, techniques, and methods (i.e., the minimum standards) in 9VAC25-875-560. The erosion and sediment control plan may include: 1. Appropriate maps; 2. An appropriate soil and water plan inventory and management information with needed interpretations; and 3. A record of decisions contributing to conservation treatment. B. The person responsible for carrying out the plan shall provide the name of an individual holding a Responsible Land Disturber (RLD) certificate who will oversee and be responsible for carrying out the land-disturbing activity to the County of Roanoke. C. If individual lots or sections in a residential development are being developed by different property owners, all land-disturbing activities related to the building construction shall be covered by an erosion and sediment control plan or an "Agreement in Lieu of a Plan" signed by the property owners. Section 8.1-12 TECHNICAL CRITERIA FOR REGULATED LAND DISTURBING ACTIVITIES. A. To protect the quality and quantity of state waters from the potential harm of unmanaged stormwater runoff resulting from land-disturbing activities, the County of Roanoke hereby adopts the technical criteria for regulated land-disturbing activities set forth in Part V of 9VAC25-875 expressly to include 9VAC25-875-580 (water quality design criteria requirements); 9VAC25-875-590 (water quality compliance); 9VAC25-875-600 (water quantity); 9VAC25-875-610 (offsite compliance options); 9VAC25-875-620 (design storms and hydrologic methods); 9VAC25-875-630 (stormwater harvesting); 9VAC25-875-640 (linear development projects); 9VAC25-875-650 (stormwater management impoundment structures or facilities), the Virginia Stormwater Management Handbook, as amended, and those more stringent local criteria which the County Board of Supervisors may adopt by resolution and incorporate into the manual of regulations and policies entitled “Stormwater Management Design Manual” and “Design and Construction Standards Manual,” which shall apply to all land-disturbing activities regulated pursuant to this ordinance, except as expressly set forth in Subsection B of this Section. B. Steep Slopes; Positive Drainage. 1. All development that requires an erosion and sediment control plan or an Agreement in Lieu of a Plan shall address the following requirements: a. If the grade of a site is more than thirty-three and one-third (33.3) percent, comply with the International Building Code, Chapter 18, as amended, for foundation clearances from slopes. b. Cut slopes or fill slopes shall not be greater than 2:1 (horizontal: vertical), unless a geotechnical report is provided for the proposed slopes. c. Cut slopes or fill slopes shall not be greater than twenty-five (25) vertical feet in height, unless a geotechnical report is provided for the proposed slopes. Cut slopes or fill slopes less than or equal to 3:1 (horizontal: vertical) may exceed twenty-five (25) vertical feet in height and shall not require a geotechnical report. d. For any cut slopes or fill slopes greater than or equal to 2:1 (horizontal: vertical) or greater than or equal to twenty-five (25) vertical feet in height with a slope greater than 3:1 (horizontal: vertical), an as-built plan showing that the finished geometry, based on a field survey performed by a licensed surveyor, is in substantial conformity with the design shall be provided to the County of Roanoke. e. Fill materials, compaction methods, and density specifications shall be indicated on the plan. Fill areas intended to support structures shall also be indicated on the plan. 2. Any plan for a new subdivision shall show proposed lot grades to ensure positive drainage away from all permanent structures. C. Stream buffers. 1. Except as provided in this section, each regulated land-disturbing activity shall provide for stream buffers for the purposes of retarding runoff, preventing stream bank erosion, and filtering nonpoint source pollution from runoff. 2. The stream buffer on existing undeveloped land shall extend a minimum of 25 feet on each side of any perennial stream or contiguous wetlands, measured horizontally from the edge of the contiguous wetlands or from the ordinary high- water mark if no wetlands exist. 3. The stream buffer on previously developed land shall either meet the requirements of (ii) above or extend from the side of any perennial stream or contiguous wetlands, measured horizontally from the edge of the contiguous wetlands or from the ordinary high-water mark if no wetlands exist to the edge of existing paved surfaces, structures, or other hardscape, whichever is less. 4. Each stream buffer shall be retained in as natural a condition as possible. Natural ground contours and native vegetation shall be preserved to the fullest possible extent. 5. The following types of improvements and activities shall not be required to retain, establish, or manage a stream buffer, provided that the requirements of this section are satisfied: 1. The construction, installation, operation, and maintenance of electric, gas and telephone transmission lines, railroads, and activities of the Virginia Department of Transportation and their appurtenant structures, which are accomplished in compliance with § 62.1-44.15:27 (Virginia Programs for Erosion Control and Stormwater Management) or an erosion and sediment control plan approved by the Board. 2. The construction, installation, and maintenance by public agencies of storm drainage, water, and sewer lines. 3. The construction and installation of water and sewer lines constructed by private interests for dedication to public agencies, if all the following are satisfied: i. To the extent practical, as determined by the Administrator, the location of the water or sewer lines, shall be outside of all stream buffer areas. ii. No more land shall be disturbed than is necessary to construct, install and maintain the water or sewer lines. iii. All construction and installation of the water or sewer lines shall comply with all applicable federal, state, and local requirements and permits and be conducted in a manner that protects water quality. 6. The following types of structures, control measures, and activities shall be allowed in a stream buffer, provided that the requirements of this section are satisfied: 1. Temporary erosion and sediment control measures, provided that to the extent practical, as determined by the Administrator, the control measures shall be located outside of the stream buffer and disturbance impacts are minimized. Upon removal of the temporary measures, grading and plantings shall be provided to reestablish the stream buffer by restoring pre- development grades and providing appropriate plantings. 2. Water-dependent facilities, water wells, passive recreation access, such as pedestrian trails and multi-use paths, historic preservation, and archaeological activities provided that all applicable federal, state, and local permits are obtained. 3. Storm drainage facilities necessary to drain to the stream, and stormwater management best management practices, provided that the disturbance to the buffer is minimized. 4. Roads, streets, and driveways if disturbance to the natural stream channel and buffer is limited to the minimum reasonably required to develop the site. Whenever practical, roads, streets, and driveways shall not be constructed parallel to a stream within the buffer. 5. Selective removal of invasive plants and reestablishment of vegetative buffer using native plants. 6. Stream drainage improvements that comply with all federal and state permitting requirements. Where channel improvements are made, stream buffers shall be reestablished on both sides of the improved channel. There shall be no stream buffer requirements where streams are replaced with storm drainage pipes. 7. Stream buffers shall be indicated on erosion and sediment control plans and plot plans, and they shall be physically marked and protected in the field with safety fencing or other appropriate means prior to the commencement of clearing or grading. 8. Any lot that was platted prior to July 27, 2021, and any land disturbance with an erosion and sediment control plan that was submitted to the County for review prior to July 27, 2021, are exempt from the requirements to protect and establish stream buffers. D. Nothing in this section shall preclude an operator from constructing to a more stringent standard at his/her discretion. Section 8.1-13 SPECIAL PROVISIONS FOR LAND-DISTURBING ACTIVITIES THAT DISTURB LESS THAN 10,000 SQUARE FEET. A. Land-disturbing activity of less than 2,500 square feet on individual lots in a residential development shall not be considered exempt from the provisions of this chapter, if the total land-disturbing activity in the development is equal to or greater than 2,500 square feet. B. Land-disturbing activities shall meet all the requirements of this chapter, except that the technical provisions contained in 9VAC25-875-560 shall not apply to land disturbing activities that meet the requirements of this section. These include: 1. The adequacy of downstream channels and pipes are not required to be analyzed and verified. 2. No stormwater management measures to address any flow rate capacity or velocity requirements for downstream natural or man-made channels shall be required. C. An agreement in lieu of a plan may, at the discretion of the County of Roanoke, be substituted for an erosion and sediment control plan if executed by the County of Roanoke. All the requirements of section 5.1 shall apply. This provision expands the use of an agreement in lieu of a plan to all land-disturbing activities that disturb less than ten thousand 10,000 square feet. Additional requirements include: 1. Where the land-disturbing activity from the construction of a single-family residence results in less than five thousand (5,000) square feet of disturbed area, an “agreement in lieu of a plan” shall be accompanied by a plot plan that meets the County building permit plot plan requirements. 2. Where the land-disturbing activity from the construction of a single-family residence results in 5,000 square feet or more of disturbed area, an “agreement in lieu of a plan” shall be accompanied by a plot plan that meets the County building permit plot plan requirements, prepared by a responsible land disturber, Virginia professional engineer, land surveyor, landscape architect, architect, or professional soil scientist. A responsible land disturber must also be provided and identified. 3. The County of Roanoke may require additional information or may decline to execute an agreement in lieu of a plan and may require an erosion and sediment control plan in instances where, in the County’s opinion, it is necessary to properly protect downstream properties or the environment. Section 8.1-14 LONG-TERM MAINTENANCE OF PERMANENT STORMWATER FACILITIES. A. The operator shall submit a construction record drawing for permanent stormwater management facilities to the County of Roanoke in accordance with 9VAC25-875- 535. The record drawing shall contain a statement signed by a professional registered in the Commonwealth of Virginia pursuant to Chapter 4 of Title 54.1 of the Code of Virginia, stating that to the best of their knowledge, the construction record drawing shows all adjustments and revisions to the Stormwater Management Plan made during construction, and it shall serve as a permanent record of the actual location of all constructed elements. B. The operator shall submit a “Stormwater Facility Maintenance Agreement” that provides for the long-term responsibility and maintenance of stormwater management facilities and other techniques specified to manage the quality and quantity of runoff. Such requirements shall be set forth in an instrument recorded in the local land records prior to general permit termination or earlier as required by the County of Roanoke and shall at a minimum: 1. Be submitted to the County of Roanoke for review and approval prior to the approval of the stormwater management plan; 2. Be stated to run with the land; 3. Provide for all necessary access to the property for purposes of maintenance and regulatory inspections; 4. Provide for inspections and maintenance and the submission of inspection and maintenance reports to the County of Roanoke and 5. Be enforceable by all appropriate governmental parties. C. At the discretion of the County of Roanoke such recorded instruments need not be required for stormwater management facilities designed to treat stormwater runoff primarily from an individual residential lot on which they are located, provided it is demonstrated to the satisfaction of the County of Roanoke that future maintenance for those facilities will be addressed through an enforceable mechanism at the discretion of the County of Roanoke. Section 8.1-15 MONITORING AND INSPECTIONS. A. The land-disturbing activity is subject to monitoring and inspections by the County of Roanoke. These inspections will be used to determine if there is: 1. Compliance with the approved erosion and sediment control plan; 2. Compliance with the approved stormwater management plan; 3. Development, updating, and implementation of a pollution prevention plan; and 4. Development and implementation of any additional control measures necessary to address a TMDL. B. The land-disturbing activity is subject to periodic and documented inspections by the County of Roanoke in accordance with its Department-approved alternative inspection program. C. Permanent stormwater management facilities are subject to periodic and documented inspections by the County of Roanoke to determine if such facilities are adequately maintained and functioning, as designed. D. The County of Roanoke may utilize the inspection reports of the owner of a stormwater management facility as part of an inspection program established in subsection B of this section if the inspection is conducted by a person who is licensed as a professional engineer, architect, landscape architect, or land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1; a person who works under the direction and oversight of the licensed professional engineer, architect, landscape architect, or land surveyor; or a person who holds an appropriate certificate of competence from the Department. E. Stormwater management facilities designed to treat stormwater runoff primarily from an individual residential lot on which they are located and for which a recorded instrument is not required pursuant to 9VAC25-875-130, may be subject to periodic inspections by the County of Roanoke, or the County of Roanoke may conduct homeowner outreach and education or employ other methods targeted at promoting the long-term maintenance of such facilities. Section 8.1-16 HEARINGS. A. Any applicant or operator, or person subject to the requirements of this ordinance, aggrieved by any action of the County of Roanoke taken without a formal hearing, or by inaction of the County of Roanoke, may demand in writing a formal hearing by the County Administrator or his or her designee, provided a petition requesting such hearing is filed with the Administrator within 30 days after notice of such action is given by the Administrator. B. The hearings held under this Section shall be conducted by the County Administrator or his or her designee on behalf of the County of Roanoke Board of Supervisors at any time and place authorized by the County Administrator or his or her designee, and such hearings shall be held in a manner consistent with local hearing procedures. In the event the County Administrator does not designate another individual to be the Administrator of this Ordinance, then the County Administrator shall designate someone other than the County Administrator to conduct the hearings held under this Section. C. A verbatim record of the proceedings of such hearings shall be taken and filed with the Clerk to the County of Roanoke Board of Supervisors. Depositions may be taken and read as in actions at law. D. The County Administrator or his or her designee shall have power to issue subpoenas and subpoenas duces tecum, and at the request of any party shall issue such subpoenas. The failure of a witness without legal excuse to appear or to testify or to produce documents shall be acted upon by the County Administrator or his or her designee, whose action may include the procurement of an order of enforcement from the circuit court. Witnesses who are subpoenaed shall receive the same fees and reimbursement for mileage as in civil actions. E. During the review, the County Administrator or his or her designee shall consider evidence presented by all parties. After considering the evidence, the County Administrator’s (or his or her designee’s) decision shall be final. Section 8.1-17 APPEALS. Final decisions of the County Administrator or his or her designee, under this chapter, shall be conducted in accordance with local appeal procedures and shall be subject to judicial review by the Roanoke County Circuit Court, provided an appeal is filed within thirty (30) days from the date of any written decision adversely affecting the rights, duties, or privileges of any permit applicant, permittee, or person subject to any enforcement action under this chapter. Section 8.1-18 RIGHT OF ENTRY. A. Pursuant to all applicable law, the County of Roanoke or any duly authorized agent thereof, bearing proper credentials and identification, may, at reasonable times and under reasonable circumstances, enter any establishment or upon any property, public or private, which has a permit or a maintenance agreement, for the purpose of obtaining information or conducting surveys or investigations necessary in the enforcement of the provisions of this ordinance. B. If the Administrator has cause to believe an activity regulated under this ordinance is occurring without a permit, or if the person in charge of the property refuses to allow the Administrator to enter in accordance with subsection (A), then the Administrator may present sworn testimony to a magistrate or court of competent jurisdiction and request the issuance of an inspection warrant to enter the property for the purpose of making such inspection and investigation. The Administrator shall make a reasonable effort to obtain consent from the owner or person in charge of the property prior to seeking the issuance of an inspection warrant under this section. C. Pursuant to all applicable law, and in accordance with a performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement, the County of Roanoke or any duly authorized agent thereof, bearing proper credentials and identification, may, at reasonable times and under reasonable circumstances, also enter any establishment or upon any property, public or private, for the purpose of initiating or maintaining appropriate actions that are required by conditions imposed by the County of Roanoke on a land- disturbing activity when an owner, after proper notice, has failed to take acceptable action within the time specified. Section 8.1-19 ENFORCEMENT. A. If the Administrator determines that there is a failure to comply with the land disturbance approval or determines there is an unauthorized discharge, notice shall be served upon the operator or person responsible for carrying out the conditions of the land disturbance approval by any of the following: verbal warnings and inspection reports, notices of corrective action, consent special orders, and notices to comply. Written notices shall be served by registered or certified mail to the address specified in the application or by delivery at the site of the development activities to the agent or employee supervising such activities. 1. The notice shall specify the measures needed to comply with the conditions of the land disturbance approval and shall specify the time within which such measures shall be completed. Upon failure to comply within the time specified, a stop work order may be issued in accordance with Subsection 2 or the permit may be revoked by the Administrator. 2. If an operator or person responsible for carrying out the conditions of the land- disturbance approval fails to comply with a notice issued in accordance with this Section within the time specified, the Administrator may issue a stop work order requiring the owner, operator, person responsible for carrying out an approved plan, or the person conducting the land-disturbing activities without an approved plan or required land disturbance approval to cease all land- disturbing activities until the violation has ceased, or an approved plan and required land-disturbance approval are obtained, and specified corrective measures have been completed. Such orders shall be issued in accordance with the County of Roanoke’s enforcement procedures and this ordinance. Such orders shall become effective upon service on the person by certified mail, return receipt requested, sent to his/her address specified in the land records of the locality, or by personal delivery by an agent of the Administrator. However, if the Administrator finds that any such violation is grossly affecting or presents an imminent and substantial danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth or otherwise substantially impacting water quality, the Administrator may issue, without advance notice or hearing, an emergency order directing such person to cease immediately all land-disturbing activities on the site and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof, to such person, to affirm, modify, amend, or cancel such emergency order. If a person who has been issued an order is not complying with the terms thereof, the Administrator may institute a proceeding for an injunction, mandamus, or other appropriate remedy in accordance with Subsection 5.7.C. B. In addition to any other remedy provided by this Ordinance, if the Administrator or his designee determines that there is a failure to comply with the provisions of this Ordinance, they may initiate such informal and/or formal administrative enforcement procedures in a manner that is consistent with the County of Roanoke’s enforcement procedures and this ordinance. C. Any person violating or failing, neglecting, or refusing to obey any rule, regulation, ordinance, order, approved standard or specification, or any condition of the land- disturbance approval by the Administrator may be compelled in a proceeding instituted in the Circuit Court of Roanoke County by the County of Roanoke to obey same and to comply therewith by injunction, mandamus, or other appropriate remedy. Section 8.1-20 PENALTIES, INJUNCTIONS, AND OTHER LEGAL ACTIONS. A. A civil penalty may be imposed and a summons issued for violations that include but are not limited to the following, in accordance with § 62.1-44.15:63: 1. Commencement of land disturbing activity without Construction General Permit coverage from Department (i.e., no permit registration statement submitted) ($1,000 per day); 2. Commencement of land disturbing activity without preparation of a SWPPP ($500 per day); 3. Commencement of land disturbing activity with an incomplete SWPPP, or failure to properly amend a SWPPP to reflect changes in design, construction, operation, or maintenance that has a significant effect on the discharge of pollutants to surface waters and has not been previously addressed in the SWPPP ($300 per day); 4. State permit registration statement not posted or SWPPP not available for review ($300 per day); 5. Failure to comply with SWPPP requirements ($300 per day); 6. Commencement of land-disturbing activity without an approved erosion and sediment control plan or land-disturbance approval pursuant to Section 3.2 ($1,000 per day); 7. Failure to install stormwater BMPs or erosion and sediment controls ($300 per day); 8. Failure to comply with the minimum standards in 9VAC25-875-560 ($300 per day); 9. Improperly installed or improperly maintained stormwater BMPs or erosion and sediment controls ($300 per day); 10. Operational deficiencies ($300 per day); 11. Failure to conduct and document required inspections ($300 per day); 12. Incomplete, improper, or missed inspections, including lack of proper signature ($300 per day); 13. Discharges not in compliance with the requirements of Section 9VAC25-880- 70 of the Construction General Permit ($300 per day); 14. Failure to obey a Stop Work Order ($1,000 per day); and 15. Failure to stop work when permit is revoked ($1,000 per day). B. Each day during which the violation is found to have existed shall constitute a separate offense. However, in no event shall a series of specified violations arising from the same operative set of facts result in civil penalties which exceed a total of ten thousand dollars ($10,000.00), except that a series of violations arising from the commencement of land-disturbing activities without an approved plan for any site shall not result in civil penalties which exceed a total of ten thousand dollars ($10,000.00). The assessment of civil penalties according to this schedule shall be in lieu of criminal sanctions and shall preclude the prosecution of such violation as a misdemeanor under subsection (a) of this section. C. The Administrator may issue a summons for collection of the civil penalty and the action may be prosecuted in the appropriate court. 1. The Administrator, or his or her assignee, shall serve upon any owner or permittee in violation of this chapter, a summons notifying the owner or permittee of said violation. If unable to serve the owner or permittee in person, the County may notify by summons an owner or permittee committing or suffering the existence of a violation by certified, return receipt requested mail, of the infraction. The Roanoke County Sheriff’s Office may also deliver the summons. The summons shall contain the following information: i. The name and address of the person charged. ii. The nature of the violation and chapter provision(s) being violated. iii. The location, date, and time that the violation occurred, or was observed. iv. The amount of the civil penalty assessed for the violation. v. The manner, location, and time that the civil penalty may be paid to the County. vi. The right of the recipient of the summons to elect to stand trial for the infraction. 2. The summons shall provide that any person summoned for a violation may, within five (5) days of actual receipt of the summons or, within ten (10) days from the date of mailing of the summons, elect to pay the civil penalty by making an appearance in person, or in writing by mail to the County Treasurer's Office and, by such appearance, may enter a waiver of trial, admit liability, and pay the civil penalty established for the violation charged and provide that a signature to an admission of liability shall have the same force and effect as a judgment in court; however, an admission shall not be deemed a criminal conviction for any purpose. 3. If a person charged with a violation does not elect to enter a waiver of trial and admit liability, the County shall cause the sheriff of the County to serve the summons on the person charged in the manner prescribed by law. The violation shall be tried in General District Court in the same manner and with the same right of appeal as provided for in Title 8.01 of the Code of Virginia. In any trial for a scheduled violation authorized by this section, it shall be the burden of the County to show the liability of the violator by the preponderance of the evidence. Any admission of liability or finding of liability shall not be a criminal conviction for any purpose. 4. The remedies provided for in this section are cumulative, and are not exclusive and, except as provided above, shall be in addition to any other remedies by law. 5. The owner or permittee may pay the civil penalty to the treasurer prior to the trial date, provided he also pays necessary court costs in addition to the civil penalty. 6. Within the period prescribed in (c), above, the owner or permittee, may contest the violation by presenting it to Administrator, who shall certify the contest in writing, on an appropriate form, to the General District Court. 7. Failure to pay the civil penalty, or to contest the violation, within the time period prescribed in (c), above, shall result in the immediate issuance of a stop work order and the revocation of the permit, if any. D. The owner of property which has sustained damage, or which is in imminent danger of being damaged, may apply to the Roanoke County Circuit Court to enjoin a violation or a threatened violation of Va. Code §§ 62.1-44.15:55, 62.1- 44.15:56, without the necessity of showing that an adequate remedy at law does not exist. E. Civil penalty enumerated. Without limiting the remedies which may be obtained in this section, any person violating or failing, neglecting, or refusing to obey any injunction, mandamus or other remedy obtained pursuant to this section shall be subject, in the discretion of the court, to a civil penalty not to exceed two thousand dollars ($2,000.00) for each violation. A civil action for such violation or failure may be brought by the County of Roanoke. Any civil penalties assessed by a court shall be paid into the treasury of the County of Roanoke, except that where the violator is the locality itself, or its agent, the court shall direct the penalty to be paid into the state treasury F. With the consent of any person who has violated or failed, neglected, or refused to obey any regulation or condition of a permit or any provision of this chapter, the County may provide for the payment of civil charges for violations in specific sums, not to exceed the limit specified in subsection (b)(2) of this section. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under subsection (b) or (e). G. In addition to the penalties provided under this chapter, any person who violates any provision of this chapter may be liable to the County of Roanoke in a civil action for damages. H. In imposing a civil penalty pursuant to this Subsection, the court may consider the degree of harm caused by the violation and the economic benefit to the violator from noncompliance. I. Any civil penalties assessed by a court because of a summons issued by the County of Roanoke shall be paid into the treasury of the County of Roanoke to be used for the purpose of minimizing, preventing, managing, or mitigating pollution of the waters of the locality and abating environmental pollution therein in such manner as the court may, by order, direct. J. Notwithstanding any other civil or equitable remedy provided by this ordinance or by law, any person who willfully or negligently violates any provision of this ordinance, any order of the Administrator, any condition of the land-disturbance approval, or any order of a court shall be guilty of a misdemeanor punishable by confinement in jail for not more than 12 months or a fine of not less than $2,500 nor more than $32,500, or both. Section 8.1-21 FEES. A. Fees to cover costs associated with implementation of a VESMP related to land disturbing activities and issuance of general permit coverage and VESMP authority permits shall be imposed in accordance with Table 1. [NOTE: Such fee attributes include the costs associated with plan review, VESMP registration statement review, permit issuance, state-coverage verification, inspections, reporting, and compliance activities associated with land- disturbing activities as well as state program oversight costs.] When a site or sites has/have been purchased for development within a previously permitted common plan of development or sale, the applicant shall be subject to fees (“total fee to be paid by applicant” column) in accordance with the disturbed acreage of their site or sites according to Table 1. Table 1: Fees for permit issuance Fee type Total fee to be paid by applicant (includes both the County of Roanoke and Department portions, where Department portion of “total fee to be paid by Land-Disturbing Activity (not subject to General Permit coverage; sites within designated areas of Chesapeake Bay Act localities with land-disturbance acreage equal to or greater than 2,500 square feet and less $290 $0 General/Stormwater Management Construction Activity/Land Clearing (Areas within common plans of development or sale $290 $81 General /Stormwater Management - Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal $2,700 $756 General/Stormwater Management - Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal $3,400 $952 General/Stormwater Management - Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to $4,500 $1,260 General/Stormwater Management - Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to $6,100 $1,708 General/Stormwater Management - Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to $9,600 $2,688 * If the project is completely administered by the Department, such as may be the case for a state or federal project or projects covered by individual permits, then the entire applicant fee shall be paid to the Department. B. Fees for the modification or transfer of registration statements from the general permit issued by the department shall be imposed in accordance with Table 2. If the general permit modifications result in changes to stormwater management plans that require additional review by [Locality], such reviews shall be subject to the fees set out in Table 2. The fee assessed shall be based on the total disturbed acreage of the site. In addition to the general permit modification fee, modifications resulting in an increase in total disturbed acreage shall pay the difference in the initial permit fee paid and the permit fee that would have applied for the total disturbed acreage in Table 1. Table 2: Fees for the modification or transfer of registration statements for the General Permit for Discharges of Stormwater from Construction Activities Type of Permit Fee Amount General/Stormwater Management - Activity/Land $20 General/Stormwater Management - Activity/Land Clearing (Sites or areas within common plans of development $200 General/Stormwater Management - Activity/Land Clearing (Sites or areas within common plans of development $250 General/Stormwater Management - Activity/Land Clearing (Sites or areas within common plans of development $300 General/Stormwater Management - Activity/Land Clearing (Sites or areas within common plans of development $450 General/Stormwater Management - Activity/Land $700 C. The following annual permit maintenance shall be imposed in accordance with Table 3, including fees imposed on expired permits that have been administratively continued. With respect to the general permit, these fees shall apply until the permit coverage is terminated. [NOTE: Fees specified in this Subsection go to the County of Roanoke.] Table 3: Permit Maintenance Fees Land-Disturbing Activity (not subject to General Permit coverage; sites within designated areas of Chesapeake Bay Act localities with land-disturbance acreage $50 General/Stormwater Management - Activity/Land $50 General/Stormwater Management - Activity/Land Clearing (Sites or areas within common plans of development $400 General/Stormwater Management - Activity/Land Clearing (Sites or areas within common plans of development $500 General/Stormwater Management - Activity/Land Clearing (Sites or areas within common plans of development $650 General/Stormwater Management - Activity/Land Clearing (Sites or areas within common plans of development $900 General/Stormwater Management - Activity/Land $1,400 General permit coverage maintenance fees shall be paid annually to the County of Roanoke by the anniversary date of general permit coverage. No permit will be reissued or automatically continued without payment of the required fee. General permit coverage maintenance fees shall be applied until a Notice of Termination is effective. D. The fees set forth in Subsections A through C of this section, shall apply to: 1. All persons seeking coverage under the general permit. 2. All permittees who request modifications to or transfers of their existing registration statement for coverage under a general permit. 3. Persons whose coverage under the general permit has been revoked shall apply to the Department for an Individual Permit for Discharges of Stormwater from Construction Activities. E. Permit and permit coverage maintenance fees outlined under Section 5.8 may apply to each general permit holder. F. No general permit application fees will be assessed to: 1. Permittees who request minor modifications to general permits as defined in Section 1.2 of this ordinance. Permit modifications at the request of the permittee resulting in changes to stormwater management plans that require additional review by the County of Roanoke shall not be exempt pursuant to this Section. 2. Permittees whose general permits are modified or amended at the initiative of the Department, excluding errors in the registration statement identified by the County of Roanoke or errors related to the acreage of the site. G. All incomplete payments will be deemed as non-payments, and the applicant shall be notified of any incomplete payments. Interest may be charged for late payments at the underpayment rate set forth in § 58.1-15 of the Code of Virginia and is calculated monthly at the applicable periodic rate. A 10% late payment fee shall be charged to any delinquent (over 90 days past due) account. The County of Roanoke shall be entitled to all remedies available under the Code of Virginia in collecting any past due amount. Section 8.1-22 PERFORMANCE BOND. A. Prior to issuance of any permit, the applicant shall be required to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the County of Roanoke Attorney, to ensure that measures could be taken by the County of Roanoke at the applicant’s expense should he/she fail, after proper notice, within the time specified to initiate or maintain appropriate actions which may be required of him/her by the permit conditions as a result of his/her land disturbing activity. If the County of Roanoke takes such action upon such failure by the applicant, the County of Roanoke may collect from the applicant for the difference should the amount of the reasonable cost of such action exceed the amount of the security held, if any. Within 60 days of the completion of the requirements of the permit conditions, such bond, cash escrow, letter of credit or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated. CHAPTER 23 – REPEALED IN ENTIRETY AND RESERVED 2. That Chapter 23 of the Roanoke County Code shall be repealed in its entirety. 3. That this ordinance shall become effective immediately upon its adoption. Page 1 of 2 ACTION NO. ITEM NO. E.1 AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY, VIRGINIA HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER MEETING DATE: June 11, 2024 AGENDA ITEM: Confirmation of appointment to the Roanoke Valley Alleghany Regional Commission (Citizen Appointment, At - Large) SUBMITTED BY: Rhonda Perdue Chief Clerk to the Board of Supervisors APPROVED BY: Richard L. Caywood County Administrator ISSUE: Confirmation of appointment. BACKGROUND: Roanoke Valley Allegheny Regional Commission: Mr. Osborne’s term will expire June 30, 2024. It is the consensus of the Board to reappoint Mr. J. Lee E. Osborne to an additional three -year term to expire June 30, 2027. Page 2 of 2 DISCUSSION: There is no discussion associated with this agenda item. FISCAL IMPACT: There is no discussion associated with this agenda item. STAFF RECOMMENDATION: Staff recommends confirmation of this appointment. Page 1 of 1 AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER ON TUESDAY, JUNE 11, 2024 RESOLUTION APPROVING AND CONCURRING IN CERTAIN ITEMS SET FORTH ON THE BOARD OF SUPERVISORS AGENDA FOR THIS DATE DESIGNATED AS ITEM F - CONSENT AGENDA BE IT RESOLVED by the Board of Supervisors of Roanoke County, Virginia, as follows: That the certain section of the agenda of the Board of Supervisors for June 11, 2024, designated as Item F - Consent Agenda be, and hereby is, approved and concurred in as to each item separately set forth in said section designated Items 1 through 5 inclusive, as follows: 1. Approval of minutes – May 16, 2024 2. Approval of minutes – May 28, 2024 3. Resolution requesting acceptance of Ridge Top Road (Route 876) and Almond Road (Route 877) into the Virginia Department of Transportation Secondary System of State Highways 4. Request to accept and allocate funds in the amount of $31,076.10 from the Commonwealth of Virginia for the Library of Virginia's Records Preservation Program 5. Ordinance approving an intergovernmental agreement for operation of the Roanoke Regional Fire Training Center (Second Reading) Page 1 of 1 Strategic Planning Session of the Board of Supervisors Location: Explore Park Time: 8:00 AM- 3:00 PM A. OPENING CEREMONIES 1. Roll Call Present: Supervisors Mahoney, North, Radford, Shepherd, Hooker Absent: None B. NEW BUSINESS 1. The Board of Supervisors met to discuss the Strategic Plan for Roanoke County. Note: Supervisor Radford left at approximately 2:00 PM C. ADJOURNMENT Action No. 051624-1 Supervisor Hooker moved to adjourn the meeting. Supervisor Mahoney seconded the motion. Motion approved. Ayes: Supervisors Hooker, Mahoney, Shepherd, North Nays: None Submitted by: Approved by: __________________________ __________________________ Richard L. Caywood Phil C. North Clerk to the Board of Supervisors Chairman Roanoke County Board of Supervisors Minutes May 16, 2024 Page 1 of 9 A. OPENING CEREMONIES 1. Roll Call Present: Supervisors Radford, Hooker, Mahoney, Shepherd, North Absent: None B. REQUESTS TO POSTPONE, ADD TO OR CHANGE THE ORDER OF AGENDA ITEMS C. PROCLAMATIONS, RESOLUTIONS, RECOGNITIONS AND AWARDS 1. Recognition of Caitlin Gills for the Virginia Public Library Directors Association Outstanding Website Award (Jim Blanton, Director of Library Services) Recognition given to Caitlin Gills. D. NEW BUSINESS Action No. 052824-1 Item D.1 1. Resolution adopting 1) the fiscal year 2024-2025 Operating and Capital Budget Revenues and Expenditures for the County of Roanoke, Virginia and 2) the fiscal years 2025-2034 Capital Improvement Program for the County of Roanoke, Virginia and 3) the fiscal year 2024-2025 Fee Compendium (Steve Elliott, Budget Administrator) Supervisor Mahoney moved to approve the proposed resolution adopting 1) the fiscal year 2024-2025 Operating and Capital Budget Revenues and Expenditures for the County of Roanoke, Virginia, and 2) the fiscal years 2025-2034 Capital Improvement Program for the County of Roanoke, Virginia and 3) the fiscal year 2024-2025 Fee Compendium. Supervisor Hooker seconded the motion. Motion Approved. Roanoke County Board of Supervisors Minutes May 28, 2024 Page 2 of 9 Ayes: Supervisors Radford, Hooker, Mahoney, Shepherd, North Nays: None E. FIRST READING OF ORDINANCES Action No. 052824-2 Item E.1 1. Ordinance approving an intergovernmental agreement for operation of the Roanoke Regional Fire Training Center (First Reading and Request for Second Reading) (Rachel Lower, Deputy County Attorney and Travis Griffith, Fire and Rescue Chief) Supervisor Radford moved to approve the first reading of this ordinance and scheduling the second reading and public hearing for June 11, 2024. Supervisor Mahoney seconded the motion. Motion approved. Ayes: Supervisors Radford, Hooker, Mahoney, Shepherd, North Nays: None F. SECOND READING OF ORDINANCES Action No. 052824-3.a.b Item F.1a-b Action No. 052824-3.a Item F.1a 1. Ordinances to appropriate funds for: (a) Fiscal year 2024-2025 operations budget and approval of the Classification and Pay Plan for fiscal year 2024-2025 for the County of Roanoke, Virginia Supervisor Hooker moved to approve the proposed ordinance appropriating funds for the fiscal year 2024-2025 operations budget and approval of the classification and pay plan for fiscal year 2024-2025. Ayes: Supervisors Radford, Hooker, Mahoney, Shepherd, North Nays: None Action No. 052824-3b Item F.1b (b) Fiscal year 2024-2025 capital budget for the County of Roanoke, Virginia. Supervisor Mahoney moved to approve the proposed ordinance appropriating funds for the fiscal year 2024-2025 capital budget. Motion approved. Ayes: Supervisors Radford, Hooker, Mahoney, Shepherd, North Nays: None Page 3 of 9 G. SECOND READINGS OF ORDINANCES AND PUBLIC HEARINGS Action No. 052824-4 Item G.1 1. Ordinance amending Chapter 7 (Building Regulations), Article V (Fees), Sections 7-71 (Building Permit Fees) and 7-72 (Trade Permit Fees) of the Roanoke County Code (Second Reading) (Peter S. Lubeck, County Attorney) Supervisor Radford moved to adopt the ordinance. Supervisor Shepherd seconded the motion. Motion approved. Ayes: Supervisors Radford, Hooker, Mahoney, Shepherd, North Nays: None H. CONSENT AGENDA Action No. 052824-5.a-j ALL MATTERS LISTED UNDER THE CONSENT AGENDA ARE CONSIDERED BY THE BOARD TO BE ROUTINE AND WILL BE ENACTED BY ONE RESOLUTION IN THE FORM OR FORMS LISTED BELOW. IF DISCUSSION IS DESIRED, THAT ITEM WILL BE REMOVED FROM THE CONSENT AGENDA AND WILL BE CONSIDERED SEPARATELY Action No. 052824-5. Item H.1 1. Approval of minutes – May 14, 2024 Action No. 052824-5.b Item H.2 2. Ordinance accepting funds in the amount of $500,000 from the STBG/carbon reduction program, appropriating such funds to the County’s grant fund for the construction of the Roanoke River Greenway through Explore Park, and authorizing an amendment to the Professional Services for Design of the Roanoke River Greenway through Explore Park Limited Services Contract with AECOM Technical Services, Inc. (VDOT UPC 113567), Vinton Magisterial District. (Second Reading) Action No. 052824-5.c Item H.3 3. Ordinance accepting and appropriating funds in the amount of $30,000 from the Virginia Department of Rail and Public Transportation through the Transit Ridership Incentive Program (TRIP). (Second Reading) Page 4 of 9 Action No. 052824-5.d Item H.4 4. Ordinance to accept and appropriate funds from Roanoke City in the amount of $101,402.92 and Franklin County in the amount of $101,402.92 for a total of $202,805.84 for the 911 GADI Genesis Aided Dispatch Interface capital project. (Second Reading) Action No. 052824-5.e Item H.5 5. The petition of Evelyn Liu to obtain a special use permit to operate a short-term rental on approximately 2.04 acres of land zoned R-1, Low Density Residential District, located at 4058 Keagy Road, Windsor Hills Magisterial District (First Reading and Request for Second Reading and Public Hearing) Action No. 052824-5.f Item H.6 6. The petition of Franco and Dawn DeBartolo to obtain a special use permit to operate a short-term rental on approximately 2.99 acres of land zoned R-1, Low Density Residential District, located at 3663 Chaparral Drive, Cave Spring Magisterial District (First Reading and Request for Second Reading and Public Hearing) Action No. 052824-5.g Item H.7 7. The petition of Neil Aneja to obtain a special use permit to operate a short-term rental on approximately 0.30 acre of land zoned R-1, Low Density Residential District, located at 2726 White Pelican Lane, Cave Spring Magisterial District (First Reading and Request for Second Reading and Public Hearing) Action No. 052824-5.h Item H.8 8. The petition of Reed Road Solar 1, LLC to obtain a special use permit for a major utility service (solar farm) on approximately 36.48 acres of land zoned AR Agricultural/Residential District, located at 9150 Reed Road, Windsor Hills Magisterial District (First Reading and Request for Second Reading and Public Hearing) Action No. 052824-5.i Item H.9 9. The petition of Roanoke Valley Holdings LLC to remove a proffered condition on approximately 50.8 acres of land zoned R-1C, Low Density Residential District with conditions, in order to develop a residential subdivision, located near the 6200 block of Crumpacker Drive, Hollins Magisterial District (First Reading and Request for Second Reading and Public Hearing) Page 5 of 9 Action No. 052824-5.j Item H.10 10. The petition of Robert and Jerri Jackson to obtain a special use permit to operate a short-term rental on approximately 0.5768 acre of land zoned R-1, Low Density Residential District, located at 1727 Mountain Heights Drive, Catawba Magisterial District (First Reading and Request for Second Reading and Public Hearing) Supervisor Mahoney moved to adopt all matters on the consent agenda. Supervisor Hooker seconded the motion. Motion approved. Ayes: Supervisors Radford, Hooker, Mahoney, Shepherd, North Nays: None I. CITIZENS' COMMENTS AND COMMUNICATIONS - None J. REPORTS Action No. 052824-6 Item J.1-6 1. Unappropriated, Board Contingency and Capital Reserves Report 2. Outstanding Debt Report 3. Comparative Statement of Budgeted and Actual Revenues as of April 30, 2024 4. Comparative Statement of Budgeted and Actual Expenditures and Encumbrances as of April 30, 2024 5. Accounts Paid – April 2024 6. Statement of the Treasurer’s Accountability per Investment and Portfolio Policy, as of April 30, 2024 Supervisor Radford moved to receive and file the reports that have been included with the agenda under Item J. Supervisor North seconded the motion. Motion approved. Ayes: Supervisors Radford, Hooker, Mahoney, Shepherd, North Nays: None K. WORK SESSION 1. VA250 Update (Madeline L. Hanlon, Assistant to the County Administrator, Kelly Brammer, Assistant Director of Tourism, Kaelyn Spickler, Executive Assistant) Page 6 of 9 L. CLOSED MEETING, pursuant to the Code of Virginia as follows: Action No. 052824-7 1. Section 2.2-3711 (A)(3) of the Code of Virginia, to discuss or consider the acquisition of real property in the Cave Spring Magisterial District for a public purpose, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body 2. Section 2.2-3711(A)(5) of the Code of Virginia, for discussion concerning a prospective business or industry or the expansion of an existing business or industry where no previous announcement has been made of the business’ or industry’s interest in locating or expanding its facilities in the community. Specifically, the Board will discuss potential business location or expansion in the Cave Spring, and Catawba Magisterial Districts. Supervisor North moved to go to closed session. Supervisor Hooker seconded the motion. Motion approved. Ayes: Supervisors Radford, Hooker, Mahoney, Shepherd, North Nays: None M. CERTIFICATION RESOLUTION Action No. 052824-8 In the closed session just concluded, nothing was discussed except the matter which was identified in the motion to convene in closed session. Only those matters lawfully permitted to be discussed under the Virginia Freedom of Information Act were discussed. Supervisor Hooker moved to adopt the certification resolution. Supervisor Mahoney seconded the motion. Motion adopted. Ayes: Supervisors Radford, Hooker, Mahoney, Shepherd, North Nays: None EVENING SESSION – 7:00 PM N. PUBLIC HEARING AND SECOND READING OF ORDINANCES Action No. 052824-9 Item N.1 1. The petition of ABoone Real Estate, Inc. to rezone approximately 16.27 acres of land from R-3C, Medium Density Multi-Family Residential District with conditions, to C-2C, High Intensity Commercial with conditions, to obtain a special use Page 7 of 9 permit for mini-warehouse on approximately 19.73 acres zoned C-2C, High Intensity Commercial District with conditions, and to amend the proffered conditions on 32.323 acres of land zoned C-2C, High Intensity Commercial District with conditions, and R-3C, Medium Density Multi-Family Residential District with conditions, located in the 1300 and 1400 blocks of Edgebrook Road, Catawba Magisterial District (Philip Thompson, Director of Planning) Supervisor Hooker found that the proposed special use permit: 1. Meets the requirements of Section 30-19-1 of the Roanoke County Code and that the proposed special use conforms with the standards set forth in article IV, use and design standards of the Roanoke County Zoning Ordinance; 2. Is partly in conformance with the Roanoke County Comprehensive Plan, and partly inconsistent with the Roanoke County Comprehensive Plan; and 3. Will have a minimum adverse impact on the surrounding neighborhood and community. Therefore, moved that the Board approve the petition to obtain a special use permit. AND Supervisor Hooker also found that the proposed rezoning requests to A) rezone approximately 16.27 acres of land from R-3C to C-2C, and B) Amend the proffered conditions on 32.323 acres of land zoned C-2C and R-3C: 1. Are partly consistent with the Roanoke County Comprehensive Plan, and partly inconsistent with the Roanoke County Comprehensive Plan, 2. Are good zoning practice, and 3. Will not result in substantial detriment to the community. Accordingly, Supervisor Hooker moved that the Board approve the rezoning requests as they have been requested, with the following amended proffered conditions to replace the previous proffered conditions from September 2022 on the entire 32.323 acres subject to this petition: 1. The townhomes and 2-story storage building shall be developed in substantial conformance with the Edgebrook Park Overall Development Plan (Exhibit B) dated March 22, 2024, prepared by Balzer and Associates, Inc. No grading or development shall take place in the areas designated as existing vegetation to remain as buffer, stream buffer or area to remain undisturbed as shown on the Edgebrook Park Overall Development Plan dated March 22, 2024, prepared by Balzer and Associates, Inc. Development of the remaining vacant areas of Commercial Area A and Commercial B shall be done in accordance with the applicable Roanoke County development regulations at the time of development and restricted to the uses stated in Proffer #3. 2. The maximum building height for any structure shall be 45 feet. Page 8 of 9 3. The Property shall be limited to the following uses: Commercial Area A - Mini-warehouse (Self-Storage) Only Commercial Area B - Office Uses - General Office; Medical Office; Laboratory; Commercial Uses - Personal Services; Restaurant, General (No Drive Through); Retail Sales; Veterinary Hospital/Clinic; and Mini-warehouse (Self-Storage). Supervisor Radford seconded the motion. Motion approved. Ayes: Supervisors Radford, Hooker, Mahoney, Shepherd, North Nays: None Action No. 052824-10 Item N.2 2. The petition of Ramseys and Jesica Sandoval to obtain a special use permit to operate a short-term rental on approximately 0.3794 acre of land zoned R-1, Low Density Residential District, located at 5207 North Spring Drive, Catawba Magisterial District (Philip Thompson, Director of Planning) Supervisor Hooker found that the proposed special use permit: 1. Meets the requirements of Section 30-19-1 of the Roanoke County Code and that the proposed special use conforms with the standards set forth in article IV, use and design standards of the Roanoke County Zoning Ordinance; 2. Is in conformance with the Roanoke County Comprehensive Plan; and 3. Will have a minimum adverse impact on the surrounding neighborhood and community. Therefore, moved that the Board approve the petition to obtain a special use permit, with the following conditions: 1. The short-term rental shall be limited to the lower level of the existing residential dwelling (approximately 1,800 square feet). 2. The number of overnight guests shall not exceed six (6) people. 3. One (1) off-street parking space shall be provided for each guestroom in addition to parking spaces required for the principal dwelling. All parking shall be provided on-site and shall be located in driveways and other designated approved parking areas. 4. The property owner shall provide and maintain in good working order every smoke detector, carbon monoxide detector, and fire extinguisher required by law. Exits required by law shall not be obstructed. 5. The property must maintain a residential appearance. No signage shall be allowed with the short-term rental use. 6. No events such as parties, banquets, weddings, receptions, meetings, or similar events shall be allowed with the short-term rental use. Page 9 of 9 7. A business license shall be obtained from the Commissioner of Revenue for the short-term rental use. Supervisor Radford seconded the motion. Motion approved. Ayes: Supervisors Radford, Hooker, Mahoney, Shepherd, North Nays: None O. CITIZEN COMMENTS AND COMMUNICATIONS - None P. REPORTS AND INQUIRIES OF BOARD MEMBERS 1. David F. Radford 2. Tammy E. Shepherd 3. Martha B. Hooker 4. Paul M. Mahoney 5. Phil C. North Supervisors were offered the opportunity to share comments and provide updates to their peers and the public on items of interest to them. Q. ADJOURNMENT Action No. 052824-11 Supervisor Radford moved to adjourn the meeting. Supervisor Hooker seconded the motion. Motion approved. Ayes: Supervisors Radford, Hooker, Mahoney, Shepherd, North Nays: None Submitted by: Approved by: __________________________ __________________________ Richard L. Caywood Phil C. North Clerk to the Board of Supervisors Chairman Page 1 of 2 ACTION NO. ITEM NO. F.4 AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY, VIRGINIA HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER MEETING DATE: June 11, 2024 AGENDA ITEM: Resolution requesting acceptance of Ridge Top Road (Route 876) and Almond Road (Route 877) into the Virginia Department of Transportation Secondary System of State Highways SUBMITTED BY: Megan G. Cronise Assistant Director of Planning APPROVED BY: Richard L. Caywood County Administrator ISSUE: Resolution to request the addition of Ridge Top Road (Route 876) and Almond Road (Route 877) in the Cave Spring Magisterial District to the Virginia Department of Transportation (VDOT) Secondary System of State Highways. BACKGROUND: The Fallowater Lane Extension project reconstructed an existing private driveway to improve access to the area designated as The Ridges in the 419 Town Center Plan. The private driveway and Almond Road were constructed to VDOT standards and connect to Chevy Road, an existing VDOT roadway. A sidewalk was constructed alongside the roadway from Route 419 to Almond Road. The roadway commonly known as Fallowater Lane Extension was named to Ridge Top Road to meet E-911 requirements. DISCUSSION: Roadway construction is complete. VDOT has inspected and approved the improvements. The goal of the project was to upgrade the private driveway and Almond Road to VDOT standards for acceptance into the Secondary System of State Highways. FISCAL IMPACT: Page 2 of 2 There is no fiscal impact associated with this agenda item. All project funds were appropriated in previous actions. STAFF RECOMMENDATION: Staff recommends that the Board of Supervisors approve the resolution requesting VDOT add Ridge Top Road to the Secondary System of State Highways. COMMONWEALTH OF VIRGINIA DEPARTMENT OF TRANSPORTATION Form AM 4.3 Form AM 4.3 (Rev 05/24/2024) by Resolution of the governing body adopted 6/11/2024 In Roanoke County ICR ID: 39906558 SSAR Report of Changes in the Secondary System of State Highways CHANGE TYPE RTE NUM & STREET NAME CHANGE DESCRIPTION FROM TERMINI TO TERMINI LENGTH NUMBER OF LANES RECORDAT ION REFERENC E ROW WIDTH Addition Rt. 876 - Ridge Top Road VDOT Project §33.2 -705 Intersection with Electric Road/Route 419 Intersection with Almond Road 0.1640 2 40 Addition Rt. 877 - Almond Road VDOT Project §33.2 -705 Intersection with Ridge Top Road Intersection with Chevy Road/Route 799 0.0490 2 40 Addition Rt. 877 - Almond Road VDOT Project §33.2 -705 Intersection with Chevy Road/Route 799 End of State Maintenance along Almond Road 0.0090 2 40 The following VDOT Form AM-4.3 is hereby attached and incorporated as part of the governing body's resolution for changes to the secondary system of state highways. A Copy Testee Signed (County Official):__________________________________________________________ Project/Subdivision: Ridge Top Rd & Almond Rd Street Acceptance AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER, ON TUESDAY, JUNE 11, 2024 RESOLUTION REQUESTING ACCEPTANCE OF RIDGE TOP ROAD (ROUTE 876) AND ALMOND ROAD (ROUTE 877) INTO THE VIRGINIA DEPARTMENT OF TRANSPORTATION SECONDARY SYSTEM OF STATE HIGHWAYS WHEREAS, the streets described on the attached Form AM-4.3, fully incorporated herein by reference, are shown on plats recorded in the Clerk's Office of the Circuit Court of Roanoke County; and WHEREAS, the representative for the Virginia Department of Transportation has advised this Board that the street(s) meet the requirements established by the Virginia Department of Transportation’s Subdivision Street Requirements; and NOW, THEREFORE, BE IT RESOLVED, this Board requests the Virginia Department of Transportation to add the street(s) described on the attached Form AM- 4.3 to the secondary system of state highways, pursuant to §33.2-705, Code of Virginia, and the Department's Subdivision Street Requirements, after receiving a copy of this resolution. BE IT FURTHER RESOLVED, this Board guarantees a clear and unrestricted right-of-way, as described, and any necessary easements. BE IT FURTHER RESOLVED, that a certified copy of this resolution be forwarded to the Residency Engineer for the Virginia Department of Transportation. BE IT FURTHER RESOLVED, this Board hereby guarantees the performance of the street(s) requested herein to become a part of the State maintained secondary system of state highways for a period of one year from the date of the acceptance of the referenced streets by VDOT into the secondary system of state highways. This Board will reimburse all costs incurred by VDOT to repair faults in the referenced streets and related drainage facilities associated with workmanship or materials as determined exclusively by VDOT. Page 1 of 2 ACTION NO. ITEM NO. F.5 AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY, VIRGINIA HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER MEETING DATE: June 11, 2024 AGENDA ITEM: Request to accept and allocate funds in the amount of $31,076.10 from the Commonwealth of Virginia for the Library of Virginia's Records Preservation Program SUBMITTED BY: Lindsey Ayers Deputy Clerk II APPROVED BY: Richard L. Caywood County Administrator ISSUE: Acceptance and allocation of a grant in the amount of $31,076.10 from the Commonwealth of Virginia for the Library of Virginia's Records Preservation Program BACKGROUND: The Library of Virginia administers and oversees the Circuit Court Records Preservation Program (CCRP) to provide assistance to Circuit Courts. This program is designed to help localities in restoring old records and creating microfilm and/or digital copies of those records. Funding is handled in one cycle each year for this program and requires an application to be filed each time to be considered for an award. The awards are selected by the CCRP board with consideration given to the historical, informational and administrative value of the records and the soundness of the proposed project. DISCUSSION: The Clerk of Circuit Court's Office received a grant from the Library of Virginia's Records Preservation Program. This grant funding will be used to repair Land Record Road Map Books. Page 2 of 2 FISCAL IMPACT: Grant funds totaling $31,076.10 from the Commonwealth of Virginia provides one hundred percent (100%) funding. No County funds are required. STAFF RECOMMENDATION: Staff recommends accepting and allocating grant funds in the amount of $31,076.10 from the Commonwealth of Virginia to the Clerk of Circuit Court for the Virginia Circuit Court Records Preservation Program to the Grant Fund. Page 1 of 2 ACTION NO. ITEM NO. F.6 AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY, VIRGINIA HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER MEETING DATE: June 11, 2024 AGENDA ITEM: Ordinance approving an intergovernmental agreement for operation of the Roanoke Regional Fire Training Center SUBMITTED BY: C. Travis Griffith Chief of Fire and Rescue APPROVED BY: Richard L. Caywood County Administrator ISSUE: The current intergovernmental agreement with the City of Roanoke and the City of Salem for operation of the Roanoke Regional Fire Training Center is set to expire on June 30, 2024 and a new agreement needs to be executed. BACKGROUND: Since 1999, Roanoke County, the City of Roanoke, and the City of Salem have operated a multi-jurisdictional training center for fire and emergency services personnel in order to maximize training opportunities, combine resources, and efficiently utilize time of training staff. The three jurisdictions entered into an agreement on March 31, 1999 to set forth the terms, conditions, and shared obligations of the parties with respect to construction, maintenance, and operation of the training center. The Town of Vinton was an original participant to the 1999 agreement, but subsequently it was decided that Roanoke County would assume direction and control of fire and emergency medical services for the Town of Vinton. The 1999 agreement was set to expire on April 1, 2024, but was extended by agreement of the parties and will now expire on June 30, 2024. DISCUSSION: Page 2 of 2 The attached “Roanoke Regional Training Center Agreement” was drafted by the Roanoke County Attorney’s Office, and has been reviewed and approved by the participating localities: Roanoke County, Roanoke City, and the City of Salem. The proposed agreement outlines: · An effective date of July 1, 2024, with an initial term of three (3) years and an option to extend for an additional two (2) years; · Roanoke County’s continued ownership of the land and improvements on Kessler Mill Road which house the training center; · A cost sharing allocation for operating costs to be as follows: Roanoke County - 48%, Roanoke City - 44%, and City of Salem - 8%; · The total annual operating costs of the center to be $120,000, to be shared by the participating localities pursuant to the cost sharing allocation, or more specifically as follows: Roanoke County - $57,600, Roanoke City - $52,800, City of Salem - $9,600; · Roanoke County’s obligation to serve as the fiscal agent for the training center; · Roanoke County’s obligation to maintain general liability insurance on the training center; · Other general budget and fiscal matters; · Membership and rules of the Training Center Committee, which is made up of members from each locality; and · Provisions for the withdrawal of a party. There have been no changes to the proposed agreement since staff presented Board Members with an updated draft agreement at the May 28th Board of Supervisors meeting. FISCAL IMPACT: Roanoke County’s share of the operating cost of the training center shall be $57,600 annually, and Roanoke County’s share of additional costs of managing the training center (i.e. utilities, maintenance, snow removal, costs to replace equipment) shall be 48% of such cost. Roanoke County is also obligated to carry general liability insurance for the training center. STAFF RECOMMENDATION: Staff recommends approval of the ordinance. Page 1 of 2 AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER ON TUESDAY, JUNE 11, 2024 ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT FOR OPERATION OF THE ROANOKE REGIONAL FIRE TRAINING CENTER WHEREAS, since 1999, Roanoke County, the City of Roanoke, and the City of Salem have operated a multi-jurisdictional training center for fire and emergency services personnel in order to maximize training opportunities, combine resources, and efficiently utilize time of training staff; and WHEREAS, the three jurisdictions entered into an agreement on March 31, 1999 to set forth the terms, conditions, and shared obligations of the parties with respect to construction, maintenance, and operation of the training center; and WHEREAS, the Town of Vinton was an original participant to the 1999 agreement, but subsequently it was decided that Roanoke County would assume direction and control of fire and emergency services for the Town of Vinton; and WHEREAS, the 1999 agreement was set to expire on April 1, 2024, but was extended by agreement of the parties and will now expire on June 30, 2024; and WHEREAS, the parties have negotiated a new agreement for continued operation of the Roanoke Regional Fire Training Center, which will have an effective date of July 1, 2024; and WHEREAS, Virginia Code § 15.2-1300 requires that agreements for the joint exercise of powers by political subdivisions be approved by ordinance; and WHEREAS, the first reading of this ordinance was held on May 28, 2024, and the second reading was held on June 11, 2024. Page 2 of 2 NOW, THEREFORE, BE IT ORDAINED by the Board of Supervisors of the County of Roanoke, Virginia, as follows: 1. The Board hereby approves the Roanoke Regional Training Center Agreement with an effective date of July 1, 2024 with the City of Roanoke and the City of Salem for the operation of a regional fire and rescue training center. 2. The County Administrator, Deputy County Administrator, or Assistant County Administrator, any of whom may act, are authorized to execute the Roanoke Regional Training Center Agreement. The form of the Roanoke Regional Training Center Agreement presented to the Board is hereby approved with such completions, omissions, insertions, and changes as the County Administrator or the County Attorney may approve, whose approval shall be evidenced conclusively by the execution thereof. 3. The County Administrator, Deputy County Administrator, or Assistant County Administrator, any of whom may act, are hereby authorized and directed to execute, as necessary, all other documents on behalf of the County and to take all such further action as any of them may deem necessary or desirable in connection with the establishment and operation of a regional fire and rescue training center. 4. This ordinance shall be effective from and after the date of its adoption. 1 ROANOKE REGIONAL TRAINING CENTER AGREEMENT THIS AGREEMENT (hereinafter referred to as “Agreement”) is made and entered into this ____ day of _____________, 2024, by and between the COUNTY OF ROANOKE (hereinafter referred to as “Roanoke County”), the CITY OF ROANOKE (hereinafter referred to as “Roanoke City”), and the CITY OF SALEM (hereinafter referred to as “Salem”) (hereinafter referred to collectively as the “parties” or “participating localities”), each of which is a political subdivision or municipality of the Commonwealth of Virginia. WITNESSETH: WHEREAS, the parties operate their own fire and emergency medical services departments and are responsible for the training of fire and emergency medical services personnel; and WHEREAS, the parties desire to operate a multi-jurisdictional training center for fire and emergency services personnel in order to maximize training opportunities, combine resources, and efficiently utilize time of training staff; and WHEREAS, the parties have operated a multi-jurisdictional training center for fire and emergency services personnel known as the Roanoke Regional Training Center (hereinafter the “Training Center”) located on a six-acre site at 1220 Kessler Mill Road, Salem, Virginia; and WHEREAS, the parties entered into an agreement on March 31, 1999, to set forth the terms, conditions, and shared obligations of the parties with respect to construction, maintenance, and operation of the Training Center; and WHEREAS, subsequent to the inception of the March 31, 1999 agreement, Roanoke County assumed direction and control of fire and emergency medical services for the Town of Vinton; and WHEREAS, the March 31, 1999 agreement between the parties was set to expire on April 1, 2024, but was extended by agreement of the parties and will now expire on June 30, 2024; and WHEREAS, the parties desire to enter into this Agreement for the future operation of the Roanoke Regional Training Center for fire and emergency medical services; and WHEREAS, the participating localities are authorized to enter into this Agreement jointly by ordinance pursuant to Virginia Code § 15.2-1300; and NOW, THEREFORE, for and in consideration of the mutual obligations and mutual benefits accruing to the participating localities from this Agreement, the Board of Supervisors of the County of Roanoke, the City Council of the City of Roanoke, and the City Council of the City of Salem agree upon the following terms: 2 ARTICLE I. TRAINING CENTER PROPERTY Sec. 1-1. Training Center Property. The multi-jurisdictional training center for fire and emergency services shall be known as the Roanoke Regional Training Center (hereinafter the “Training Center”) and shall herein include the real estate located at 1220 Kessler Mill Road, Salem, Virginia, the designated roadways leading immediately thereto, the utilities, the fire tower, the burn building, the training center, and all other physical structures and facilities located on the real estate located at 1220 Kessler Mill Road, Salem, Virginia used for the purpose of providing fire and emergency services training. Sec. 1-2. Ownership of the Training Center Property. Roanoke County shall make the real estate located at 1220 Kessler Mill Road, Salem, Virginia available for use as the Roanoke Regional Training Center for fire and emergency medical services. Roanoke County shall retain ownership of the land and improvements of this real estate throughout the term of this Agreement. ARTICLE II. SHARING COSTS Sec. 2-1. Cost Sharing Allocations. The costs to operate the Training Center shall be shared by the participating localities based on the following percentages: Roanoke County – forty-eight percent (48%); Roanoke City – forty-four percent (44%); and City of Salem – eight percent (8%). Sec. 2-2. Annual Operating Costs. The costs of operating the Training Center shall be $120,000.00 each fiscal year. Operating costs include, but are not limited to, utilities for the Training Center, maintenance costs for the Training Center, supplies for the Training Center. The costs to operate the Training Center shall be shared by the participating localities in accordance with the cost sharing allocation set forth in Sec. 2-1 and shall be due to Roanoke County as the fiscal agent on or before October 15 each year. Roanoke County’s share of the operating cost of the Training Center shall be $57,600.00 annually for the term of this Agreement, Roanoke City’s share of the operating costs of the Training Center shall be $52,800.00 annually for the term of this Agreement, and the City of Salem’s share of the operating costs of the Training Center shall be $9,600.00 annually for the term of this Agreement. Sec. 2-3. Insurance for Training Center. General liability insurance for the Training Center shall be purchased and funded wholly by Roanoke County. Sec. 2-4. Utilities for the Training Center. Roanoke County is responsible for coordinating with specific utility companies to ensure utilities are kept at the Training Center to include electricity, water, sewer, and trash collection. The costs of utilities for the Training Center shall be shared by the participating localities in accordance with the cost sharing allocation set forth in Sec. 2-1. Sec. 2-5. Maintenance of the Training Center. Roanoke County shall ensure that the building and grounds of the Training Center property are properly maintained and that repairs, when needed, are promptly done. The costs of maintenance of the Training Center shall be shared by the participating localities in accordance with the cost sharing allocation set forth in Sec. 2-1. 3 Sec. 2-6. Costs for Snow Removal. The Committee further described in Article IV may elect to hire snow removal services. The costs of snow removal services shall be shared by the participating localities in accordance with the cost sharing allocation set forth in Sec. 2-1. Sec. 2-7. Costs for Equipment Maintenance and Replacement. The costs to repair and replace equipment for use in fire and emergency medical services training at the Training Center shall be shared by the participating localities in accordance with the cost sharing allocation set forth in Sec. 2-1. ARTICLE III. BUDGET AND FISCAL MATTERS Sec. 3-1. Fiscal Agent. Roanoke County shall serve as the fiscal agent for the Training Center. Sec. 3-2. Budget. The Committee further described in Article IV shall adopt an annual budget for the Training Center in each ensuing fiscal year. The budget shall be submitted by the Committee to the finance offices of the participating localities each year so that the Training Center budget can be included in each participating locality’s budget proposals. At the option of the Committee, the budget request in any year may include components for future construction to or other capital improvements for the Training Center. Sec. 3-3. Annual Adjustment of Expenses. At the end of each fiscal year, a financial audit shall be performed in order to adjust any discrepancy or discrepancies between the budgeted payments and each participating locality’s actual and appropriate share of expenses for the prior year. Sec. 3-4. Debt. The Committee described in Article IV shall have no authority to incur debt obligations or approve expenditures in excess of the funds appropriated to it by the governing bodies of each of the participating localities. However, the Committee may, by unanimous vote, recommend the issuance of new debt or the restructuring of existing debt which would then require the approval of the governing bodies for each of the participating localities. ARTICLE IV. THE TRAINING CENTER COMMITTEE Sec. 4-1. The Training Center Committee. The overall general operations of the Training Center shall be the responsibility of the Training Center Committee (hereinafter referred to as the “Committee”) as set forth herein. The Committee shall establish rules for the use of the Training Center, and the Committee shall have discretion to refuse permission for the use of the Training Center, as deemed necessary by the Committee. Sec. 4-2. Committee Membership. The Committee shall consist of the following nine (9) members: (i) the Roanoke County Fire and Rescue Chief; (ii) an appointee of the Roanoke County Fire and Rescue Chief; (iii) the Roanoke County Battalion Chief of Training; (iv) the Roanoke City Fire and Rescue Chief; (v) an appointee of the Roanoke City Fire and Rescue Chief; (vi) the Roanoke City Battalion Chief of Training; (vii) the City of Salem Fire and Rescue Chief; (viii) an appointee of the City of Salem Fire and Rescue Chief; and (ix) the City of Salem Battalion Chief of Training. 4 Sec. 4-3. Committee Bylaws. The Committee shall adopt and be governed by bylaws which shall be subject to approval by the Fire and Rescue Chiefs of Roanoke County, Roanoke City, and the City of Salem. Sec. 4-4. Committee Chair. The Committee shall have a Chair who shall be a member of the Committee and who shall have all rights of membership in the Committee, including the right to vote. The Chair shall rotate each calendar year between the participating localities in the following order: the Roanoke County Fire and Rescue Chief or his or her designee, the City of Roanoke Fire and Rescue Chief or his or her designee, the City of Salem Fire and Rescue Chief or his or her designee. Sec. 4-5. Committee Meetings. The Committee shall meet at least quarterly. Notice of meetings shall be provided to all members at least five (5) business days prior to said meeting, unless said notice is waived in writing by all members. Sec. 4-6. Quorum. A quorum necessary to act at any meeting of the Committee shall be five (5) members. If fewer than five affirmative votes are received for approval of any formal action of the Committee, then there must be at least one affirmative vote from a representative of each of the three participating localities. Sec. 4-7. Training for Non-Participating Localities. The Committee shall have the authority and the discretion to grant or deny requests from non-participating localities to place and remove personnel into the fire and emergency services training at the Training Center, and the Committee shall have the authority to determine the cost of the training provided to personnel from non-participating localities. Any revenue generated from training provided to personnel from non-participating localities shall be used as operating costs for the Training Center. ARTICLE V. WITHDRAWAL OF A PARTY Sec. 5-1. Withdrawal. Any party to this Agreement may withdraw and terminate such locality’s participation in this Agreement as set forth herein: (1) Such party’s governing body must take appropriate action by ordinance authorizing such withdrawal and termination; and (2) The party seeking to withdraw from this Agreement shall deliver in person or by certified mail return receipt requested a formal written notice to each of the individuals listed under Sec. 6-3 of this Agreement on or before June 30 of the then current fiscal year, but which notice shall not be effective until midnight on June 30 of the following fiscal year. The purpose of this notice requirement is to give the non-withdrawing party or parties at least twelve (12) months’ notice of the withdrawing party’s decision to no longer participate in the Agreement. Sec. 5-2. Responsibility of Compliance. Any party to this Agreement which provides notice to withdrawal pursuant to Sec. 5-1 above shall be responsible for complying with such Agreement until the effective date of the withdrawal notice as referred to in Sec. 5-1 above. 5 Sec. 5-3. Withdrawing Party’s Interest in Assets. Any party withdrawing from this Agreement shall not be entitled nor receive any financial or other compensation, adjustment, or credit of any type for purchased asset(s) with regional funds. All items purchased by a locality either by direct contribution or grant for the benefit of the Training Center shall remain that locality’s property. Sec. 5-4. Future Operation of the Training Center. Upon a party’s notification of withdrawal pursuant to Sec. 5-1, the nonwithdrawing parties, in their sole discretion, may continue the operations of the Training Center under this Agreement with such modifications as they deem appropriate or under a new agreement as such nonwithdrawing parties deem appropriate. However, such modifications or new agreement shall not alter the financial obligations of the withdrawing party. The withdrawing party shall have no vote or right to object to the actions of the nonwithdrawing parties regarding any modifications to this Agreement or a new agreement, so long as the withdrawing party’s financial obligations are not altered. The withdrawing party shall also have no further right to use or receive the benefits of the Training Center operations after the effective date of withdrawal. Sec. 5-5. Cooperation Upon Withdrawal. The withdrawing party shall cooperate with the nonwithdrawing parties in order to provide for a smooth transition of operations and control to such nonwithdrawing parties, including, but not limited to, executing any documents and providing any information the nonwithdrawing parties may reasonably request. Sec. 5-6. Rights of the Nonwithdrawing Parties. If at any time the nonwithdrawing parties decide to no longer operate the Training Center, such parties may do so only upon such terms and conditions as such parties deem appropriate in accordance with the direction of the governing body of each nonwithdrawing party. Sec. 5-7. Right to Rescind Notice of Withdrawal. Any withdrawing party may rescind such party’s notice to withdraw only during the first 60 days after the date such notice was given. After such 60-day time period, the withdrawing party may request that such withdrawal notice be rescinded, but any such rescission request shall require the written consent of all of the nonwithdrawing parties to be effective. Sec. 5-8. Withdrawing Party’s Responsibility for Debt. No party may withdraw from any authority that has outstanding bonds without the unanimous consent of all the holders of such bonds unless all such bonds have been paid or cashed or United States government obligations have been deposited for their payment. Any withdrawing party shall continue to be responsible for its share of any debt for capital improvements made to the Training Center, and any allocation of debt payments shall be made by the withdrawing party based upon the percentage cost sharing terms provided for in Sec. 2-1 for one year following its withdrawal from this Agreement. ARTICLE VI. MISCELLANEOUS Sec. 6-1. Effective Date. The effective date of this agreement shall be July 1, 2024. Sec. 6-2. Term. The term of this Agreement shall commence on July 1, 2024, and shall terminate on June 30, 2027, unless sooner terminated or further extended as provided for herein. The parties hereto may choose to extend this agreement for one additional two (2) year term by written 6 agreement of all parties, unless one or more of the participating localities chooses to withdraw from this Agreement in accordance with the process outlined in Article V. Sec. 6-3. Notices. Notices hereunder shall be sent by certified mail to the respective parties to the following officers: Roanoke County Administrator COUNTY OF ROANOKE, VIRGINIA 5204 Bernard Drive Roanoke, Virginia 24018 Copy to: Roanoke County Attorney COUNTY OF ROANOKE, VIRGINIA 5204 Bernard Drive Roanoke, Virginia 24018 Roanoke City Manager CITY OF ROANOKE, VIRGINIA 215 Church Avenue SW Roanoke, Virginia 24011 Copy to: Roanoke City Attorney CITY OF ROANOKE, VIRGINIA 215 Church Avenue SW Roanoke, Virginia 24011 Salem City Manager CITY OF SALEM, VIRGINIA 114 N. Broad Street Salem, Virginia 24153 Copy to: Salem City Attorney Guynn Waddell, P.C. 415 S. College Avenue Salem, Virginia 24153 Sec. 6-4. Captions and Headings. The section captions and headings are for convenience and reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Sec. 6-5. Counterpart Copies. This Agreement may be executed in any number of counterpart copies, each of which shall be deemed an original, but all of which together shall constitute a single instrument. Sec. 6-6. Severability. The invalidity, illegality, or unenforceability of any provision of this Agreement as determined by a court of competent jurisdiction shall in no way affect the validity, legality, or enforceability of any other provision hereof. 7 Sec. 6-7. Waiver. No failure or delay of any party to insist on strict observance of any provision of this Agreement, and no custom or practice of the parties at variance with the terms hereof , shall be deemed a waiver of any provision of this Agreement in any instance. Sec. 6-8. Dispute Resolution. Any dispute, disagreement, or controversy arising among the parties hereto as to the operation of the Training Center, if not resolved by the parties within thirty (30) days of the date such dispute, disagreement, or controversy arose, may be resolved through non-binding mediation. Any dispute related to, arising out of, or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts in Roanoke County, Virginia. Sec. 6-9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia. Sec. 6-10. Entire Agreement. This Agreement and the attachments hereto constitute the full agreement among the parties. This Agreement may only be amended by written amendment adopted by each of the participating localities. Sec. 6-11. Liability of the Parties. To the extent permitted by Virginia law, each party agrees that, as between the parties, it shall be responsible for the acts and omissions of its employees and agents that are within the scope of their duties which cause injury to persons or property, including any violation of any environmental law or regulation or other responsibility imposed by law directly resulting from their use of the Training Center. Each party shall maintain its own workers’ compensation and public official’s liability insurance coverage. Nothing herein shall be interpreted as an assumption of joint or several liability or as an indemnification of any party by any of the others. Nothing herein shall be deemed a waiver of sovereign immunity or any other legal defense available to the parties. The provisions of this Agreement shall be for the sole benefit of the parties hereto, and no other person or entity is entitled to enforce any provision of this Agreement. In the event of a third party liability claim not covered by this paragraph, the parties hereto shall share in all costs of defense and in any monetary judgment or settlement of such claim in the proportions set forth in Sec. 2-1, unless otherwise mutually agreed upon between the parties. Sec. 6-12. Ownership of Personal Property Upon Termination. Upon termination of this Agreement, ownership of any party’s personal property which has not been formally transferred to the Committee shall be retained by that party and may be removed from the Training Center. Upon termination of this Agreement, the County shall retain ownership of the real estate located at 1220 Kessler Mill Road, Salem, Virginia and shall have and receive ownership of all fixtures, personal property, equipment, and other assets of the Committee unless otherwise mutually agreed to in writing by the parties. Each party shall execute any documents reasonably requested by the County to evidence the County’s ownership of all assets formerly owned or controlled by the Committee. IN WITNESS WHEREOF, the parties hereto have set their signatures and seals this the day and year first above written. (Signature Pages to Follow) 8 CITY OF ROANOKE, VIRGINIA By: _____________________________________ Title:____________________________________ COMMONWEALTH OF VIRGINIA CITY OF ROANOKE The foregoing instrument was acknowledged before me this ______ day of _______________, 2024, by ______________________________, _________________ of the City of Roanoke, Virginia. My Commission Expires: _____________________________________ ____________________ Notary Public 9 COUNTY OF ROANOKE, VIRGINIA By: _____________________________________ Title:____________________________________ COMMONWEALTH OF VIRGINIA COUNTY OF ROANOKE The foregoing instrument was acknowledged before me this ______ day of _______________, 2024, by ______________________________, _________________ of the County of Roanoke, Virginia. My Commission Expires: _____________________________________ ____________________ Notary Public 10 CITY OF SALEM, VIRGINIA By: _____________________________________ Title:____________________________________ COMMONWEALTH OF VIRGINIA CITY OF SALEM The foregoing instrument was acknowledged before me this ______ day of _______________, 2024, by ______________________________, _________________ of the City of Salem, Virginia. My Commission Expires: _____________________________________ ____________________ Notary Public Capital Unappropriated % of Board Expenditure Balance Revenues Contingency Contingency Reserves Audited balance as of June 30, 2023 26,217,687$ ‐$ ‐$ 11,810,663$ Addition of 2022‐23 operations and close out of completed projects 479,410 Approved Sources: Appropriated from 2023‐24 budget (Ordinance 052323‐2) 2,974,113 50,000 608,162 Allocated from year end designations ‐ December 12, 2023 3,000,000 Approved Uses: Appropriated for 2023‐24 budget (Ordinance 052323‐3)(5,925,138) Appropriated for 2023‐24 budget (Ordinance 052323‐3)(306,503) MOU regarding the joint capital funding approved on April 11, 2023 (5,000,000) Balance at June 11, 2024 29,191,800$ 12.0% 50,000$ 608,162$ 4,058,432$ County of Roanoke Unappropriated Balance, Board Contingency, and Capital Reserves Fiscal Year 2023‐2024 General Government Changes in outstanding debt for the fiscal year to date were as follows: Audited Outstanding Outstanding June 30, 2023 Additions Deletions June 11, 2024 VPSA School Bonds 77,829,551$ -$ 8,048,369$ 69,781,182$ Lease Revenue Bonds 82,760,000 - 4,365,000 78,395,000 Subtotal 160,589,551 - 12,413,369 148,176,182 Premiums 12,147,305 - - 12,147,305 172,736,856$ -$ 12,413,369$ 160,323,487$ Submitted By Laurie L. Gearheart Director of Finance and Management Services Approved By Richard L. Caywood County Administrator Page 1 of 1 ACTION NO. ITEM NO. J.1 AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY, VIRGINIA HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER MEETING DATE: June 11, 2024 AGENDA ITEM: Work Session with Energy Right Staff Chloe Hodges, Ben Wilson, and Skyler Zunk SUBMITTED BY: Madeline Hanlon Assistant to County Administrator APPROVED BY: Richard L. Caywood County Administrator ISSUE: This time has been set aside for Energy Right staff to hold a work session to discuss issues surrounding solar energy projects in Virginia. Energy Right -Utility Scale Solar Ordinance Standards Energy Right has published a set of ordinance standards to help make solar projects the best neighbors possible.Su cient but not superfluous ordinance language strikes the right balance between meaningful standards,property rights,and energy needs.These requirements will allow for good projects to come forward and be the best neighbors possible for rural Virginia. -Setbacks from property lines (50-100ft), -Setbacks of 50-100 ft o of a property line to a fence line are a common sense measure to help maintain the rural character of our land,and also to make these projects the best neighbor possible for our communities. -Setbacks from homes (150-250ft) -Adding additional setbacks when a project parcel is close to a neighbor’s home is an important factor to ensuring the community can continue to enjoy their “slice of heaven”in rural Virginia. -Vegetative Bu ers -Within setbacks,planted bu ers,or supplementing existing natural vegetation bu ers,of 25-50 ft surrounding the project help ensure that solar projects are shielded from view from neighbors and passersby. -Decommissioning Plan -Proposed projects should submit thorough decommissioning plans to ensure that project land is returned to its original state or better when the life of a project ends. Money set aside up front to pay for decommissioning,financial surety,should account for inflation,administrative costs,as well as the salvage value of project materials. -Meaningful Community Engagement -Genuine outreach in the communities where a project is proposed is imperative. Speaking with and gathering input from neighboring landowners,county leaders,and community groups will result in the best project possible for the whole community.In addition to individual outreach,at least one community meeting should be held prior to any o cial public hearings with neighbors invited. -Regenerative Ground Cover -Project proposals should include commitments to include native grasses and/or pollinator species to bees,butterflies,and local farms with pollination.Where solar grazing is considered,seed mixes should be vetted with grazers. -Setbacks from wetlands -Setbacks of 25 -50 ft from designated wetlands limits the impact to these important areas,and can help preserve them in perpetuity. -Topsoil Retention -Whenever possible,topsoil should remain undisturbed and should always remain on site to support the growth of ground cover. -Erosion control -Erosion and sediment control plans should be submitted and abided to prevent erosion and excess runo ,which can adversely a ect neighbors and waterways. -Sourcing local goods and services -Whenever possible,developers and Engineering,Procurement,and Construction companies (EPCs)should aim to source goods and services as local to the project site as possible.The true economic benefits come from spending dollars with local businesses,magnifying the investment. -Tra c mitigation,road maintenance -If tra c and road maintenance concerns are brought by neighbors or local leaders, projects should include plans to mitigate tra c and impacts on roads. -Local Taxation -Solar projects can and should be great economic drivers in rural Virginia.Entering into revenue sharing agreements or siting agreements is a great way to bring in new tax revenue without additional demand on public services.This tax revenue can help lower taxes on citizens or go to repairing roads,infrastructure,schools,or first responders. Energy Right will grant an “Energy Right Seal of Approval”to county ordinances that reasonably meet these criteria.All Virginians—local communities,businesses,the solar industry,landowners,and neighbors—stand to benefit from quality projects coming forward. We believe these guidelines strike the right balance and constructively help move these clean energy conversations forward. Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. With support from A P R I L 2 0 2 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Table of Contents I LAZARD’S LEVELIZED COST OF ENERGY ANALYSIS—VERSION 16.0 1 II LAZARD’S LEVELIZED COST OF STORAGE ANALYSIS—VERSION 8.0 15 III LAZARD’S LEVELIZED COST OF HYDROGEN ANALYSIS—VERSION 3.0 24 APPENDIX A Maturing Technologies 29 1 Carbon Capture & Storage Systems 30 2 Long Duration Energy Storage 33 B LCOE v16.0 36 C LCOS v8.0 41 D LCOH v3.0 43 A P R I L 2 0 2 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. I Lazard’s Levelized Cost of Energy Analysis—Version 16.0 A P R I L 2 0 2 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Introduction I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 Lazard’s Levelized Cost of Energy (“LCOE”) analysis addresses the following topics: •Comparative LCOE analysis for various generation technologies on a $/MWh basis, including sensitivities for U.S. federal tax subsidies, fuel prices, carbon pricing and cost of capital •Illustration of how the LCOE of onshore wind, utility-scale solar and hybrid projects compare to the marginal cost of selected conventional generation technologies •Illustration of how the LCOE of onshore wind, utility-scale solar and hybrid projects, plus the cost of firming intermittency in various regions, compares to the LCOE of selected conventional generation technologies •Historical LCOE comparison of various utility-scale generation technologies •Illustration of the historical LCOE declines for onshore wind and utility-scale solar technologies •Comparison of capital costs on a $/kW basis for various generation technologies •Deconstruction of the LCOE for various generation technologies by capital cost, fixed operations and maintenance (“O&M”) expense, variable O&M expense and fuel cost •Considerations regarding the operating characteristics and applications of various generation technologies •Appendix materials, including: −An overview of the methodology utilized to prepare Lazard’s LCOE analysis −A summary of the assumptions utilized in Lazard’s LCOE analysis Other factors would also have a potentially significant effect on the results contained herein, but have not been examined in the scope of this current analysis. These additional factors, among others, could include: implementation and interpretation of the full scope of the Inflation Reduction Act (“IRA”); network upgrades, transmission, congestion or other integration-related costs; permitting or other development costs, unless otherwise noted; and costs of complying with various environmental regulations (e.g., carbon emissions offsets or emissions control systems). This analysis also does not address potential social and environmental externalities, including, for example, the social costs and rate consequences for those who cannot afford distributed generation solutions, as well as the long-term residual and societal consequences of various conventional generation technologies that are difficult to measure (e.g., nuclear waste disposal, airborne pollutants, greenhouse gases, etc.) Note:This report has been compiled using U.S.-focused data. 1 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. $117 $49 $24 $46 $61 $24 $42 $72 $115 $141 $68 $39 $282 $185 $96 $102 $102 $75 $114 $140 $221 $221 $166 $101 $0 $25 $50 $75 $100 $125 $150 $175 $200 $225 $250 $275 $300 Solar PV—Rooftop Residential Solar PV—Community & C&I Solar PV—Utility Solar PV + Storage—Utility Scale Geothermal Wind—Onshore Wind + Storage—Onshore Wind—Offshore Gas Peaking Nuclear Coal Gas Combined Cycle (2) I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 Levelized Cost of Energy Comparison—Unsubsidized Analysis $52(4) $62(4) Selected renewable energy generation technologies are cost-competitive with conventional generation technologies under certain circumstances (2) (1) $31(4) $116(6)$156(7) (5) (3) Source:Lazard and Roland Berger estimates and publicly available information. Note:Here and throughout this presentation, unless otherwise indicated, the analysis assumes 60% debt at an 8% interest rate and 40% equity at a 12% cost. See page titled “Levelized Cost of Energy Comparison—Sensitivity to Cost of Capital” for cost of capital sensitivities. (1)Given the limited data set available for new-build geothermal projects, the LCOE presented herein represents Lazard’s LCOE v15.0 results adjusted for inflation. (2)The fuel cost assumption for Lazard’s unsubsidized analysis for gas-fired generation resources is $3.45/MMBTU for year-over-year comparison purposes. See page titled “Levelized Cost of Energy Comparison—Sensitivity to Fuel Prices” for fuel price sensitivities. (3)Given the limited public and/or observable data set available for new-build nuclear projects and the emerging range of new nuclear generation strategies, the LCOE presented herein represents Lazard’s LCOE v15.0 results adjusted for inflation (results are based on then-estimated costs of the Vogtle Plant and are U.S.-focused). (4)Represents the midpoint of the unsubsidized marginal cost of operating fully depreciated gas combined cycle, coal and nuclear facilities, inclusive of decommissioning costs for nuclear facilities. Analysis assumes that the salvage value for a decommissioned gas combined cycle or coal asset is equivalent to its decommissioning and site restoration costs. Inputs are derived from a benchmark of operating gas combined cycle, coal and nuclear assets across the U.S. Capacity factors, fuel, variable and fixed operating expenses are based on upper-and lower-quartile estimates derived from Lazard’s research. See page titled “Levelized Cost of Energy Comparison— Renewable Energy versus Marginal Cost of Selected Existing Conventional Generation Technologies” for additional details. (5)Given the limited public and/or observable data set available for new-build coal projects, the LCOE presented herein represents Lazard’s LCOE v15.0 results adjusted for inflation. High end incorporates 90% carbon capture and storage (“CCS”). Does not include cost of transportation and storage. (6)Represents the LCOE of the observed high case gas combined cycle inputs using a 20% blend of “Blue” hydrogen, (i.e., hydrogen produced from a steam-methane reformer, using natural gas as a feedstock, and sequestering the resulting CO2 in a nearby saline aquifer). No plant modifications are assumed beyond a 2% adjustment to the plant’s heat rate. The corresponding fuel cost is $5.20/MMBTU, assuming ~$1.40/kg for Blue hydrogen. (7)Represents the LCOE of the observed high case gas combined cycle inputs using a 20% blend of “Green” hydrogen, (i.e., hydrogen produced from an electrolyzer powered by a mix of wind and solar generation and stored in a nearby salt cavern). No plant modifications are assumed beyond a 2% adjustment to the plant’s heat rate. The corresponding fuel cost is $10.05/MMBTU, assuming ~$4.15/kg for Green hydrogen. Levelized Cost of Energy ($/MWh) Solar PV— Solar PV— Solar PV—Utility- Solar PV + Storage—Utility- Geothermal Wind— Wind + Storage— Wind— Gas Peaking Nuclear Coal Gas Combined Cycle 2 Renewable Energy Conventional Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. $117 $74 $49 $32 $24 $16 $24 $0 $46 $31 $61 $37 $24 $0 $42 $12 $72 $56 $282 $229 $185 $155 $96 $80 $96 $77 $102 $88 $102 $87 $75 $66 $114 $103 $140 $114 $0 $25 $50 $75 $100 $125 $150 $175 $200 $225 $250 $275 $300 Solar PV–Rooftop Residential Solar PV–Community & C&I Solar PV–Utility-Scale (ITC) Solar PV–Utility-Scale (PTC) Solar PV + Storage–Utility-Scale (ITC) Geothermal Wind—Onshore (PTC) Wind + Storage—Onshore (PTC/ITC) Offshore Wind Unsubsidized Levelized Cost of Energy Comparison—Sensitivity to U.S. Federal Tax Subsidies I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 Subsidized (excl. Domestic Content)(3)Subsidized (incl. Domestic Content)(4) (1) (1) Source:Lazard and Roland Berger estimates and publicly available information. Note:Unless otherwise indicated, this analysis does not include other state or federal subsidies (e.g., energy community adder,etc.). The IRA is comprehensive legislation that is still being implemented and remains subject to interpretation—important elements of the IRA are not included in our analysis and could impact outcomes. (1)Results at this level are driven by Lazard’s approach to calculating the LCOE and selected inputs (see Appendix for further details). Lazard’s Unsubsidized LCOE analysis assumes, for year-over-year reference purposes, 60% debt at an 8% interest rate and 40% equity at a 12% cost (together implying an after-tax IRR/WACC of 7.7%). Implied IRRs at this level for Solar PV—Utility-Scale (PTC) equals 17% (excl. Domestic Content) and 22% (incl. Domestic Content) and implied IRRs at this level for Wind—Onshore (PTC) equals 17% (excl. Domestic Content) and 25% (incl. Domestic Content). (2)Given the limited public and/or observable data set available for new-build geothermal projects, the LCOE presented herein represents Lazard’s LCOE v15.0 results adjustment for inflation. (3)This sensitivity analysis assumes that projects qualify for the full ITC/PTC and have a capital structure that includes sponsor equity, debt and tax equity. (4)This sensitivity analysis assumes the above and also includes a 10% domestic content adder. Levelized Cost of Energy ($/MWh) (2) Solar PV— Solar PV— Solar PV—Utility- Solar PV—Utility- Solar PV + Storage—Utility- Geothermal Wind— Wind + Storage— Wind— The Investment Tax Credit (“ITC”), Production Tax Credit (“PTC”) and domestic content adder, among other provisions in the IRA, are important components of the levelized cost of renewable energy generation technologies 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. $117 $49 $24 $46 $61 $24 $42 $72 $105 $138 $64 $33 $282 $185 $96 $102 $102 $75 $114 $140 $229 $223 $171 $108 $0 $25 $50 $75 $100 $125 $150 $175 $200 $225 $250 $275 $300 Solar PV—Rooftop Residential Solar PV—Community & C&I Solar PV—Utility Solar PV + Storage—Utility Scale Geothermal Wind—Onshore Wind + Storage—Onshore Wind—Offshore Gas Peaking Nuclear Coal Gas Combined Cycle Levelized Cost of Energy Comparison—Sensitivity to Fuel Prices I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 Variations in fuel prices can materially affect the LCOE of conventional generation technologies, but direct comparisons to “competing” renewable energy generation technologies must take into account issues such as dispatch characteristics (e.g., baseload and/or dispatchable intermediate capacity vs. peaking or intermittent technologies) Unsubsidized ±25% Fuel Price AdjustmentSource:Lazard and Roland Berger estimates and publicly available information. Note:Unless otherwise noted, the assumptions used in this sensitivity correspond to those used in the unsubsidized analysis as presented on the page titled “Levelized Cost of Energy Comparison—Unsubsidized Analysis”. (1)Given the limited public and/or observable data set available for new-build geothermal, coal and nuclear projects, and the emerging range of new nuclear generation strategies, the LCOE presented herein represents Lazard’s LCOE v15.0 results adjusted for inflation and, for nuclear, are based on then-estimated costs of the Vogtle Plant and are U.S.-focused. (2)Assumes a fuel cost range for gas-fired generation resources of $2.59/MMBTU –$4.31/MMBTU (representing a sensitivity range of ±25% of the $3.45/MMBTU used in the Unsubsidized Analysis). (3)Assumes a fuel cost range for nuclear generation resources of $0.64/MMBTU –$1.06/MMBTU (representing a sensitivity range of ±25% of the $0.85MMBTU used in the Unsubsidized Analysis). (4)Assumes a fuel cost range for coal-fired generation resources of $1.10/MMBTU –$1.84/MMBTU (representing a sensitivity range of ±25% of the $1.47/MMBTU used in the Unsubsidized Analysis). Levelized Cost of Energy ($/MWh) Solar PV—Rooftop Residential Solar PV—Community & C&I Solar PV—Utility-Scale Solar PV + Storage—Utility-Scale Geothermal(1) Wind—Onshore Wind + Storage—Onshore Wind—Offshore Gas Peaking(2) Nuclear(1)(3) Coal(1)(4) Gas Combined Cycle(2) 4 Renewable Energy Conventional Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. $117 $49 $24 $46 $61 $24 $42 $72 $115 $126 $141 $68 $86 $39 $46 $282 $185 $96 $102 $102 $75 $114 $140 $221 $240 $221 $171 $101 $118 $0 $25 $50 $75 $100 $125 $150 $175 $200 $225 $250 $275 $300 Solar PV—Rooftop Residential Solar PV—Community & C&I Solar PV—Utility Solar PV + Storage—Utility Scale Geothermal Wind—Onshore Wind + Storage—Onshore Wind—Offshore Nuclear I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 Levelized Cost of Energy Comparison—Sensitivity to Carbon Pricing Carbon pricing is one avenue for policymakers to address carbon emissions; a carbon price range of $20 –$40/Ton of carbon would increase the LCOE for certain conventional generation technologies relative to those of onshore wind and utility-scale solar Levelized Cost of Energy ($/MWh) Gas Peaking(1) Coal(1)(3) Gas Combined Cycle(1)(4) Unsubsidized Unsubsidized with Carbon PricingMarginal Cost without Carbon Pricing $52(4) $62(4) $31(4) $82(5) $99(6) Marginal Cost with Carbon Pricing Source:Lazard and Roland Berger estimates and publicly available information. Note:Unless otherwise noted, the assumptions used in this sensitivity correspond to those used in the unsubsidized analysis as presented on the page titled “Levelized Cost of Energy Comparison—Unsubsidized Analysis”. (1)Given the limited public and/or observable data set available for new-build geothermal, coal and nuclear projects, and the emerging range of new nuclear generation strategies, the LCOE presented herein represents Lazard’s LCOE v15.0 results adjusted for inflation and, for nuclear, are based on then-estimated costs of the Vogtle Plant and are U.S.-focused. (2)The low and high ranges reflect the LCOE of selected conventional generation technologies including illustrative carbon prices of $20/Ton and $40/Ton, respectively. (3)The IRA is comprehensive legislation that is still being implemented and remains subject to interpretation—important elements of the IRA (e.g., nuclear subsidies) are not included in our analysis and could impact outcomes. (4)Represents the midpoint of the unsubsidized marginal cost of operating fully depreciated gas combined cycle, coal and nuclear facilities, inclusive of decommissioning costs for nuclear facilities. Analysis assumes that the salvage value for a decommissioned gas combined cycle or coal asset is equivalent to its decommissioning and site restoration costs. Inputs are derived from a benchmark of operating gas combined cycle, coal and nuclear assets across the U.S. Capacity factors, fuel, variable and fixed operating expenses are based on upper-and lower-quartile estimates derived from Lazard’s research. See page titled “Levelized Cost of Energy Comparison— Renewable Energy versus Marginal Cost of Selected Existing Conventional Generation Technologies” for additional details. (5)Represents the midpoint of the unsubsidized marginal cost of operating fully depreciated coal facilities with illustrative carbon pricing. Operating coal facilities are not assumed to employ CCS technology. (6)Represents the midpoint of the unsubsidized marginal cost of operating fully depreciated gas combined cycle facilities with illustrative carbon pricing. Solar PV— Solar PV— Solar PV—Utility- Solar PV + Storage—Utility- Geothermal Wind— Wind + Storage— Wind— Gas Peaking Nuclear Coal Gas Combined Cycle 5 Renewable Energy Conventional Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. $66 $71 $76 $82 $88 $94 $41 $44 $50 $57 $85 $95 $106 $117 $128 $140 $61 $64 $67 $70 $74 $77 $136 $146 $157 $168 $179 $192 $124 $142 $160 $180 $201 $222 $87 $93 $99 $106 $114 $122 0 25 50 75 100 125 150 175 200 $225 LCOE($/MWh) Levelized Cost of Energy Comparison—Sensitivity to Cost of Capital I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 A key consideration in determining the LCOE values for utility-scale generation technologies is the cost, and availability, of capital(1); this dynamic is particularly significant for renewable energy generation technologies Source:Lazard and Roland Berger estimates and publicly available information. Note: Analysis assumes 60% debt and 40% equity. Unless otherwise noted, the assumptions used in this sensitivity correspond to those used on the page titled “Levelized Cost of Energy Comparison—Unsubsidized Analysis”. (1)Cost of capital as used herein indicates the cost of capital applicable to the asset/plant and not the cost of capital of a particular investor/owner. (2)Reflects the average of the high and low LCOE for each respective cost of capital assumption. Midpoint of Unsubsidized LCOE(2) Gas Peaking Geothermal Coal Gas Combined Cycle Solar PV—Utility-Scale Wind—Onshore After-Tax 4.2%5.4%6.5%7.7%8.8%10.0% 6.0%8.0%10.0%12.0%14.0%16.0% 5.0%6.0%7.0%8.0%9.0%10.0% LCOE v16.0 Nuclear Wind—Offshore 6 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. $24 $46 $16 $0 $31 $24 $42 $0 $12 $29 $29 $51 $96 $102 $80 $77 $88 $75 $114 $66 $103 $34 $74 $0 $10 $20 $30 $40 $50 $60 $70 $80 $90 $100 $110 $120 Levelized Cost of Energy ($/MWh) I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 Certain renewable energy generation technologies have an LCOE that is competitive with the marginal cost of existing conventional generation Source:Lazard and Roland Berger estimates and publicly available information. Note: Unless otherwise noted, the assumptions used in this sensitivity correspond to those used on page titled “Levelized Cost of Energy Comparison—Unsubsidized Analysis”. (1)Represents the marginal cost of operating fully depreciated gas combined cycle, coal and nuclear facilities, inclusive of decommissioning costs for nuclear facilities. Analysis assumes that the salvage value for a decommissioned gas combined cycle and coal asset is equivalent to its decommissioning and site restoration costs. Inputs are derived from a benchmark of operating gas combined cycle, coal and nuclear assets across the U.S. Capacity factors, fuel, variable and fixed O&M are based on upper-and lower-quartile estimates derived from Lazard’s research. Assumes a fuel cost of $0.79/MMBTU for Nuclear, $3.11/MMBTU for Coal and $6.85/MMBTU for Gas Combined Cycle. (2)See page titled “Levelized Cost of Energy Comparison—Sensitivity to U.S. Federal Tax Subsidies” for additional details. (3)Results at this level are driven by Lazard’s approach to calculating the LCOE and selected inputs (see Appendix for further details). Lazard’s Unsubsidized LCOE analysis assumes, for year-over-year reference purposes, 60% debt at an 8% interest rate and 40% equity at a 12% cost (together implying an after-tax IRR/WACC of 7.7%). Implied IRRs at this level for Solar PV—Utility-Scale (PTC) equals 17% (excl. Domestic Content) and 22% (incl. Domestic Content) and implied IRRs at this level for Wind—Onshore (PTC) equals 17% (excl. Domestic Content) and 25% (incl. Domestic Content). (4)The IRA is comprehensive legislation that is still being implemented and remains subject to interpretation—important elements of the IRA (e.g., nuclear subsidies) are not included in our analysis and could impact outcomes. Levelized Cost of Energy Comparison—Renewable Energy versus Marginal Cost of Selected Existing Conventional Generation Technologies Unsubsidized (3) Subsidized Marginal Cost (3) $52 $62 Marginal Cost Midpoint without Carbon Pricing Solar PV—Utility- Solar PV + Storage—Utility- Solar PV—Utility-Scale (ITC) Solar PV—Utility-Scale (PTC) Solar PV + Storage—Utility- (ITC) Wind— Wind + Storage— Wind—Onshore (PTC) Wind + Storage— (PTC/ITC) Nuclear $31 7 Levelized Cost of New-Build Wind and Solar Marginal Cost of Selected Existing Conventional Generation(1) Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Source:Lazard and Roland Berger estimates and publicly available information. (1)Firming costs reflect the additional capacity needed to supplement the net capacity of the renewable resource (nameplate capacity * (1 –ELCC)) and the net cost of new entry (net “CONE”) of a new firm resource (capital and operating costs, less expected market revenues). Net CONE is assessed and published by grid operators for each regional market. Grid operators use a natural gas CT as the assumed new resource in MISO ($8.22/kW-mo), SPP ($8.56/kW-mo) and PJM ($10.20/kW-mo). In CAISO, the assumed new resource is a 4 hour lithium-ion battery storage system ($18.92/kW-mo). For the PV + Storage cases in CAISO and PJM, assumed Storage configuration is 50% of PV MW and 4 hour duration. (2)ELCC is an indicator of the reliability contribution of different resources to the electricity grid. The ELCC of a generation resource is based on its contribution to meeting peak electricity demand. For example, a 1 MW wind resource with a 15% ELCC provides 0.15 MW of capacity contribution and would need to be supplemented with 0.85 MW of additional firm capacity in order to represent the addition of 1 MW of firm system capacity. (3)LCOE values represent the midpoint of Lazard’s LCOE v16.0 cost inputs for each technology adjusted for a regional capacity factor to demonstrate the regional differences in both project and firming costs. (4)For PV + Storage cases, the effective ELCC value is represented. CAISO and PJM assess ELCC values separately for the PV and storage components of a system. Storage ELCC value is provided only for the capacity that can be charged directly by the accompanying resource up to the energy required for a 4 hour discharge during peak load. Any capacity available in excess of the 4 hour maximum discharge is attributed to the system at the solar ELCC. ELCC values for storage range from 90% –95% for CAISO and PJM. LCOE v16.0 Levelized Firming Cost ($/MWh)(3) Levelized Cost of Energy Comparison—Cost of Firming Intermittency I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 The incremental cost to firm(1)intermittent resources varies regionally, depending on the current effective load carrying capability (“ELCC”)(2) values and the current cost of adding new firming resources—carbon pricing, not considered below, would have an impact on this analysis $54 $35 $42 $18 $43 $28 $67 $47 $60 $43 $51 $36 $11 $57 $37 $88 $62 $46 $24 $82 $63 $64 $41 $141 $126 $117 $97 $132 $115 $60 $42 $55 $30 $102 $82 $110 $84 $77 $55 0 25 50 75 100 125 150 175 200 $225 Le v e l i z e d C o s t o f E n e r g y ( $ / M W h ) Lazard’s Unsubsidized LCOE Firming Cost Solar Wind Solar PV + Storage Wind Solar Wind Solar PV + Storage Wind ELCC 50%16%7%51%(4)15%85%17%38%70%(4)15% Capacity Factor 20%43%25%25%30%21%50%19%19%39% Resource Penetration 3%25%32%32%19%1%56%5%5%7% MISO CAISO SPP PJM Gas Peaking LCOE v16.0 ($115 –$221/MWh) Lazard’s Subsidized LCOE Gas Combined Cycle LCOE v16.0 ($39 – $101/MWh) (3)(3)(1) 8 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 Levelized Cost of Energy Comparison—Historical Utility-Scale Generation Comparison Selected Historical Mean Unsubsidized LCOE Values(1) Solar PV— Utility-Scale(3) (83%) Lazard’s unsubsidized LCOE analysis indicates significant historical cost declines for utility-scale renewable energy generation technologies driven by, among other factors, decreasing capital costs, improving technologies and increased competition $359 $248 $157 $125 $98 $79 $64 $55 $50 $43 $40 $37 $36 $60 $111 $111 $111 $102 $105 $109 $108 $102 $102 $102 $109 $112 $108 $117 $83 $82 $83 $75 $74 $74 $65 $63 $60 $58 $56 $59 $60 $70 $135 $124 $71 $72 $70 $59 $55 $47 $45 $42 $41 $40 $38 $50 $123 $96 $95 $96 $104 $112 $117 $117 $148 $151 $155 $163 $167 $180 $168 $157 $159 $174 $145 $124 $150 $151 $140 $140 $141 $76 $107 $104 $116 $116 $116 $100 $98 $97 $91 $91 $80 $75 $82 $275 $243 $227 $216 $205 $205 $192 $191 $183 $179 $175 $175 $173 $168 20 80 140 200 260 320 $380 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2023 Mean LCOE ($/MWh) Gas Combined Cycle (15%) Wind—Onshore (63%) Nuclear 47% Coal 5% Solar Thermal Tower(2) (16%) Gas Peaking (39%) Geothermal 8% Source:Lazard and Roland Berger estimates and publicly available information. (1)Reflects the average of the high and low LCOE for each respective technology in each respective year. Percentages represent the total decrease in the average LCOE since Lazard’s LCOE v3.0. (2)The LCOE no longer analyzes solar thermal costs; percent decrease is as of Lazard’s LCOE v13.0. (3)Prior versions of Lazard’s LCOE divided Utility-Scale Solar PV into Thin Film and Crystalline subcategories. All values before Lazard’s LCOE v16.0 reflect those of the Solar PV—Crystalline technology. LCOE Version 3.0 4.0 5.0 6.0 7.0 8.0 9.0 10.0 11.0 12.0 13.0 14.0 15.0 16.0 // 9 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. $323 $226 $148 $101 $91 $72 $58 $49 $46 $40 $36 $31 $30 $24 $394 $270 $166 $149 $104 $86 $70 $61 $53 $46 $44 $42 $41 $96 0 50 100 150 200 250 300 350 400 $450 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2023 LCOE ($/MWh) Levelized Cost of Energy Comparison—Historical Renewable Energy LCOE I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 Even in the face of inflation and supply chain challenges, the LCOE of best-in-class onshore wind and utility-scale solar has declined at the low-end of our cost range, the reasons for which could catalyze ongoing consolidation across the sector—although the average LCOE has increased for the first time in the history of our studies Source:Lazard and Roland Berger estimates and publicly available information. (1)Represents the average percentage decrease/increase of the high end and low end of the LCOE range. (2)Represents the average compounded annual rate of decline of the high end and low end of the LCOE range. LCOE Version 3.0 4.0 5.0 6.0 7.0 8.0 9.0 10.0 11.0 12.0 13.0 14.0 15.0 16.0 Utility-Scale Solar LCOE Range Utility-Scale Solar LCOE Midpoint Unsubsidized Onshore Wind LCOE $101 $99 $50 $48 $45 $37 $32 $32 $30 $29 $28 $26 $26 $24 $169 $148 $92 $95 $95 $81 $77 $62 $60 $56 $54 $54 $50 $75 0 50 100 150 200 $250 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2023 LCOE ($/MWh) Unsubsidized Solar PV LCOE Onshore Wind 2009 –2023 Percentage Decrease/CAGR: (66%)(1)(8%)(2) Onshore Wind LCOE Range Onshore Wind LCOE Midpoint Utility-Scale Solar 2009 –2023 Percentage Decrease/CAGR: (84%)(1)(13%)(2) Onshore Wind 2016 –2023 Percentage Decrease/CAGR: (2)%(1)(1%)(2)Utility-Scale Solar 2016 –2023 Percentage Increase/CAGR: 3%(1)(2%)(2) LCOE Version 3.0 4.0 5.0 6.0 7.0 8.0 9.0 10.0 11.0 12.0 13.0 14.0 15.0 16.0 //// 10 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Levelized Cost of Energy Comparison—Capital Cost Comparison I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 In some instances, the capital costs of renewable energy generation technologies have converged with those of certain conventional generation technologies, which coupled with improvements in operational efficiency for renewable energy technologies, have led to a convergence in LCOE between the respective technologies $2,230 $1,200 $700 $1,075 $4,700 $1,025 $1,375 $3,000 $700 $8,475 $3,200 $650 $4,150 $2,850 $1,400 $1,600 $6,075 $1,700 $2,250 $5,000 $1,150 $13,925 $6,775 $1,300 $0 $1,500 $3,000 $4,500 $6,000 $7,500 $9,000 $10,500 $12,000 $13,500 $15,000 Solar PV—Rooftop Residential Solar PV—Community & C&I Solar PV—Utility Solar PV + Storage—Utility Scale Geothermal Wind—Onshore Wind + Storage—Onshore Wind—Offshore Gas Peaking Nuclear Coal Gas Combined Cycle Capital Cost ($/kW) Solar PV— Solar PV— Solar PV—Utility- Solar PV + Storage—Utility- Geothermal Wind— Wind + Storage— Wind— Nuclear Coal Source:Lazard and Roland Berger estimates and publicly available information. Notes:Figures may not sum due to rounding. (1)Given the limited public and/or observable data set available for new-build geothermal, coal and nuclear projects, and the emerging range of new nuclear generation strategies, the LCOE presented herein represents Lazard’s LCOE v15.0 results adjusted for inflation and, for nuclear, are based on then-estimated costs of the Vogtle Plant and are U.S.-focused. 11 Renewable Energy Conventional Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Levelized Cost of Energy Components—Low End I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 Certain renewable energy generation technologies are already cost-competitive with conventional generation technologies; key factors regarding the continued cost decline of renewable energy generation technologies are the ability of technological development and industry scale to continue lowering operating expenses and capital costs for renewable energy generation technologies $109 $44 $21 $37 51 $20 $33 $59 $72 $113 $47 $14 $9 $5 $3 $8 $2 $4 $8 $12 $5 $15 $5 $1 $9 $4 $4 $3 $3 $34 $9 $13 $21 $117 $49 $24 $46 $61 $24 $42 $72 $115 $141 $68 $39 $0 $25 $50 $75 $100 $125 $150 Solar PV—Rooftop Residential Solar PV—Community & C&I Solar PV—Utility Solar PV + Storage—Utility Scale Geothermal Wind—Onshore Wind + Storage—Onshore Wind—Offshore Gas Peaking Nuclear Coal Gas Combined Cycle Levelized Cost ($/MWh) Capital Cost Fixed O&M Variable O&M Fuel Cost Solar PV— Solar PV— Solar PV—Utility- Solar PV + Storage—Utility- Geothermal Wind— Wind + Storage— Wind— Nuclear Coal Source:Lazard and Roland Berger estimates and publicly available information. Notes:Figures may not sum due to rounding. (1)Given the limited public and/or observable data set available for new-build geothermal, coal and nuclear projects, and the emerging range of new nuclear generation strategies, the LCOE presented herein represents Lazard’s LCOE v15.0 results adjusted for inflation and, for nuclear, are based on then-estimated costs of the Vogtle Plant and are U.S.-focused. 12 Renewable Energy Conventional Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. $268 $172 $85 $76 $76 $62 $84 $120 $169 $190 $127 $66 $14 $14 $11 $26 $2 $13 $30 $20 $19 $17 $16 $6 $24 $5 $5 $6 $5 $28 $9 $18 $24 $282 $185 $96 $102 $102 $75 $114 $140 $221 $221 $166 $101 $0 $25 $50 $75 $100 $125 $150 $175 $200 $225 $250 $275 $300 Solar PV—Rooftop Residential Solar PV—Community & C&I Solar PV—Utility Solar PV + Storage—Utility Scale Geothermal Wind—Onshore Wind + Storage—Onshore Wind—Offshore Gas Peaking Nuclear Coal Gas Combined Cycle Levelized Cost ($/MWh) Capital Cost Fixed O&M Variable O&M Fuel Cost Levelized Cost of Energy Components—High End I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 Certain renewable energy generation technologies are already cost-competitive with conventional generation technologies; key factors regarding the continued cost decline of renewable energy generation technologies are the ability of technological development and industry scale to continue lowering operating expenses and capital costs for renewable energy generation technologies Solar PV— Solar PV— Solar PV—Utility- Solar PV + Storage—Utility- Geothermal Wind— Wind + Storage— Wind— Nuclear Coal Renewable Energy Conventional Source:Lazard and Roland Berger estimates and publicly available information. Notes:Figures may not sum due to rounding. (1)Given the limited public and/or observable data set available for new-build geothermal, coal and nuclear projects, and the emerging range of new nuclear generation strategies, the LCOE presented herein represents Lazard’s LCOE v15.0 results adjusted for inflation and, for nuclear, are based on then-estimated costs of the Vogtle Plant and are U.S.-focused. 13 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Energy Resources—Matrix of Applications I L A Z A R D ’ S L E V E L I Z E D C O S T O F E N E R G Y A N A L Y S I S —V E R S I O N 1 6 . 0 Despite convergence in the LCOE of certain renewable energy and conventional generation technologies, direct comparisons must take into account issues such as location (e.g., centralized vs. distributed) and dispatch characteristics (e.g., baseload and/or dispatchable intermediate capacity vs. peaking or intermittent technologies) Source:Lazard and Roland Berger estimates and publicly available information. (1)Represents the full range of solar PV technologies. Carbon Neutral/ REC Potential Location Dispatch Distributed Centralized Geography Intermittent Peaking Load- Following Baseload Renewable Energy Solar PV(1)Universal Solar PV + Storage Universal Geothermal Varies Onshore Wind Rural Onshore Wind + Storage Rural Offshore Wind Coastal Conventional Gas Peaking Universal Nuclear Rural Coal Co-located or rural Gas Combined Cycle Universal 14 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. II Lazard’s Levelized Cost of Storage Analysis—Version 8.0 A P R I L 2 0 2 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Introduction Lazard’s Levelized Cost of Storage (“LCOS”) analysis addresses the following topics: •Lazard’s LCOS analysis −Overview of the operational parameters of selected energy storage systems for each use case analyzed −Comparative LCOS analysis for various energy storage systems on a $/kW-year basis −Comparative LCOS analysis for various energy storage systems on a $/MWh basis •Energy Storage Value Snapshot analysis −Overview of potential revenue applications for various energy storage systems −Overview of the Value Snapshot analysis and identification of selected geographies for each use case analyzed −Summary results from the Value Snapshot analysis •Appendix materials, including: −An overview of the methodology utilized to prepare Lazard’s LCOS analysis −A summary of the assumptions utilized in Lazard’s LCOS analysis Other factors would also have a potentially significant effect on the results contained herein, but have not been examined in the scope of this current analysis. These additional factors, among others, could include: implementation and interpretation of the full scope of the IRA; network upgrades, transmission, congestion or other integration-related costs; permitting or other development costs, unless otherwise noted; and costs of complying with various regulations (e.g., federal import tariffs or labor requirements). This analysis also does not address potential social and environmental externalities, as well as the long-term residual and societal consequences of various energy storage system technologies that are difficult to measure (e.g., resource extraction, end of life disposal, lithium-ion-related safety hazards, etc.) I I L A Z A R D ’ S L E V E L I Z E D C O S T O F S T O R A G E A N A L Y S I S—V E R S I O N 8 . 0 Note:This report has been compiled using U.S.-focused data. 15 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Energy Storage Use Cases—Overview Use Case Description Technologies Assessed In -Fr o n t -of -th e -Me t e r Utility-Scale (Standalone) •Large-scale energy storage system designed for rapid start and precise following of dispatch signal. Variations in system discharge duration are designed to meet varying system needs (i.e., short-duration frequency regulation, longer-duration energy arbitrage(1)or capacity, etc.) −To better reflect current market trends, this report analyzes one-, two-and four-hour durations(2) •Lithium Iron Phosphate (LFP) •Lithium Nickel Manganese Cobalt Oxide (NMC) Utility-Scale (PV + Storage) •Energy storage system designed to be paired with large solar PV facilities to better align timing of PV generation with system demand, reduce curtailment and provide grid support •Lithium Iron Phosphate (LFP) •Lithium Nickel Manganese Cobalt Oxide (NMC) Utility-Scale (Wind + Storage) •Energy storage system designed to be paired with large wind generation facilities to better align timing of wind generation with system demand, reduce curtailment and provide grid support •Lithium Iron Phosphate (LFP) •Lithium Nickel Manganese Cobalt Oxide (NMC) Be h i n d -th e -Me t e r Commercial & Industrial (Standalone) •Energy storage system designed for behind-the-meter peak shaving and demand charge reduction for C&I users −Units often configured to support multiple commercial energy management strategies and provide optionality for the system to provide grid services to a utility or the wholesale market, as appropriate, in a given region •Lithium Iron Phosphate (LFP) •Lithium Nickel Manganese Cobalt Oxide (NMC) Commercial & Industrial (PV + Storage) •Energy storage system designed for behind-the-meter peak shaving and demand charge reduction services for C&I users −Systems designed to maximize the value of the solar PV system by optimizing available revenue streams and subsidies •Lithium Iron Phosphate (LFP) •Lithium Nickel Manganese Cobalt Oxide (NMC) Residential (Standalone) •Energy storage system designed for behind-the-meter residential home use—provides backup power and power quality improvements −Depending on geography, can arbitrage residential time-of-use (TOU) rates and/or participate in utility demand response programs •Lithium Iron Phosphate (LFP) •Lithium Nickel Manganese Cobalt Oxide (NMC) Residential (PV + Storage) •Energy storage system designed for behind-the-meter residential home use—provides backup power, power quality improvements and extends usefulness of self-generation (e.g., PV + storage) −Regulates the power supply and smooths the quantity of electricity sold back to the grid from distributed PV applications •Lithium Iron Phosphate (LFP) •Lithium Nickel Manganese Cobalt Oxide (NMC) I I L A Z A R D ’ S L E V E L I Z E D C O S T O F S T O R A G E A N A L Y S I S—V E R S I O N 8 . 0 Source:Lazard and Roland Berger estimates and publicly available information. (1)For the purposes of this analysis, “energy arbitrage” in the context of storage systems paired with solar PV includes revenue streams associated with the sale of excess generation from the solar PV system, as appropriate, for a given use case. (2)The Value Snapshot analysis only evaluates the 4 hour utility-scale use case. 1 2 3 4 5 6 7 By identifying and evaluating selected energy storage applications, Lazard’s LCOS analyzes the cost of energy storage for in-front-of-the- meter and behind-the-meter use cases 16 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Energy Storage Use Cases—Illustrative Operational Parameters I I L A Z A R D ’ S L E V E L I Z E D C O S T O F S T O R A G E A N A L Y S I S—V E R S I O N 8 . 0 Project Life (Years) Storage (MW)(3) Solar/ Wind (MW) Battery Degradation (per annum) Storage Duration (Hours) Nameplate Capacity (MWh)(4) 90%DOD Cycles/ Day(5) Days/ Year(6) Annual MWh(7) Project MWh In -Fr o n t -of -th e -Me t e r Utility-Scale (Standalone) 20 100 –2.6%1 100 1 350 31,500 630,000 20 100 –2.6%2 200 1 350 63,000 1,260,000 20 100 –2.6%4 400 1 350 126,000 2,520,000 Utility-Scale (PV + Storage)(8)20 50 100 2.6%4 200 1 350 191,000 3,820,000 Utility-Scale (Wind + Storage)(8)20 50 100 2.6%4 200 1 350 366,000 7,320,000 Be h i n d -th e -Me t e r Commercial & Industrial (Standalone) 20 1 –2.6%2 2 1 350 630 12,600 Commercial & Industrial (PV + Storage)(8) 20 0.50 1 2.6%4 2 1 350 1,690 33,800 Residential (Standalone)20 0.006 –1.9%4 0.025 1 350 8 158 Residential (PV + Storage)(8)20 0.006 0.010 1.9%4 0.025 1 350 15 300 = “Usable Energy”(2) A B FCED x =B C G x x = D E F H x =A G Source:Lazard and Roland Berger estimates and publicly available information. Note:Operational parameters presented herein are applied to Value Snapshot and LCOS calculations. Annual and Project MWh in the Value Snapshot analysis may vary from the representative project. (1)The use cases herein represent illustrative current and contemplated energy storage applications. (2)Usable energy indicates energy stored and available to be dispatched from the battery. (3)Indicates power rating of system (i.e., system size). (4)Indicates total battery energy content on a single, 100% charge, or ”usable energy”. Usable energy divided by power rating (in MW) reflects hourly duration of system. This analysis reflects common practice in the market whereby batteries are upsized in year one to 110% of nameplate capacity (e.g., a 100 MWh battery actually begins project life with 110 MWh). (5)“DOD” denotes depth of battery discharge (i.e., the percent of the battery’s energy content that is discharged). A 90% DOD indicates that a fully charged battery discharges 90% of its energy. To preserve battery longevity, this analysis assumes that the battery never charges over 95%, or discharges below 5%, of its usable energy. (6)Indicates number of days of system operation per calendar year. (7)Augmented to nameplate MWh capacity as needed to ensure usable energy is maintained at the nameplate capacity, based on Year 1 storage module cost. (8)For PV + Storage and Wind + Storage cases, annual MWh represents the net output of combined system (generator output, less storage “round trip efficiency” losses) assuming 100% storage charging from the generator. 1 2 3 4 5 6 7 a b c Lazard’s LCOS evaluates selected energy storage applications and use cases by identifying illustrative operational parameters(1) •Energy storage systems may also be configured to support combined/“stacked” use cases 17 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. $79 $59 $135 $104 $252 $194 $210 $125 $251 $120 $256 $197 $380 $224 $102 $80 $180 $143 $323 $258 $247 $171 $288 $161 $282 $229 $402 $277 In-Front-of- the-Meter Utility-Scale Standalone (100 MW, 1 hour) Utility-Scale Standalone (100 MW, 2 hour) Utility-Scale Standalone (100 MW, 4 hour) Utility-Scale PV + Storage(1) (50 MW, 4 hour) (100 MW PV) Utility-Scale Wind + Storage(1) (50 MW, 4 hour) (100 MW Wind) Behind-the- Meter C&I Standalone (1 MW, 2 hour) C&I PV + Storage(1) (0.5 MW, 4 hour) (1 MW PV) Residential Standalone(2) (0.006 MW, 4 hour) Residential PV + Storage(1)(2) (0.006 MW, 4 hour) (0.01 MW PV) $1,595 $1,172 $989 $584 $1,769 $1,408 $1,055 $735 Source:Lazard and Roland Berger estimates and publicly available information. Note:Here and throughout this presentation, unless otherwise indicated, analysis assumes 20% debt at an 8% interest rate and 80% equity at a 12% cost, which is a different capital structure than Lazard’s LCOE analysis and therefore numbers will not tie. Capital costs are comprised of the storage module, balance of system and power conversion equipment, collectively referred to as the energy storage system, equipment (where applicable) and EPC costs. Augmentation costs are included as part of O&M expenses in this analysis and vary across use cases due to usage profiles and lifespans. Charging costs for standalone cases are assessed at the weighted average hourly pricing (wholesale energy prices) across an optimized annual charging profile of the asset. No charging costs are assumed for hybrid systems. See Appendix for charging cost assumptions and additional details. (1)For PV + Storage and Wind + Storage cases, the levelized cost is based on the capital and operating costs of the combined system, levelized over the net output of the combined system. (2)In previous LCOS reports, residential battery storage costs have reflected equipment purchase costs only. For Lazard’s LCOE v16.0 and LCOS v8.0, capital costs for residential battery storage projects includes installation/labor, balance-of-system components and warranties. (3)This sensitivity analysis assumes that projects qualify for the full ITC/PTC and have a capital structure that includes sponsor equity, debt and tax equity. In this analysis only the wind portion of the Wind + Storage system utilizes the PTC. (4)This sensitivity analysis assumes the above and also includes a 10% domestic content adder. Unsubsidized Levelized Cost of Capacity ($/kW-year) Subsidized (excl. Domestic Content)(3)Subsidized (incl. Domestic Content)(4) I I L A Z A R D ’ S L E V E L I Z E D C O S T O F S T O R A G E A N A L Y S I S—V E R S I O N 8 . 0 Levelized Cost of Storage Comparison—Capacity ($/kW-year) Lazard’s LCOS analysis evaluates standalone and hybrid energy storage systems on a levelized basis to derive cost metrics across energy storage use cases and configurations 2 3 1 a 1 b 1 c 4 5 6 7 18 $0 $50 $100 $150 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. In-Front-of- the-Meter Utility-Scale Standalone (100 MW, 1 hour) Utility-Scale Standalone (100 MW, 2 hour) Utility-Scale Standalone (100 MW, 4 hour) Utility-Scale PV + Storage(1) (50 MW, 4 hour) (100 MW PV) Utility-Scale Wind + Storage(1) (50 MW, 4 hour) (100 MW Wind) Behind-the- Meter C&I Standalone (1 MW, 2 hour) C&I PV + Storage(1) (0.5 MW, 4 hour) (1 MW PV) Residential Standalone(2) (0.006 MW, 4 hour) Residential PV + Storage(1)(2) (0.006 MW, 4 hour) (0.01 MW PV) $1,215 $893 $663 $392 $1,348 $1,072 $730 $508 $249 $186 $215 $166 $200 $154 $110 $65 $69 $33 $407 $313 $225 $133 $323 $252 $285 $227 $257 $205 $131 $91 $79 $44 $448 $363 $241 $166 I I L A Z A R D ’ S L E V E L I Z E D C O S T O F S T O R A G E A N A L Y S I S—V E R S I O N 8 . 0 Levelized Cost of Storage Comparison—Energy ($/MWh) Lazard’s LCOS analysis evaluates standalone and hybrid energy storage systems on a levelized basis to derive cost metrics across energy storage use cases and configurations Unsubsidized Levelized Cost of Energy ($/MWh) Subsidized (excl. Domestic Content)(3)Subsidized (incl. Domestic Content)(4) 2 3 1 a 1 b 1 c 4 5 6 7 Source:Lazard and Roland Berger estimates and publicly available information. Note:Here and throughout this presentation, unless otherwise indicated, analysis assumes 20% debt at an 8% interest rate and 80% equity at a 12% cost, which is a different capital structure than Lazard’s LCOE analysis and therefore numbers will not tie. Capital costs are comprised of the storage module, balance of system and power conversion equipment, collectively referred to as the energy storage system, equipment (where applicable) and EPC costs. Augmentation costs are included as part of O&M expenses in this analysis and vary across use cases due to usage profiles and lifespans. Charging costs for standalone cases are assessed at the weighted average hourly pricing (wholesale energy prices) across an optimized annual charging profile of the asset. No charging costs are assumed for hybrid systems. See Appendix for charging cost assumptions and additional details. (1)For PV + Storage and Wind + Storage cases, the levelized cost is based on the capital and operating costs of the combined system, levelized over the net output of the combined system. (2)In previous LCOS reports, residential battery storage costs have reflected equipment purchase costs only. For Lazard’s LCOE v16.0 and LCOS v8.0, capital costs for residential battery storage projects includes installation/labor, balance-of-system components and warranties. (3)This sensitivity analysis assumes that projects qualify for the full ITC/PTC and have a capital structure that includes sponsor equity, debt and tax equity. In this analysis only the wind portion of the Wind + Storage system utilizes the PTC. (4)This sensitivity analysis assumes the above and also includes a 10% domestic content adder. 19 $0 $50 $100 $150 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Use Cases(1) Description Utility-Scale (S) Utility-Scale (PV + S) Utility-Scale (Wind + S) Commercial & Industrial (S) Commercial & Industrial (PV + S) Residential (PV + S) Residential standalone (S) Wh o l e s a l e Demand Response— Wholesale •Manages high wholesale price or emergency conditions on the grid by calling on users to reduce or shift electricity demand Energy Arbitrage •Storage of inexpensive electricity to sell later at higher prices (only evaluated in the context of a wholesale market) Frequency Regulation •Provides immediate (four-second) power to maintain generation-load balance and prevent frequency fluctuations Resource Adequacy •Provides capacity to meet generation requirements at peak load Spinning/ Non- spinning Reserves •Maintains electricity output during unexpected contingency events (e.g., outages) immediately (spinning reserve) or within a short period of time (non-spinning reserve) Ut i l i t y Demand Response— Utility •Manages high wholesale price or emergency conditions on the grid by calling on users to reduce or shift electricity demand Cu s t o m e r Bill Management •Allows reduction of demand charge using battery discharge and the daily storage of electricity for use when time of use rates are highest Backup Power •Provides backup power for use by Residential and Commercial customers during grid outages Value Snapshots—Revenue Potential for Relevant Use Cases Source:Lazard and Roland Berger estimates, Enovation Analytics and publicly available information. (1)Represents the universe of potential revenue streams available to the various use cases. Does not represent the use cases analyzed in the Value Snapshots. I I L A Z A R D ’ S L E V E L I Z E D C O S T O F S T O R A G E A N A L Y S I S—V E R S I O N 8 . 0 Numerous potential sources of revenue available to energy storage systems reflect the benefits provided to customers and the grid •The scope of revenue sources is limited to those captured by existing or soon-to-be commissioned projects—revenue sources that are not clearly identifiable or without publicly available data have not been analyzed 20 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Value Snapshot Case Studies—Overview Source:Lazard and Roland Berger estimates, Enovation Analytics and publicly available information. Note: Actual project returns may vary due to differences in location-specific costs, revenue streams and owner/developer risk preferences. (1)Refers to the California Independent System Operator. (2)Refers to the Electricity Reliability Council of Texas. (3)Refers to Pacific Gas & Electric Company. (4)Refers to Hawaiian Electric Company. I I L A Z A R D ’ S L E V E L I Z E D C O S T O F S T O R A G E A N A L Y S I S—V E R S I O N 8 . 0 Location Description Storage (MW) Generation (MW) Storage Duration (hours)Revenue Streams In -Fr o n t -of -th e - Me t e r Utility-Scale (Standalone) CAISO(1) (SP-15)Large-scale energy storage system 100 –4 •Energy Arbitrage •Frequency Regulation •Resource Adequacy •Spinning/Non-spinning Reserves Utility-Scale (PV + Storage) ERCOT(2) (South Texas) Energy storage system designed to be paired with large solar PV facilities 50 100 4 Utility-Scale (Wind + Storage) ERCOT(2) (South Texas) Energy storage system designed to be paired with large wind generation facilities 50 100 4 Be h i n d -th e -Me t e r Commercial & Industrial (Standalone) PG&E(3) (California) Energy storage system designed for behind-the-meter peak shaving and demand charge reduction for C&I energy users 1 –2 •Demand Response—Utility •Bill Management •Incentives •Tariff Settlement, DR Participation, Avoided Costs to Commercial Customer, Local Capacity Resource Programs and Incentives Commercial & Industrial (PV + Storage) PG&E(3) (California) Energy storage system designed for behind-the-meter peak shaving and demand charge reduction services for C&I energy users 0.5 1 4 Residential (Standalone) HECO(4) (Hawaii) Energy storage system designed for behind-the-meter residential home use— provides backup power and power quality improvements 0.006 –4 •Demand Response—Utility •Bill Management/Tariff Settlement •IncentivesResidential (PV + Storage) HECO(4) (Hawaii) Energy storage system designed for behind-the-meter residential home use— provides backup power, power quality improvements and extends usefulness of self-generation 0.006 0.01 4 1 2 3 4 5 6 7 Lazard’s Value Snapshots analyze the financial viability of illustrative energy storage systems designed for selected use cases 21 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Value Snapshot Case Studies—Overview (cont’d) Lazard’s Value Snapshots analyze the financial viability of illustrative energy storage systems designed for selected use cases I I L A Z A R D ’ S L E V E L I Z E D C O S T O F S T O R A G E A N A L Y S I S—V E R S I O N 8 . 0 Honolulu, Hawaii Residential PV + Storage(2) HECO Project size:0.006 MW / 0.025 MWh 0.010 MW PV Residential Standalone(2) HECO Project size:0.006 MW / 0.025 MWh Los Angeles, California Utility-Scale CAISO Project size:100 MW / 400 MWh 1 San Francisco, California C&I Standalone(1) PG&E Project size:1 MW / 2 MWh C&I PV + Storage(1) PG&E Project size:0.5 MW / 2 MWh 1 MW PV Corpus Christi, Texas Project size:50 MW / 200 MWh 100 MW PV Utility-Scale PV + Storage ERCOT Project size:50 MW / 200 MWh 100 MW Wind Utility-Scale Wind + Storage ERCOT 2 3 4 5 6 7 Source:Lazard and Roland Berger estimates, Enovation Analytics and publicly available information. Note: Project parameters (i.e., battery size, duration, etc.) presented above correspond to the inputs used in the LCOS analysis. (1)Assumes the project provides services under contract with PG&E. (2)Assumes the project provides services under contract with HECO. 22 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Utility-Scale (Standalone) (CAISO) Utility-Scale (PV + Storage) (ERCOT) Utility-Scale (Wind + Storage) (ERCOT) 0 50 100 150 200 250 300 Wholesale Energy Sales Frequency Regulation Spinning/Non-spinning Reserves Resource Adequacy Demand Response—Utility Bill Management Local Incentive Payments C&I (Standalone) (PG&E) C&I (PV+Storage) (PG&E) Residential (Standalone) (HECO) Residential (PV+Storage) (HECO) 0 200 400 600 800 1,000 1,200 $1,400 Value Snapshot Case Studies—Summary Results Project economics evaluated in the Value Snapshot analysis continue to evolve year-over-year as costs change and the value of revenue streams adjust to reflect underlying market conditions, utility rate structures and policy developments I I L A Z A R D ’ S L E V E L I Z E D C O S T O F S T O R A G E A N A L Y S I S—V E R S I O N 8 . 0 <0.0%24.6%16.2%34.1%30.9%27.6%49.2% 1 2 3 4 5 6 7 In-Front-of-the-Meter Revenue Behind-the-Meter Revenue $/MWh $/MWh Subsidized IRR Source:Lazard and Roland Berger estimates, Enovation Analytics and publicly available information. Note:Levelized costs presented for each Value Snapshot reflect local market and operating conditions (including installed costs, market prices, charging costs and incentives) and are different in certain cases from the LCOS results for the equivalent use case on the pages titled “Levelized Cost of Storage Comparison—Energy ($/MWh)”, which are more broadly representative of U.S. storage market conditions versus location- specific. Levelized revenues in all cases show gross revenues (not including charging costs) to be comparable with the levelized cost, which incorporates charging costs. Subsidized levelized cost for each Value Snapshot reflects: (1) average cost structure for storage, solar and wind capital costs, (2) charging costs based on local wholesale prices or utility tariff rates and (3) all applicable state and federal tax incentives, including 30% federal ITC for solar, 30% federal ITC for storage, $26/MWh federal PTC for wind and 35% Hawaii state ITC for solar and solar + storage systems. Value Snapshots do not include cash payments from state or utility incentive programs. Revenues for Value Snapshots (1) –(3) are based on hourly wholesale prices from the 365 days prior to Dec. 15, 2022. Revenues for Value Snapshots (4) –(6) are based on the most recent tariffs, programs and incentives available as of December 2022. 23 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. III Lazard’s Levelized Cost of Hydrogen Analysis— Version 3.0 A P R I L 2 0 2 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Introduction Lazard’s Levelized Cost of Hydrogen (“LCOH”) analysis addresses the following topics: •An overview of the current commercial context for hydrogen in the U.S. •Comparative and illustrative LCOH analysis for various hydrogen power production systems on a $/kg basis •Comparative and illustrative LCOE analysis for gas peaking generation, a key use case in the U.S. power sector, utilizing a 25% blend of Green and Pink hydrogen on a $/MWh basis, including sensitivities for U.S. federal tax subsidies •Appendix materials, including: −An overview of the methodology utilized to prepare Lazard’s LCOH analysis −A summary of the assumptions utilized in Lazard’s LCOH analysis Other factors would also have a potentially significant effect on the results contained herein, but have not been examined in the scope of this current analysis. These additional factors, among others, could include: implementation and interpretation of the full scope of the IRA; development costs of the electrolyzer and associated renewable energy generation facility; conversion, storage and transportation costs of the hydrogen once produced; additional costs to produce alternate products (e.g., ammonia); costs to upgrade existing infrastructure to facilitate the transportation of hydrogen (e.g., natural gas pipelines); electrical grid upgrades; costs associated with modifying end-use infrastructure/equipment to use hydrogen as a fuel source; potential value associated with carbon-free fuel production (e.g., carbon credits, incentives, etc.). This analysis also does not address potential environmental and social externalities, including, for example,water consumption and the societal consequences of displacing the various conventional fuels with hydrogen that are difficult to measure As a result of the developing nature of hydrogen production and its applications, it is important to have in mind the somewhat limited nature of the LCOH (and related limited historical market experience and current market depth). In that regard, we are aware that, as a result of our data collection methodology, some will have a view that electrolyzer cost and efficiency, plus electricity costs, suggest a different LCOH than what is presented herein. The sensitivities presented in our study are intended to address, in part, such views I I I L A Z A R D ’ S L E V E L I Z E D C O S T O F H Y D R O G E N A N A L Y S I S —V E R S I O N 3 . 0 Note:This report has been compiled using U.S.-focused data. 24 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Technology Overview & Commercial Readiness Hydrogen and Hydrogen Production •Hydrogen is currently produced primarily from fossil fuels using steam-methane reforming and methane splitting processes (i.e., “Gray” hydrogen) •A variety of additional processes are available to produce hydrogen from electricity and water (called electrolysis), which are at varying degrees of development and commercial viability, but the two most discussed forms of electrolysis are alkaline and PEM •Alkaline is generally best for large-scale industrial installations requiring a steady H2 output at low pressure while PEM is generally well-suited for off- grid installations powered by highly variable renewable energy sources Hydrogen for Power Generation •Combustion turbines for 100% hydrogen are not commercially available today. Power generators are exploring blending with natural gas as a way to reduce carbon intensity •Several pilots and studies are being conducted and planned in the U.S. today. Most projects include up to 5% hydrogen blend by volume, but some testing facilities have used blends of over 40% hydrogen by volume •Hydrogen for power generation can occur via two different combustion methods: (1) premixed systems (or Dry, Low-NOx (“DLN”) systems) that mix fuel and air upstream before combustion which lowers required temperature and NOx emissions and (2) non-mixed systems that combust fuel and air without premixing which requires water injection to lower NOx emissions Market Activity & Policy Support •Hydrogen is currently used primarily in industrial applications, including oil refining, steel production, ammonia and methanol production and as feedstock for other smaller-scale chemical processes •Clean hydrogen is well-positioned to reduce CO2 emissions in typically “hard-to-decarbonize” sectors such as cement production, centralized energy systems, steel production, transportation and mobility (e.g., forklifts, maritime vessels, trucks and buses) •Natural gas utilities are likely to be early adopters of Green hydrogen as methanation (i.e., combining hydrogen with CO2 to produce methane) becomes commercially viable and pipeline infrastructure is upgraded to support hydrogen blends •The IRA provides a distinct policy push to grow hydrogen production through the hydrogen PTC and ITC. In addition, clean hydrogen would see added lifts from tax and other benefits aimed at clean generation technologies Future Perspectives •Given its versatility as an energy carrier, hydrogen has the potential to be used across industrial processes, power generation and transportation, creating a potential path for decarbonizing energy-intensive industries where current technologies/alternatives are not presently viable •Clean hydrogen is expected to play a significant role in decarbonizing U.S. energy and other industries, including power generation through combustion, feedstock for ammonia, refining processes and e-fuels Overview of Analysis •The LCOH illustratively compares hydrogen produced through electrolysis via renewable power (Green) and nuclear power (Pink) •The analysis also includes the LCOE impact of blending these hydrogen sources with natural gas for power generation •For the analysis, unsubsidized renewables pricing is based on the average LCOE of a wind plant, oversized as compared to the electrolyzer and accounting for costs of curtailment. Unsubsidized nuclear power pricing is based on the average LCOE for an existing nuclear plant •Subsidized costs include the impact of the IRA. The IRA is comprehensive legislation that is still being implemented and remains subject to interpretation—important elements of the IRA are not included in our analysis and could impact outcomes Lazard’s Levelized Cost of Hydrogen (“LCOH”) Analysis—Executive Summary I I I L A Z A R D ’ S L E V E L I Z E D C O S T O F H Y D R O G E N A N A L Y S I S —V E R S I O N 3 . 0 Source:Lazard and Roland Berger estimates and publicly available information. 25 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. I I I L A Z A R D ’ S L E V E L I Z E D C O S T O F H Y D R O G E N A N A L Y S I S —V E R S I O N 3 . 0 Hydrogen Applications in Today’s Economy Today,most hydrogen is produced using fossil sources (i.e., Gray hydrogen) and is used primarily in refining and chemicals sectors,but clean (i.e., Blue, Green or Pink) hydrogen is expected to play an important role in several new growth sectors, including power generation 8.5 8.1 7.8 2.9 3.2 3.5 0.9 1.6 2.70.1 0.31.2 6.8 0.7 4.8 0.5 1.3 0.1 1.2 0.2 1.2 0 5 10 15 20 25 2021 LDC Blending 2030E Power Generation Aviation Fuel 2040E Petroleum Refining Ammonia Road Transport Steelmaking Shipping Fuel 30 Methanol 23% 31% 284% 21% 30% 12% 6% 1% 0% CAGR ‘21–‘40 Forecasted U.S. Hydrogen Demand (million tons) 16 12 Overview of Hydrogen Color Spectrum •Hydrogen production can be divided into “conventional” and “clean” hydrogen: •Conventional: −Gray: Almost all hydrogen produced in the U.S. today is through steam- methane reforming, where hydrogen is separated from natural gas. Carbon dioxide is a byproduct of this process −Black (or Brown): Uses steam and oxygen to break molecules in coal into a gaseous mixture resulting in streams of hydrogen and carbon dioxide •A catch-all, Yellow hydrogen is produced through electrolysis using grid electricity •“Clean” hydrogen comes in several colors, which are based on the production process, including: −Blue:Black, Brown or Gray hydrogen, but with carbon emissions captured or stored −Green:Renewable power used for electrolysis, where water molecules are split into hydrogen and oxygen using electricity −Pink:Nuclear power used for electrolysis •Other novel production processes include Turquoise hydrogen from methane pyrolysis,which uses thermal splitting of methane into hydrogen and solid carbon and is considered carbon-free if using electricity from renewable sources Implications for the Power Sector •Several utilities and developers have started exploring co-firing clean hydrogen with natural gas in combustion turbines to reduce emissions •Clean hydrogen production as a method to store renewable energy could utilize what would otherwise be curtailed renewable load and turn this energy into carbon-free dispatchable load, allowing for higher penetration of intermittent renewable resources, while also impacting capacity market prices and seasonal pricing peaks Key Hydrogen Terms and Implications for the Power Sector Source:Lazard and Roland Berger estimates and publicly available information. 26 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Green Hydrogen PEM (20 –100 MW) Alkaline (20 –100 MW) Pink Hydrogen PEM (20 –100 MW) Alkaline (20 –100 MW) $4.77 $1.68 $3.79 $0.83 $3.47 $1.16 $2.75 $0.48 $7.37 $4.28 $5.78 $2.83 $5.29 $2.99 $4.08 $1.81 $0.00 $1.00 $2.00 $3.00 $4.00 $5.00 $6.00 $7.00 $8.00 I I I L A Z A R D ’ S L E V E L I Z E D C O S T O F H Y D R O G E N A N A L Y S I S —V E R S I O N 3 . 0 Subsidized Green and Pink hydrogen can reach levelized production costs under $2/kg—fully depreciated operating nuclear plants yield higher capacity factors and, when only accounting for operating expenses, Pink can reach production levels lower than Green hydrogen Levelized Cost of Hydrogen Analysis—Illustrative Results Levelized Cost of Hydrogen ($/kg) Unsubsidized Subsidized (excl. Domestic Content)(1) Source:Lazard and Roland Berger estimates and publicly available information. Note: Here and throughout this presentation, unless otherwise indicated, this analysis assumes electrolyzer capital expenditure assumptions based on high and low values of sample ranges, with additional capital expenditure for hydrogen storage. Capital expenditure for underground hydrogen storage assumes $20/kg storage cost, sized at 120 tons for Green H2 and 200 tons for Pink H2 (size is driven by electrolyzer capacity factors). Pink hydrogen costs are based on marginal costs for an existing nuclear plant (see Appendix for detailed assumptions). (1)This sensitivity analysis assumes that projects qualify for the full PTC and have a capital structure that includes sponsor equity, debt and tax equity. The IRA is comprehensive legislation that is still being implemented and remains subject to interpretation—important elements of the IRA are not included in our analysis and could impact outcomes. 27 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Green Hydrogen PEM (20 MW) Alkaline (20 MW) Pink Hydrogen PEM (20 MW) Alkaline (20 MW) Source:Lazard and Roland Berger estimates and publicly available information. Note:The analysis presented herein assumes a fuel blend of 25% hydrogen and 75% natural gas. Results are driven by Lazard’s approach to calculating the LCOE and selected inputs (see Appendix for further details). Natural gas fuel cost assumed $3.45/MMBtu, hydrogen fuel cost based on LCOH $/kg for case scenarios, assumes 8.8 kg/MMBtu for hydrogen. Analysis includes hydrogen storage costs for a maximum of 8 hour peak episodes for a maximum of 7 days per year, resulting in additional costs of $120/kW (Green) and $190/kW (Pink). (1)This sensitivity analysis assumes that projects qualify for the full PTC and have a capital structure that includes sponsor equity, debt and tax equity. The IRA is comprehensive legislation that is still being implemented and remains subject to interpretation—important elements of the IRA are not included in our analysis and could impact outcomes. I I I L A Z A R D ’ S L E V E L I Z E D C O S T O F H Y D R O G E N A N A L Y S I S —V E R S I O N 3 . 0 While hydrogen-ready natural gas turbines are still being tested, preliminary results, including our illustrative LCOH analysis,indicate that a 25% hydrogen by volume blend is feasible and cost competitive Levelized Cost of Energy—Gas Peaking Plant with 25% Hydrogen Blend 28 Reference LCOE Gas Peaking at 0% H2 blend ($173/MWh) $178 $198 $185 $206 $184 $210 $193 $220 $186 $206 $196 $217 $195 $221 $208 $235 $0 $25 $50 $75 $100 $125 $150 $175 $200 $225 $250 $275 $300 Lazard’s LCOE v16.0 Gas Peaking Range: $115 –$221/MWh Levelized Cost of Energy ($/MWh) Unsubsidized Subsidized (excl. Domestic Content)(1) Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Appendix A P R I L 2 0 2 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. A Maturing Technologies A P R I L 2 0 2 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Introduction Lazard’s preliminary perspectives on selected maturing technologies addresses the following topics: •Lazard’s Carbon Capture & Storage (“CCS”) System perspectives −An overview of key findings and observed trends in the CCS sector −A comparative levelized cost of CCS for power generation on a $/MWh basis, including selected sensitivities for U.S. federal tax subsidies −An illustrative view of the value-add of CCS when included as an element of a new-build and retrofitted combined cycle gas plant −A comparison of capital costs on a $/kW basis for both new-build natural gas plants with CCS technology and existing natural gas plants retrofitted with CCS technology •Lazard’s Long Duration Energy Storage (“LDES”) analysis −An overview of key findings and observed trends in the LDES sector −A comparative levelized cost for three selected types of LDES technologies, including selected sensitivities for U.S. federal tax subsidies Other factors would also have a potentially significant effect on the results contained herein, but have not been examined in the scope of this current analysis. These additional factors, among others, could include: implementation and interpretation of the full scope of the IRA; development costs of the carbon capture or LDES system or associated generation facility; conversion, storage or transportation costs of the CO2 once past the project site; costs to upgrade existing infrastructure to facilitate the transportation of CO2; potential value associated with carbon-free fuel production (e.g., carbon credits, incentives, etc.); potential value associated with energy storage revenue (e.g., capacity payments, demand response, energy arbitrage, etc.); network upgrades, transmission, congestion or other integration-related costs; permitting or other development costs, unless otherwise noted; and costs of complying with various regulations (e.g., federal import tariffs or labor requirements). This analysis also does not address potential environmental and social externalities, including, for example, water consumption and the societal consequences of storing or transporting CO2, material mining and land use Importantly, this analysis is preliminary in nature, largely directional and does not fully take into account the maturing nature of the technologies analyzed herein A M A T U R I N G T E C H N O L O G I E S Note:This report has been compiled using U.S.-focused data. 29 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. 1 Carbon Capture & Storage Systems A P R I L 2 0 2 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Technology Overview & Commercial Readiness •CCS refers to technologies designed to sequester carbon dioxide emissions, particularly from power generation or industrial sources •The core technology involves a specialized solvent or other material that enables the capture of carbon dioxide from a gas stream (usually an exhaust gas) •Oxycombustion is emerging as a potential new type of natural gas power plant design that integrates CO2 capture in the combustion cycle for a claimed 100% capture rate •In power generation, CCS can be applied as a retrofit to existing coal and gas-fired power plants or incorporated into new-build plants •CO2 capture rates are currently 80% –90%, with a near-term goal of 95%+ •Current “post-combustion” CCS technologies require power plants to operate close to full load in order to maintain high capture rates •CCS systems require energy input and represent a parasitic load on the generation unit effectively increasing the “heat rate”of the generator •CCS also requires compression, transportation and either secure permanent underground storage of carbon dioxide or alternate end-use •To date, there are very few completed power generation CCS project examples Market Activity & Policy Support •CCS has attracted significant interest and investment from various market participants •Project costs, especially for retrofits, are highly dependent upon site characteristics •The Department of Energy (“DOE”)/National Energy Technology Laboratory (“NETL”) have provided significant support for the emerging CCS sector by funding engineering studies and collecting cost estimates and performance data •The IRA has increased the tax credit for carbon sequestration to $85/ton, providing a significant subsidy for CCS deployment that can offset much of the increased capital and operating costs of a CCS retrofit or new-build with CCS •A number of power sector CCS projects are being developed to retrofit existing coal and natural gas power plants, some of which are expected to be completed by the middle of the decade Future Perspectives •Natural gas power generation will continue to play an important role in grid reliability, especially as renewable penetration increases and more coal retires •CCS has the potential to allow natural gas plants to remain in operation as the U.S. continues to rapidly decarbonize its power grid •CCS costs are still high, and given that the majority of the capital cost of a CCS system consists of balance-of-system components, innovations in solvents and other core capture technologies may not result in significant cost reductions •New technologies such as oxycombustion systems may represent meaningful improvements in capture efficiency and cost •The deployment of any CCS technology depends on the availability of either offtake or permanent CO2 storage reservoirs (placing geographic limitations on deployment) and the validation of the security of permanent storage (in avoiding CO2 leakage) Overview of Analysis •The illustrative analysis presented herein is limited to post-combustion CCS for power generation •Two cases are included: (1) an amine CCS system retrofitted to an existing natural gas combined cycle plant and (2) an amine CCS system with a new-build natural gas combined cycle plant •CO2 transportation and storage costs are assumed to be fixed across both cases at $23/ton •Subsidized costs include the impact of the IRA. The IRA is comprehensive legislation that is still being implemented and remains subject to interpretation—important elements of the IRA are not included in our analysis and could impact outcomes Lazard’s Carbon Capture & Storage Analysis—Executive Summary 1 C A R B O N C A P T U R E & S T O R A G E S Y S T E M S Source:Lazard and Roland Berger estimates and publicly available information. 30 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. $84 $59 $66 $40 $128 $103 $110 $86 $0 $25 $50 $75 $100 $125 $150 Retrofitted CCGT with CCS New Build Power Plant with CCS Levelized Cost of Energy—Gas Combined Cycle + CCS System Unsubsidized Levelized Cost of Energy ($/MWh) Subsidized (excl. Domestic Content)(4) CCS systems benefit from federal subsidies through the IRA, making the LCOE of a gas combined cycle plant plus a CCS system cost- competitive with a standalone gas combined cycle plant in both a retrofit and new-build scenario (2) 1 C A R B O N C A P T U R E & S T O R A G E S Y S T E M S Retrofitted Gas Combined Cycle(1) with CCS(2) New-Build Gas Combined Cycle(3)with CCS(2) Lazard’s LCOE v16.0 Gas Combined Cycle Range: $39 –$101/MWh LCOE 550 MW Gas Combined Cycle Plus CCS System Reference LCOE of Gas Combined Cycle plus CCS 50% Capacity Factor ($74/MWh) Source:Lazard and Roland Berger estimates and publicly available information. Note:The fuel cost assumption for Lazard’s analysis for gas-fired generation resources is $3.45/MMBTU. (1)Represents the LCOE of a combined system, new CCS with a useful life of 12 years and LCOE of Gas Combined Cycle including remaining book value of retrofitted power plant. The low case represents an 85% capacity factor while the high case represents a 50% capacity factor. (2)Represents a 2 million-ton CO2 plant and generation heat rate increases of 11% for the low case (85% capacity factor) and 21% for the high case (50% capacity factor) due to fixed usage of parasitic power by the CCS equipment. (3)Represents the LCOE of a combined system with a useful life of 20 years. The low case represents an oxycombustion CCS system with a capacity factor of 92.5% and a $10/MWh benefit for industrial gas sales. The high case represents a Gas Combined Cycle + CCS with a capacity factor of 50% and a $2.50/MWh benefit for industrial gas sales. (4)Subsidized value assumes $85/ton CO2 credit for 12 years with nominal carbon capture rate of 95% for Gas Combined Cycle + CCS and 100% nominal capture rate for oxycombustion. Assumes an emissions rate of 0.41 ton CO2 per MWh generated. All costs include a $23/ton CO2 cost of transportation and storage. There is no domestic content adder available for the CO2 tax credit. The IRA is comprehensive legislation that is still being implemented and remains subject to interpretation—important elements of the IRA are not included in our analysis and could impact outcomes. 31 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Lazard’s LCOE v16.0 Gas Combined Cycle Capital Cost Range: $650 –$1,300/kW Carbon Capture & Storage Systems—Capital Cost Comparison (Unsubsidized) Capital Cost ($/kW) 1 C A R B O N C A P T U R E & S T O R A G E S Y S T E M S Source:Lazard and Roland Berger estimates and publicly available information. (1)Represents an assumed 2-million-ton CO2 plant and 550 MW Gas Combined Cycle generation at 85% capacity factor. (2)Represents an assumed $440 –$550/ton CO2 of nameplate capacity CCS system. (3)Represents an assumed $700 –$1,300/kW for Gas Combined Cycle and $400 –$500/ton CO2 of nameplate capacity for CCS. (4)New-build range also includes a capital expenditure estimate for a 280 MW oxycombustion project. 32 CCS costs are still high and the majority of the capital cost of a CCS system consists of balance-of-system components $1,042 $1,547 $1,965 $3,086 $0 $500 $1,000 $1,500 $2,000 $2,500 $3,000 $3,500 Retrofitted CCGT - CCS Cost Only New Build Power Plant with CCS 550 MW Gas Combined Cycle Plus CCS System Retrofitted Gas Combined Cycle—CCS Cost Only(1)(2) New-Build Power Plant with CCS(1)(3)(4) Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. 2 Long Duration Energy Storage A P R I L 2 0 2 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Technology Overview & Commercial Readiness •LDES technologies are emerging alternatives to lithium-ion batteries because they have the potential to be more economical at storage durations of 6 –8+ hours •Technological categories include electrochemical (including flow batteries and other non-lithium chemistries), mechanical (including compressed air storage) and thermal •A key challenge for LDES economics is the round-trip efficiency or the percentage of the stored energy that can later be output.Currently, LDES technologies have round trip efficiencies, which are varied but generally less than the 85% –90% for lithium-ion battery systems •LDES technologies generally do not rely on scarce or expensive mineral inputs, but they can require increased engineering, labor and site work compared to lithium-ion, particularly for mechanical storage solutions •Most LDES technologies have not yet reached commercialization due to technology immaturity and, with limited deployments, seemingly none of the emerging LDES technologies have achieved the track record for performance required to be fully bankable Market Activity & Policy Support •Emerging LDES technology companies have attracted significant capital investment in the past 5 years •To date, LDES deployments have generally been limited to pilot/early commercial scale •LDES providers are generally seeking to reach commercial manufacturing scale by the end of the decade to be able to support grid-scale deployments that are cost-competitive •The U.S. DOE’s concerted funding initiatives, along with the IRA ITC for energy storage resources support and somewhat de-risk LDES deployment •LDES technologies are divorced from the lithium-ion/electric vehicle supply chain, which may confer attractiveness in the short term given increased lithium costs and ongoing supply chain concerns •However, Industry participants are still evaluating the system need for long duration storage as well as appropriate market mechanisms and signals Future Perspectives •At increasingly high wind and solar penetrations, there will be a need for resources that can provide capacity over longer durations in order to meet overall capacity and reliability requirements •LDES technologies could potentially serve this function and enable higher levels of decarbonized power generation as a substitute for traditional "peaking" resources •Market structures and pricing signals may be established/adopted to reflect identified value of longer duration storage resources •LDES technologies will compete with, among other things, green hydrogen (generation and storage), natural gas generators with carbon capture systems and advanced nuclear reactors to provide capacity to a decarbonized power grid (assuming viability/acceptability of the relevant LDES technologies) Overview of Analysis •The illustrative analysis presented herein includes non-lithium technologies and compares the levelized costs of several flow battery cases along with a compressed air energy system (“CAES”) case •All systems are 100 MW, 8 hour systems with one cycle per day at maximum charge and depth of discharge (maximum stored energy output given round trip efficiency) •Subsidized costs include the impact of the IRA. The IRA is comprehensive legislation that is still being implemented and remains subject to interpretation—important elements of the IRA are not included in our analysis and could impact outcomes Lazard’s Long Duration Energy Storage Analysis—Executive Summary 2 L O N G D U R A T I O N E N E R G Y S T O R A G E Source:Lazard and Roland Berger estimates and publicly available information. 33 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. 2 L O N G D U R A T I O N E N E R G Y S T O R A G E Electrochemical Mechanical Thermal Description •Energy storage systems generating electrical energy from chemical reactions •Solutions that store energy as a kinetic, gravitational potential or compression/pressure medium •Solutions stocking thermal energy by heating or cooling a storage medium Typical Technologies •Flow batteries (vanadium, zinc- bromide) •Sodium-sulfur •Iron-air •Adiabatic and cryogenic compressed liquids (change in internal energy) •Geo-mechanical pumped hydro •Gravitational •Latent heat (phase change) •Sensible heat (molten salt) Selected Advantages •No degradation •Cycling throughout the day •Modular options available •Considered safe •Considered safe •Attractive economics •Proven technologies (e.g., pumped hydro) •Able to leverage matureindustrialcryogenictechnology base •Inexpensive materials •Power/energy independent •Scalable Selected Disadvantages •Membrane materials costly •Difficult to mass produce •Scalability unclear •Large volumetric storage sites •Difficult to modularize •Cycling typically limited to once per day •Reduced energy density •Cryogenic safety concerns •Cannot modularize after install Key Challenges •Expensive ion-exchange membranesrequireddueto voltage and electrolytestress •Less compact (lower energy density) •Geographic limitations of some sub-technologies •Low efficiency of diabatic systems •Visibility into peak and off-peak •Climate impact on effectiveness •Scale of application (e.g.,bestfordistrictheating) LDES technologies typically fall into three main technological categories that provide unique advantages and disadvantages and also make them suitable (or not) across a variety of use cases Long Duration Energy Storage Technologies—Overview Source:Lazard and Roland Berger estimates and publicly available information. 34 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Electrochemical(1) 100 MW, 8 hour Mechanical(2) 100 MW, 8 hour Thermal(3) 100 MW, 8 hour $127 $99 $158 $126 $178 $142 $221 $188 $215 $176 $253 $211 $0 $50 $100 $150 $200 $250 $300 $350 $400 2 L O N G D U R A T I O N E N E R G Y S T O R A G E The LCOE of LDES technologies is expected to be competitive with lithium-ion for large-scale 8 hour systems in the second half of the decade, with anticipated unit cost advantages at longer durations overcoming lower round-trip efficiency Levelized Cost of Energy—Illustrative LDES at Scale Source:Lazard and Roland Berger estimates and publicly available information. Note:All cases assume a 20-year system life and 1 cycle per day at maximum depth-of-discharge. (1)Electrochemical includes flow batteries (vanadium redox, zinc bromine) and non-flow (liquid metal). (2)Mechanical includes CAES and liquified air energy storage (”LAES”). (3)Thermal includes sensible heat storage solutions (molten salt). (4)This sensitivity analysis assumes that projects qualify for the full standalone storage ITC. (5)This sensitivity analysis assumes the above and also includes a 10% domestic content adder. The IRA is comprehensive legislation that is still being implemented and remains subject to interpretation—important elements of the IRA are not included in our analysis and could impact outcomes. Unsubsidized Subsidized(4)Subsidized with Domestic Content Adder(5) Levelized Cost of Storage ($/MWh) Lazard’s LCOS v8.0 Utility-Scale (100 MW, 4 hour) Subsidized: $154 –$205/MWh 35 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. B LCOE v16.0 A P R I L 2 0 2 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Year 0 1 2 3 4 5 6 7 20 Key Assumptions Capacity (MW)(A)175 175 175 175 175 175 175 175 Capacity (MW) 175 Capacity Factor (B)55%55%55%55%55%55%55%55%Capacity Factor 55% Total Generation ('000 MWh)(A) x (B) = (C)*843 843 843 843 843 843 843 843 Fuel Cost ($/MMBtu)$0.00 Levelized Energy Cost ($/MWh)(D)$24.4 $24.4 $24.4 $24.4 $24.4 $24.4 $24.4 $24.4 Heat Rate (Btu/kWh) 0 Total Revenues (C) x (D) = (E)*$20.6 $20.6 $20.6 $20.6 $20.6 $20.6 $20.6 $20.6 Fixed O&M ($/kW-year) $20.0 Variable O&M ($/MWh)$0.0 Total Fuel Cost (F)----------------O&M Escalation Rate 2.25% Total O&M (G)*3.5 3.6 3.7 3.7 3.8 3.9 4.0 5.5 Capital Structure Total Operating Costs (F) + (G) = (H)$3.5 $3.6 $3.7 $3.7 $3.8 $3.9 $4.0 $5.5 Debt 60.0% Cost of Debt 8.0% EBITDA (E) - (H) = (I)$17.1 $17.0 $16.9 $16.8 $16.7 $16.7 $16.6 $15.1 Tax Investors 0.0% Cost of Equity for Tax Investors 10.0% Debt Outstanding - Beginning of Period (J) $107.6 $105.5 $103.2 $100.7 $98.0 $95.1 $92.0 $9.9 Equity 40.0% Debt - Interest Expense (K)(8.6)(8.4)(8.3)(8.1)(7.8)(7.6)(7.4)(0.8)Cost of Equity 12.0% Debt - Principal Payment (L)(2.1)(2.3)(2.5)(2.7)(2.9)(3.1)(3.4)(9.9)Taxes and Tax Incentives: Levelized Debt Service (K) + (L) = (M)($10.7)($10.7)($10.7)($10.7)($10.7)($10.7)($10.7)($10.7)Combined Tax Rate 40% Economic Life (years) 20 EBITDA (I)$17.1 $17.0 $16.9 $16.8 $16.7 $16.7 $16.6 $15.1 MACRS Depreciation (Year Schedule) 5 Depreciation (MACRS)(N)(35.9)(57.4)(34.4)(20.7)(20.7)(10.3)0.0 0.0 PTC (+10% for Domestic Content)$0.0 Interest Expense (K)(8.6)(8.4)(8.3)(8.1)(7.8)6.3 16.6 (0.8)PTC Escalation Rate 1.5% Taxable Income (I) + (N) + (K) = (O) ($27.4)($48.8)($25.8)($11.9)($11.8)($7.6)($7.4)$14.3 Capex EPC Costs ($/kW)$1,025 Federal Production Tax Credit Value (P)$0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 Additional Owner's Costs ($/kW)$0 Federal Production Tax Credit Received (P) x (C) = (Q)*$0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 Transmission Costs ($/kW)$0 Tax Benefit (Liability)(O) x (tax rate) + (Q) = (R)$11.0 $19.5 $10.3 $4.8 $4.7 $0.0 $0.0 $0.0 Total Capital Costs ($/kW)$1,025 Capital Expenditures ($71.8)($107.6)$0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 Total Capex ($mm)$179 After-Tax Net Equity Cash Flow (I) + (M) + (R) = (S)($71.8)$17.3 $25.8 $16.5 $10.8 $10.7 $0.0 $0.0 ($1.4) Cash Flow Distribution Cash Flow to Equity Investors (S) x (% to Equity Investors)($71.8)$17.3 $25.8 $16.5 $10.8 $10.7 $6.4 $2.1 ($1.4)Portion to Tax Investors (After Return is Met)1% IRR For Equity Investors 12.0% Lazard’s LCOE analysis consists of creating a power plant model representing an illustrative project for each relevant technology and solving for the $/MWh value that results in a levered IRR equal to the assumed cost of equity (see subsequent “Key Assumptions” pages for detailed assumptions by technology) Source:Lazard and Roland Berger estimates and publicly available information. Note:Onshore Wind—Low LCOE case presented for illustrative purposes only. *Denotes unit conversion. (1)Assumes half-year convention for discounting purposes. (2)Assumes full monetization of tax benefits or losses immediately. (3)Reflects initial cash outflow from equity investors. (4)Reflects a “key” subset of all assumptions for methodology illustration purposes only. Does not reflect all assumptions. (5)Economic life sets debt amortization schedule. For comparison purposes, all technologies calculate LCOE on a 20-year IRR basis. Levelized Cost of Energy Comparison—Methodology ($ in millions, unless otherwise noted) B L C O E V 1 6 . 0 Technology-dependent Levelized (1) Unsubsidized Onshore Wind —Low Case Sample Illustrative Calculations (5) (2) (4) (3) 36 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Solar PV Rooftop—Residential Community and C&I Utility-Scale Utility Scale + Storage Units Low Case High Case Low Case High Case Low Case High Case Low Case High Case Net Facility Output MW 0.005 5 150 100 Total Capital Costs $/kW $2,230 Fixed O&M $/kW-yr $15.00 Variable O&M $/MWh –––––––– Heat Rate Btu/kWh –––––––– Capacity Factor %20% Fuel Price $/MMBTU –– –––– –– Construction Time Months 3 4 Facility Life Years 25 30 30 30 Levelized Cost of Energy $/MWh $117 Levelized Cost of Energy—Key Assumptions B L C O E V 1 6 . 0 (1) Source:Lazard and Roland Berger estimates and publicly available information. (1)Includes capitalized financing costs during construction for generation types with over 12 months of construction time. 37 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Geothermal Wind—Onshore Wind—Onshore + Storage Wind—Offshore Units Low Case High Case Low Case High Case Low Case High Case Low Case High Case Net Facility Output MW 250 175 100 1000 Total Capital Costs $/kW $4,700 Fixed O&M $/kW-yr $14.00 Variable O&M $/MWh $8.75 Heat Rate Btu/kWh –––––––– Capacity Factor %90% Fuel Price $/MMBTU –––––––– Construction Time Months 36 12 12 12 Facility Life Years 25 20 20 20 Levelized Cost of Energy $/MWh $61 B L C O E V 1 6 . 0 Source:Lazard and Roland Berger estimates and publicly available information. (1)Given the limited data set available for new-build geothermal projects, the LCOE presented herein represents Lazard’s LCOE v15.0 results adjusted for inflation. (2)Includes capitalized financing costs during construction for generation types with over 12 months of construction time. Levelized Cost of Energy—Key Assumptions (cont’d) (2) (1) 38 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. B L C O E V 1 6 . 0 Levelized Cost of Energy—Key Assumptions (cont’d) Gas Peaking Nuclear (New Build)Coal (New Build) Gas Combined Cycle (New Build) Units Low Case High Case Low Case High Case Low Case High Case Low Case High Case Net Facility Output MW 240 –50 2,200 600 550 Total Capital Costs $/kW $700 –$1,150 $8,475 –$13,925 $3,200 –$6,775 $650 –$1,300 Fixed O&M $/kW-yr $7.00 –$17.00 $131.50 –$152.75 $39.50 –$91.25 $10.00 –$17.00 Variable O&M $/MWh ––$4.25 –$5.00 $3.00 –$5.50 $2.75 –$5.00 Heat Rate Btu/kWh ––10,450 8,750 –12,000 6,150 –6,900 Capacity Factor %15%–10%92%–89%85%–65%90%–30% Fuel Price $/MMBTU –– $0.85 $1.47 $3.45 Construction Time Months 12 69 60 –66 24 Facility Life Years 20 40 40 20 Levelized Cost of Energy $/MWh $115 –$221 $141 –$221 $68 –$166 $39 –$101 (3) Source:Lazard and Roland Berger estimates and publicly available information. (1)Given the limited public and/or observable data set available for new-build nuclear projects and the emerging range of new nuclear generation strategies, the LCOE presented herein represents Lazard’s LCOE v15.0 results adjusted for inflation (results are based on then-estimated costs of the Vogtle Plant and are U.S.-focused). (2)High end incorporates 90% CCS. Does not include cost of transportation and storage. Given the limited public and/or observable data set available for new-build coal projects, the LCOE presented herein represents Lazard’s LCOE v15.0 results adjusted for inflation. (3)Includes capitalized financing costs during construction for generation types with over 12 months of construction time. (1)(2) 39 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. B L C O E V 1 6 . 0 Levelized Cost of Energy—Key Assumptions (cont’d) x Nuclear (Operating)Coal (Operating) Gas Combined Cycle (Operating) Units Low Case High Case Low Case High Case Low Case High Case Net Facility Output MW 2,200 600 550 Total Capital Costs $/kW $0.00 $0.00 $0.00 Fixed O&M $/kW-yr $97.25 –$120.00 $18.50 –$31.00 $9.25 –$14.00 Variable O&M $/MWh $3.05 –$3.55 $2.75 –$5.50 $1.00 –$2.00 Heat Rate Btu/kWh 10,400 10,075 –11,075 6,925 –7,450 Capacity Factor %95%–90%65%–35%70%–45% Fuel Price $/MMBTU $0.79 $1.89 –$4.33 $6.00 –$7.69 Construction Time Months 69 60 –66 24 Facility Life Years 40 40 20 Levelized Cost of Energy $/MWh $29 –$34 $29 –$74 $51 –$73 Source:Lazard and Roland Berger estimates and publicly available information. (1)Includes capitalized financing costs during construction for generation types with over 12 months of construction time. (1) 40 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. C LCOS v8.0 A P R I L 2 0 2 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Year 0 1 2 3 4 5 20 Key Assumptions Capacity (MW)(A)100 100 100 100 100 100 Power Rating (MW)100 Available Capacity (MW)110 109 106 103 100 110 102 Duration (Hours)2 Total Generation ('000 MWh)(B)*63 63 63 63 63 63 Usable Energy (MWh)200 Levelized Storage Cost ($/MWh)(C)$178 $178 $178 $178 $178 $178 90% Depth of Discharge Cycles/Day 1 Total Revenues (B) x (C) = (D)*$11.2 $11.2 $11.2 $11.2 $11.2 $11.2 Operating Days/Year 350 Charging Cost ($/kWh)$0.064 Total Charging Cost (E)(4.4)(4.5)(4.6)(4.7)(4.8)(6.3)Fixed O&M Cost ($/kWh)$1.30 Total O&M, Warranty, & Augmentation (F)*(0.3)(0.3)(0.6)(0.6)(4.3)(0.8)Fixed O&M Escalator (%)2.5% Total Operating Costs (E) + (F) = (G)($4.7)($4.8)($5.2)($5.3)($9.1)($7.1)Charging Cost Escalator (%)1.87% Efficiency (%)91% EBITDA (D) - (G) = (H)$6.5 $6.4 $5.9 $5.8 $2.1 $4.1 Capital Structure Debt Outstanding - Beginning of Period (I)$11.7 $11.4 $11.2 $10.9 $10.5 $1.1 Debt 20.0% Debt - Interest Expense (J)(0.9)(0.9)(0.9)(0.9)(0.8)(0.1)Cost of Debt 8.0% Debt - Principal Payment (K)(0.3)(0.3)(0.3)(0.3)(0.3)(1.1)Equity 80.0% Levelized Debt Service (J) + (K) = (L)(1.2)(1.2)(1.2)(1.2)(1.2)(1.2)Cost of Equity 12.0% EBITDA (H)$6.5 $6.4 $5.9 $5.8 $2.1 $4.1 Taxes Depreciation (5-yr MACRS)(M)(9.9)(15.9)(9.5)(5.7)(5.7)0.0 Combined Tax Rate 21.0% Interest Expense (J)(0.9)2.8 0.0 (0.0)0.0 0.0 Contract Term / Project Life (years)20 Taxable Income (H) + (M) + (J) = (N)($4.4)($6.6)($3.6)$0.1 ($3.6)$4.1 MACRS Depreciation Schedule 5 Years Federal ITC - BESS 30% Tax Benefit (Liability)(N) x (Tax Rate) = (O)$0.9 $1.4 $0.8 ($0.0)$0.8 ($0.9) Capex Federal Investment Tax Credit (ITC)(P)$17.5 $0.0 $0.0 $0.0 $0.0 $0.0 Total Initial Installed Cost ($/kWh)$292 Extended Warranty (% of Capital Cost)0.7% Capital Expenditures ($46.7)($11.7)$0.0 $0.0 $0.0 $0.0 $0.0 Extended Warranty Start Year 3 After-Tax Net Equity Cash Flow (H) + (L) + (O) + (P) = (Q)($46.7)$23.7 $6.6 $5.5 $4.6 $1.7 $2.1 Total Capex ($mm)$58 IRR For Equity Investors 12.0% Source:Lazard and Roland Berger estimates and publicly available information. Note:Subsidized Utility-Scale (100 MW / 200 MWh)—Low LCOS case presented for illustrative purposes only. * Denotes unit conversion. (1)Assumes half-year convention for discounting purposes. (2)Total Generation reflects (Cycles) x (Available Capacity) x (Depth of Discharge) x (Duration). Note for the purpose of this analysis, Lazard accounts for Degradation in the Available Capacity calculation. (3)Charging Cost reflects (Total Generation) / [(Efficiency) x (Charging Cost) x (1 + Charging Cost Escalator)]. (4)O&M costs include general O&M ($1.30/kWh, plus any relevant Solar PV or Wind O&M, escalating annually at 2.5%), augmentation costs (incurred in years needed to maintain usable energy at original storage module cost) and warranty costs (0.7% of equipment, starting in year 3). (5)Reflects a ”key” subset of all assumptions for methodology illustration purposes only. Does not reflect all assumptions. (6)Initial Installed Cost includes Inverter cost of $35/kW, Module cost of $188/kWh, Balance-of-System cost of $30/kWh and EPC cost of $30/kWh. (7)Reflects initial cash outflow from equity sponsor. Levelized Cost of Storage Comparison—Methodology Lazard’s LCOS analysis consists of creating a power plant model representing an illustrative project for each relevant technology and solving for the $/MWh value that results in a levered IRR equal to the assumed cost of equity (see subsequent “Key Assumptions” pages for detailed assumptions by technology) C L C O S V 8 . 0 Subsidized Utility-Scale (100 MW / 200 MWh)—Low Case Sample Calculations (1) Use-case specific Global assumptions (5) (4) (6) (2) (3) (7) 41 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Levelized Cost of Storage—Key Assumptions Source:Lazard and Roland Berger estimates and publicly available information. Note:Assumed capital structure of 80% equity (with a 12% cost of equity) and 20% debt (with an 8% cost of debt). Capital cost units are the total investment divided by the storage equipment’s energy capacity (kWh rating) and inverter rating (kW rating). All cases were modeled using 90% depth of discharge. Wholesale charging costs reflect weighted average hourly wholesale energy prices across a representative charging profile of a standalone storage asset participating in wholesale revenue streams. Escalation is derived from the EIA’s “AEO 2022 Energy Source–Electric Price Forecast (20-year CAGR)”. Storage systems paired with Solar PV or Wind do not charge from the grid. C L C O S V 8 . 0 42 Utility-Scale (Standalone) Utility-Scale (PV + Storage) Utility-Scale (Wind + Storage) C&I (Standalone) C&I (PV + Storage) Residential (Standalone) Residential (PV + Storage) Units (100 MW / 100 MWh)(100 MW / 200 MWh)(100 MW / 400 MWh) (50 MW / 200 MWh)(50 MW / 200 MWh)(1 MW / 2 MWh)(0.5 MW / 2 MWh)(0.006 MW / 0.025 MWh)(0.006 MW / 0.025 MWh) Power Rating MW 100 100 100 50 50 1 0.5 0.006 0.006 Duration Hours 1.0 2.0 4.0 4.0 4.0 2.0 4.0 4.2 4.2 Usable Energy MWh 100 200 400 200 200 2 2 0.025 0.025 90% Depth of Discharge Cycles/Day #1 1 1 1 1 1 1 1 1 Operating Days/Year #350 350 350 350 350 350 350 350 350 Solar / Wind Capacity MW 0.00 0.00 0.00 100 100 0.00 1.00 0.000 0.010 Annual Solar / Wind Generation MWh 0 0 0 197,000 372,000 0 1,752 0 15 Project Life Years 20 20 20 20 20 20 20 20 20 Annual Storage Output MWh 31,500 63,000 126,000 63,000 63,000 630 630 8 8 Lifetime Storage Output MWh 630,000 1,260,000 2,520,000 1,260,000 1,260,000 12,600 12,600 158 158 Initial Capital Cost—DC $/kWh $280 Initial Capital Cost—AC $/kW $35 EPC Costs $/kWh $30 Solar / Wind Capital Cost $/kW $0 Total Initial Installed Cost $$35 Storage O&M $/kWh $1.7 Extended Warranty Start Year 3 3 3 3 3 3 3 3 3 Warranty Expense % of Capital Costs %0.50% Investment Tax Credit (Solar)%0%0%0%30% Investment Tax Credit (Storage)%30% Production Tax Credit $/MWh $0 $0 $0 $0 $26 Charging Cost $/MWh $61 $64 $59 $0 $0 $117 $0 $325 $0 Charging Cost Escalator %1.87%1.87%1.87%0.00%0.00%0.00%0.00%0.00%0.00% Efficiency of Storage Technology %91% Unsubsidized LCOS $/MWh $249 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. D LCOH v3.0 A P R I L 2 0 2 3 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Year 1 2 3 4 5 25 Key Assumptions Electrolyzer size (MW)(A)20 20 20 20 20 20 Electrolyzer size (MW)20.00 Electrolyzer input capacity factor (%)(B)55%55%55%55%55%55%Electrolyzer input capacity factor (%)55% Total electric demand (MWh)(A) x (B) = (C)*96,360 96,360 96,360 96,360 96,360 96,360 Lower heating value of hydrogen (kWh/kgH2)33 Electric consumption of H2 (kWh/kg)(D)61.87 61.87 61.87 61.87 61.87 61.87 Electrolyzer efficiency (%)58.0% Total H2 output ('000 kg)(C) / (D) = (E)1,558 1,558 1,558 1,558 1,558 1,558 Levelized penalty for efficiency degradation (kWh/kg)4.4 Levelized Cost of Hydrogen ($/kg)(F)$7.37 $7.37 $7.37 $7.37 $7.37 $7.37 Electric consumption of H2 (kWh/kg)57.47 Total Revenues (E) x (F) = (G)*$11.47 $11.47 $11.47 $11.47 $11.47 $11.47 Warranty / insurance 1.0% Total O&M 5.34 Warranty / insurance (H)----($0.5)($0.5)($0.5)($0.6)O&M escalation 2.00% Total O&M (I)*(5.3)(5.4)(5.4)(5.4)(5.4)(5.8) Total Operating Costs (H) + (I) = (J)($5.3)($5.4)($5.8)($5.8)($5.9)($6.3) Capital Structure EBITDA (G) - (J) = (K)$6.1 $6.1 $5.6 $5.6 $5.6 $5.1 Debt 40.0% Cost of Debt 8.0% Debt Outstanding - Beginning of Period (L)$18.1 $17.9 $17.6 $17.3 $17.0 $1.6 Equity 60.0% Debt - Interest Expense (M)($1.4)($1.4)($1.4)($1.4)($1.4)($0.1)Cost of Equity 12.0% Debt - Principal Payment (N)($0.2)($0.3)($0.3)($0.3)($0.3)($1.6) Levelized Debt Service (M) + (N) = (O)($1.7)($1.7)($1.7)($1.7)($1.7)($1.7)Taxes and Tax Incentives: EBITDA (K)$6.1 $6.1 $5.6 $5.6 $5.6 $5.1 Economic Life (years) 25 Depreciation (MACRS)(P)(6.5)(11.1)(7.9)(5.7)(4.0)0.0 MACRS Depreciation (Year Schedule) 7-Year MACRS Interest Expense (M)(1.4)(1.4)(1.4)(1.4)(1.4)(0.1) Taxable Income (K) + (P) + (M) = (Q) ($1.8)($6.4)($3.7)($1.4)$0.2 $5.0 Capex EPC Costs ($/kW)$2,265 Tax Benefit (Liability)(Q) x (tax rate) = (R)$0.4 $1.3 $0.8 $0.3 ($0.0)$2.9 Additional Owner's Costs ($/kW)$0 Transmission Costs ($/kW)$0 Capital Expenditures ($27)($18.1)$0.0 $0.0 $0.0 $0.0 $0.0 Total Capital Costs ($/kW)$2,265 After-Tax Net Equity Cash Flow (K) + (O) + (R) = (S)$4.8 $5.8 $4.7 $4.2 $3.9 $6.3 Total Capex ($mm)$45 IRR For Equity Investors 12.0% Source:Lazard and Roland Berger estimates and publicly available information. Note:Unsubsidized Green PEM—High LCOH case presented for illustrative purposes only. *Denotes unit conversion. (1)Assumes half-year convention for discounting purposes. (2)Total Electric Demand reflects (Electrolyzer Size) x (Electrolyzer Capacity Factor) x (8,760 hours/year). (3)Electric Consumption reflects (Heating Value of Hydrogen) x (Electrolyzer Efficiency) + (Levelized Degradation). (4)Reflects initial cash outflow from equity investors. (5)Reflects a “key” subset of all assumptions for methodology illustration purposes only. Does not reflect all assumptions. (6)Economic life sets debt amortization schedule. Levelized Cost of Hydrogen Comparison—Methodology ($ in millions, unless otherwise noted) D L C O H V 3 . 0 Lazard’s LCOH analysis consists of creating a model representing an illustrative project for each relevant technology and solving for the $/kg value that results in a levered IRR equal to the assumed cost of equity (see subsequent “Key Assumptions” pages for detailed assumptions by technology) Technology-dependent Levelized (1) Unsubsidized Green PEM—High Case Sample Illustrative Calculations (6) (2) (4) (3) (5) 43 61.87 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Green Hydrogen Pink Hydrogen PEM Alkaline PEM Alkaline Units Low Case High Case Low Case High Case Low Case High Case Low Case High Case Capacity MW 100 –20 100 –20 100 –20 100 –20 Total Capex $/kW $943 –$2,265 $740 –$1,984 $1,013 –$2,335 $810 –$2,054 Electrolyzer Stack Capex $/kW $341 –$1,052 $203 –$652 $341 –$1,052 $203 –$652 Plant Lifetime Years 25 25 25 25 Stack Lifetime Hours 60,000 67,500 60,000 67,500 Heating Value kWh/kg H2 33 33 33 33 Electrolyzer Utilization %90%90%90%90% Electrolyzer Capacity Factor %55%55%95%95% Electrolyzer Efficiency % LHV 58%67%58%67% Operating Costs: Annual H2 Produced MT 7,788 –1,558 8,902 –1,780 12,744 –2,549 14,568 –2,914 Process Water Costs $/kg H2 $0.005 $0.005 $0.005 $0.005 Annual Energy Consumption MWh 481,800 –96,360 481,800 –96,360 788,400 –157,680 788,400 –157,680 Net Electricity Cost (Unsubsidized)$/MWh $48.00 $48.00 $35.00 $35.00 Net Electricity Cost (subsidized)$/MWh $30.56 $30.56 $30.31 $30.31 Warranty & Insurance (% of Capex)%1.0%1.0%1.0%1.0% Warranty & Insurance Escalation %1.0%1.0%1.0%1.0% O&M (% of Capex)%1.50%1.50%1.50%1.50% Annual Inflation %2.00%2.00%2.00%2.00% Capital Structure: Debt %40.0%40.0%40.0%40.0% Cost of Debt %8.0%8.0%8.0%8.0% Equity %60.0%60.0%60.0%60.0% Cost of Equity %12.0%12.0%12.0%12.0% Tax Rate %21.0%21.0%21.0%21.0% WACC %9.7%9.7%9.7%9.7% Unsubsidized Levelized Cost of Hydrogen $/kg $4.77 $7.37 $3.79 $5.78 $3.47 $5.29 $2.75 $4.08 Subsidized Levelized Cost of Hydrogen $/kg $1.68 $4.28 $0.83 $2.83 $1.16 $2.99 $0.48 $1.81 Memo: Unsubsidized Natural Gas Equivalent Cost $/MMBTU $41.90 $64.65 $33.30 $50.70 $30.40 $46.45 $24.15 $35.80 Memo: Subsidized Natural Gas Equivalent Cost $/MMBTU $14.80 $37.55 $7.30 $24.80 $10.20 $26.25 $4.25 $15.90 Levelized Cost of Hydrogen—Key Assumptions D L C O H V 3 . 0 Source:Lazard and Roland Berger estimates and publicly available information. 44 Copyright 2023 Lazard This study has been prepared by Lazard for general informational purposes only, and it is not intended to be, and should not be construed as, financial or other advice. No part of this material may be copied, photocopied or duplicated in any form by any means or redistributed without the prior consent of Lazard. Green Hydrogen Pink Hydrogen PEM Alkaline PEM Alkaline Units Low Case High Case Low Case High Case Low Case High Case Low Case High Case Capacity MW 20 20 20 20 Total Capex $/kW $1,412 –$2,265 $1,230 –$1,984 $1,482 –$2,335 $1,300 –$2,054 Electrolyzer Stack Capex $/kW $479 –$1,052 $186 –$652 $479 –$1,052 $186 –$652 Plant Lifetime Years 25 25 25 25 Stack Lifetime Hours 60,000 67,500 60,000 67,500 Heating Value kWh/kg H2 33 33 33 33 Electrolyzer Utilization %90%90%90%90% Electrolyzer Capacity Factor %55%55%95%95% Electrolyzer Efficiency % LHV 58%67%58%67% Operating Costs: Annual H2 Produced MT 1,558 1,780 2,549 2,914 Process Water Costs $/kg H2 $0.005 $0.005 $0.005 $0.005 Annual Energy Consumption MWh 96,360 96,360 157,680 157,680 Net Electricity Cost (Unsubsidized)$/MWh $48.00 $48.00 $35.00 $35.00 Net Electricity Cost (subsidized)$/MWh $30.56 $30.56 $30.31 $30.31 Warranty & Insurance (% of Capex)%1.0%1.0%1.0%1.0% Warranty & Insurance Escalation %1.0%1.0%1.0%1.0% O&M (% of Capex)%1.50%1.50%1.50%1.50% Annual Inflation %2.00%2.00%2.00%2.00% Capital Structure: Debt %40.0%40.0%40.0%40.0% Cost of Debt %8.0%8.0%8.0%8.0% Equity %60.0%60.0%60.0%60.0% Cost of Equity %12.0%12.0%12.0%12.0% Tax Rate %21.0%21.0%21.0%21.0% WACC %9.7%9.7%9.7%9.7% Unsubsidized Levelized Cost of Hydrogen $/kg $5.65 $7.37 $4.53 $5.78 $4.05 $5.29 $3.20 $4.08 Subsidized Levelized Cost of Hydrogen $/kg $2.55 $4.28 $1.57 $2.83 $1.74 $2.99 $0.93 $1.81 Natural gas price $/mmbtu $3.45 $3.45 $3.45 $3.45 Peaker LCOE at 0% H2 blend by vol. (unsubsidized)$/MWh $173.00 $173.00 $173.00 $173.00 Peaker LCOE at 25% H2 blend by vol. (unsubsidized)$/MWh $220 –$235 $210 –$221 $206 –$217 $198 –$206 Peaker LCOE at 25% H2 blend by vol. (subsidized)$/MWh $193 –$208 $184 –$195 $185 –$196 $178 –$186 Memo: Unsubsidized Natural Gas Equivalent Cost $/MMBTU $49.55 $64.65 $39.75 $50.70 $35.50 $46.45 $28.05 $35.80 Memo: Subsidized Natural Gas Equivalent Cost $/MMBTU $22.40 $37.55 $13.75 $24.80 $15.30 $26.25 $8.15 $15.90 Levelized Cost of Energy—Gas Peaking Plant with 25% Hydrogen Blend Key Assumptions D L C O H V 3 . 0 Source:Lazard and Roland Berger estimates and publicly available information. 45 Columbia Law School Columbia Law School Scholarship Archive Scholarship Archive Sabin Center for Climate Change Law Research Centers & Programs 4-2024 Rebutting 33 False Claims About Solar, Wind, and Electric Rebutting 33 False Claims About Solar, Wind, and Electric Vehicles Vehicles Matthew Eisenson Jacob Elkin Andy Fitch Matthew Ard Kaya Sittinger See next page for additional authors Follow this and additional works at: https://scholarship.law.columbia.edu/sabin_climate_change Part of the Energy and Utilities Law Commons, and the Environmental Law Commons Authors Authors Matthew Eisenson, Jacob Elkin, Andy Fitch, Matthew Ard, Kaya Sittinger, and Samuel Lavine REBUTTING 33 FALSE CLAIMS ABOUT SOLAR, WIND, AND ELECTRIC VEHICLES APRIL 2024 Sabin Center for Climate Change Law | Rebutting 33 False Claims About Solar, Wind, and Electric Vehicles © 2024 Sabin Center for Climate Change Law, Columbia Law School The Sabin Center for Climate Change Law develops legal techniques to fight climate change, trains law students and lawyers in their use, and provides the legal profession and the public with up -to-date resources on key topics in climate law and regulation. It works closely with the scientists at Columbia University ’s Climate School and with a wide range of governmental, non-governmental and academic organizations. Sabin Center for Climate Change Law Columbia Law School 435 West 116th Street New York, NY 10027 Tel: +1 (212) 854-3287 Email: columbiaclimate@gmail.com Web: https://climate.law.columbia.edu/ Twitter: @SabinCenter Blog: http://blogs.law.columbia.edu/climatechange Disclaimer: This report is the responsibility of The Sabin Center for Climate Change Law alone and does not reflect the views of Columbia Law School or Columbia University. This report is an academic study provided for informational purposes only and does not constitute legal advice. Transmission of the in formation is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. No party should act or rely on any information contained in this report without first seeking the advice of an attorney. Coordinating Editors: Matthew Eisenson and Jacob Elkin Authors: Andy Fitch, Matthew Ard, Kaya Sittinger, and Samuel Lavine Please send any corrections or suggested additions for future editions to Matthew Eisenson at Matthew.Eisenson@law.columbia.edu. INTRODUCTION Getting the U.S. energy system onto an environmentally sustainable track will require rapid and widespread development of wind, solar, and other renewable energy facilities; corresponding storage, transmission, and distribution infrastructure; and timely industry-specific transitions, such as battery electric vehicles replacing their combustion-engine counterparts. Broad public support exists for transformative climate policies, with a June 2023 Pew Research Center survey finding that 67% of U.S. adults prioritize developing renewable energy sources over increased fossil fuel production.1 However, “misinformation” and coordinated “disinformation” have at times undermined support for renewable energy projects and electric vehicles.2 This report addresses some of the more prevalent and persistent distortions about solar energy, wind energy, and electric vehicles, with the aim of promoting a more informed discussion.3 While the impact of misinformation and disinformation can be difficult to measur e, alarming data has begun to emerge. A Monmouth University poll found, for instance, that support in New Jersey for offshore wind farms had declined from 76% in 2019, to 54% by August 2023.4 This shift is likely due, in large part, to dubious claims, some of them coming from fossil-fuel funded opposition groups, which have attempted to blame wind farm surveys for recent spikes in whale deaths off the United States ’ northeastern coast.5 More generally, both nationwide and in communities on the front lines o f our energy transition, anecdotal doubts and coordinated disinformation efforts have dampened public enthusiasm for ambitious renewables infrastructure, particularly among concentrated segments of our polarized population. For example, support for offshor e wind among New Jersey Republicans dropped from 69% to 28% from 2019 to August 2023, while support among New Jersey Democrats only dropped from 79% to 76%.6 False claims about renewable energy come in many varieties. Some claims rely on sheer bombast, seemingly designed to shock and inflame audiences, rather than contribute to informed debate on pressing policy choices (“Solar farms depend entirely on subsidies from your hard earned money. When the subsidies are gone, the solar farms are abandoned!”).7 Some emphasize theoretical impacts of poorly-designed 1 Brian Kennedy, Cary Funk & Alec Tyson, Majorities of Americans Prioritize Renewable Energy, Back Steps to Address Climate Change, PEW RESEARCH CENTER , June 28, 2023, https://www.pewresearch.org/science/2023/06/28/majorities-of-americans-prioritize -renewable -energy-back-steps- to-address-climate -change/. 2 See Misinformation and disinformation, A M . P SYCHOLOGICAL A SSOC ., https://www.apa.org/topics/journalism- facts/misinformation -disinfo rmation (last visited March 25, 2024) (explaining the distinction between misinformation and disinformation); A NA HI A YALA IA CUCCI , USING SOCIAL MEDIA IN CO MMUNITY-BASED PROTECTION at 230 (2021), https://www.unhcr.org/innovation/wp-content/uploads/2021/01/Using -Social-Media-in-CBP.pdf (same). 3 The authors recognize that similar misinformation persists regarding energy transmission infrastructure, the buildout of which is necessary to support the expansion of renewable energy generation and electric vehicle adoption, but transmission is outside the scope of this report. See LU NELSEN, FROM THE GRO UND UP : A DDRESSING KEY CO MMUNITY CO NCERNS IN CLEAN ENERGY T RANSMISSION at 10, 12, 15 -16 (2013), https://perma.cc/ENA2 -S3DW; See Queued Up . . . But in Need of Transmission, DEP ’T O F ENERGY, Apr. 2022, https://www.energy.gov/sites/default/files/2022- 04/Queued%20Up%E2%80%A6But%20in%20Need%2 0of%20Transmission.pdf. 4 Monmouth University Poll, Support for Wind Energy Plunges, MO NMOUTH UNIVERSITY, Aug. 29, 2023, https://www.monmouth.edu/polling -institute/documents/monmouthpoll_nj_082923.pdf/. 5 Tracey Tully & Winston Choi-Schagrin, Why 23 Dead Whales Have Washed Up on the East Coast Since December, N.Y. T IMES, Feb. 28, 2023, https://www.nytimes.com/2023/02/28/nyregion/east -coast-whale -deaths.html. 6 See Monmouth University Poll, supra note 4 . 7 How Solar Affects YOU!, NO TO SO LAR, https://perma.cc/63GB-ZQ3B (last visited March 25, 2023). ii renewable energy projects while ignoring the many well -established methods to minimize or even eliminate those impacts8 (“[I]ndustrial-scale solar isn’t right for rural-agricultural areas . . . [because] [t]he land (forest, farmland, vegetation, soil) is forever destroyed.”).9 Some frame any departure from the status quo, such as the use of farmland for solar production, as categorically inconceivable (“Ask yourself, if several thousand acres of agricultur al land is converted to industrial solar facilities, who will grow your food? Bill Gates? Mark Zuckerberg?”).10 Some rely on unsubstantiated theories of causation, such as speculation that whale deaths stem from noise related to wind farm surveys, despite t he fact that marine biologists have found that the sounds during offshore wind surveying are similar “to the sound of a fan in a room.”11 Some drill down with single-minded focus on the toxicity or carbon footprint of renewable energy infrastructure or its component parts, 12 while declining to acknowledge that fossil fuel extraction, production, and distribution cause far greater environmental contamination, harm to human health, and climate instability.13 This report does not examine the origins of the fals e claims or the motivations of those who disseminate them. However, it is well documented that much of it comes from deliberately misleading sources, such as astroturf “local” organizations funded by distant policy advocates, themselves funded by fossil -fuel producers.14 Other researchers, including Brown University’s Climate and Development Lab, have extensively mapped out some of these connections in the context of opposition to offshore wind development.15 Ultimately, an honest reckoning with what will be required to address the climate crisis requires a fact- based evaluation of the best available pathways to avoid the worst-case scenarios. Renewable energy and its offshoots can significantly reduce climate threats, improve public health, and provide jobs for millions of Americans. The authors designed this report so that, despite the longevity of long -since-debunked misinformation, members of the public, and particularly residents of communities contemplating utility - scale renewable energy projects, can cultivate balanced and informed opinions. With that context, this report identifies and examines 33 of the most pervasive misconceptions about solar energy, wind energy, and electric vehicles. The false claims about each of these technologies are presented roughly in the following order: misconceptions pertaining to human health, then misconceptions pertaining to environmental impacts, then misconceptions pertaining to economic impacts, and then other 8 See, etc., BILL PEDERSON & BRO OKS LA MB, A GRIVOLTAICS: PRODUCING SOLAR ENERGY WHILE P ROTECTING FA RMLAND (2021), https://cbey.yale.edu/sites/default/files/2021 -10/CBEY_REPORTS_AGRIVOLTAICS_FINAL_0.pdf ; BIODIVERSITY CO NSULTANCY, MITIGATING BIODIVERSITY IMPACTS A SSOCIATED WITH SOLAR A ND W IND ENERGY DEVELOPMENT (2021), https://portals.iucn.org/library/sites/library/files/documents/2021 -004 -En.pdf. 9 10 Reasons Industrial-Scale Solar Isn't Right for Agricultural-Rural Areas, CITIZENS FOR RESPONSIBLE SOLAR , https://perma.cc/PYC8-SRPJ (last visited March 25, 2024). 10 Welcome to No Solar in Logan County (Ohio), NO SO LAR IN LO GAN CO UNTY (O HIO ), https://perma.cc/P45M-W5NF (last visited March 25, 2024). 11 Pearl Marvell, Wind Opponents Spread Myth about Dead Whales, YALE CLIMATE CO NNECTIONS, Sept. 19, 2023, https://yaleclimateconnections.org/2023/09/wind -opponents-spread -myth-about-dead-whales/. 12 NO TO SO LAR , supra note 7. 13 See Hannah Ritchie, What are the safest and cleanest sources of energy?, O UR W ORLD IN DA TA, Feb. 10, 2020, https://ourworldindata.org/safest-sources-of-energy. 14 David Gelles, The Texas Group Waging a National Crusade Against Climate Action, N.Y. T IMES, Dec. 4, 2022, https://www.nytimes.com/2022/12/04/climate/texas-public -policy-foundation -climate -change.html; Marvell, supra note 11. 15 ISA AC SLEVIN ET AL., CLIMATE AND DEVELOPMENT LAB , A GAINST THE W IND: A MA P O F THE A NTI-O FFSHORE W IND NETWORK IN THE EA STERN UNITED STATES (2023), https://drive.google.com/file/d/1a64hVMlqRs4p_a39l2O -g9LSERk7GBb0/view. iii misconceptions that do not fit into any of these categorie s.16 To identify the most common misconceptions regarding renewables and electric vehicles, the authors first conducted primary research that included reviewing social-media groups and websites created to oppose renewable energy projects or policies, as well as existing press coverage about misinformation.17 The authors then developed transparent, fact - based responses to these misconceptions, relying to the greatest extent possible on academic literature and government publications. The authors would like to thank Eric Larson, Charles Kutscher, Aniruddh Mohan, and David Gahl for reviewing these responses for technical accuracy. The authors would also like to thank Achyuth Anil and Miguel Severino for their assistance in preparing the report. Any errors that remain are the authors’ own. Because each of these responses is designed to stand on its own, there is some repetition in content from one response to the next. Importantly, this is not the first publication to attempt to debunk or contextualize dubious clai ms about clean energy. Below is a short, non-comprehensive list of other efforts to clarify misinformation and disinformation pertaining to renewable energy and electric vehicles: The United States Environmental Protection Agency’s breakdown of “electric v ehicle myths.”18 RMI’s Reality Check: The IEA Busts 10 Myths about the Energy Transition.19 USA Today’s Do wind turbines kill birds? Are solar panels toxic? The truth behind green-energy debates.20 Carbon Brief’s factchecks on electric vehicles and renewable energy, including: Factcheck: How electric vehicles help to tackle climate change;21 Factcheck: 21 misleading myths about electric vehicles;22 and Factcheck: Is solar power a ‘threat’ to UK farmland?.23 The Center for American Progress’s The Truth About Offshore Wind: Busting Oil Money Myths and Misinformation.24 16 The dividing line among these categories is often blurry: for example, climate change has impacts on human health, the non -human environment, and the economy. 17 See, e.g., NO TO SOLAR , supra note 7; NO SOLAR IN LOGAN CO UNTY (O HIO ), supra note 10; DEFIANCE COUNTY CITIZENS FOR RESPO NSIBLE SOLAR, https://www.defiancecountycitizensforresponsiblesolar.com/ (last visited March 25, 2024); Windmills Kill, https://windmillskill.com/ (last visited March 25, 2024); Solar, A LLIA NCE FOR W ISE ENERGY DECISIONS, https://wiseenergy.org/solar/ (last visited March 25, 2024); Letters: America Decides to Make Its Electrical Grid Dysfunctional, W A LL STREET JO URNAL, June 12, 2022, https://www.wsj.com/articles/electric -grid-energy-green- blackout -generator-renewable -solar-wind-11654900508 . See also, e.g., Julia Simon, Misinformation is derailing renewable energy projects across the United States, NPR, Mar. 28, 2022, https://www.npr.org/2022/03/28/1086790531/renewable -energy-projects-wind-energy-solar-energy-climate -change - misinformation. 18 Electric Vehicle Myths, ENVT’L P RO TECTION A GENCY, https://www.epa.gov/greenvehicles/electric -vehicle -myths (last updated Aug. 28, 2023). 19 Kingsmill Bond & Sam Butler-Sloss, Reality Check: The IEA Busts 10 Myths about the Energy Transition, RMI, Sept. 29, 2023, https://rmi.org/reality-check-the-iea-busts-10-myths-about-the-energy-transition/. 20 Elizabeth Weise, Do wind turbines kill birds, Are solar panels toxic? The truth behind green-energy debates, USA T O DAY, Feb. 4, 2024 (updated Feb. 6, 2024), https://www.usatoday.com/story/news/investigations/2024/02/04/green -energy-fact-checked/72390472007/. 21 Zeke Hausfather, Factcheck: How electric vehicles help to tackle climate change.21, CA RBONBRIEF, May 13, 2019, https://www.carbonbrief.org/factcheck -how-electric -vehicles-help-to -tackle -climate -change/. 22 Simon Evans, Factcheck: 21 misleading myths about electric vehicles, CA RBONBRIEF, Oct. 24, 2023, https://www.carbonbrief.org/factcheck -21-misleading -myths-about -electric-vehicles/. 23 Josh Gabbatis et al., Factcheck: Is solar power a ‘threat’ to UK farmland?, CA RBON BRIEF, Aug. 25, 2022, https://www.carbonbrief.org/factcheck -is-solar-power-a-threat -to -uk-farmland/. 24 Michael Freeman, The Truth About Offshore Wind: Busting Oil Money Myths and Misinformation, CENTER FOR A MERICAN PROGRESS, June 6, 2023, https://www.americanprogress.org/article/the-truth-about-offshore-wind-busting - oil-money-myths-and-misinformation/. iv The Annenberg Public Policy Center’s website FactCheck.org, which includes factchecks on climate change related topics,25 including electric vehicles.26 The Brown Climate and Development Lab’s Discourses of Climate Delay in the Campaign Against Offshore Wind: A Case Study from Rhode Island.27 Emily Atkin’s A guide to electric car misinformation.28 This publication aims to build on these other reports and should be read in conjunction with them . 25 See Issues: climate change, FA CTCHECK.ORG , https://www.factcheck.org/issue/climate -change/ (last visited March 25, 2024). 26 See D’Angelo Gore et al., Trump’s Misleading Claims About Electric Vehicles and the Auto Industry, FACTCHECK.ORG, Oct. 2, 2023, https://www.factcheck.org/2023/10/trumps-misleading-claims-about -electric -vehicles-and -the -auto- industry/; Catalina Jaramillo, Electric Vehicles Contribute Fewer Emissions than Gasoline-Powered Cars Over Their Lifetimes, FA C T CHECK .ORG, Feb. 7, 2024, https://www.factcheck.org/2024/02/electric -vehicles-contribute-fewer- emissions-than-gasoline -powered -cars-over-their-lifetimes/. 27 DISC OURSES O F CLIMATE DELA Y IN THE CA MPAIGN A GAINST O FFSHORE W IND: A CA SE STUDY FROM RHODE ISLA ND, BROWN CLIMATE A ND DEVELO PMENT LAB (April 2023), https://ecori.org/wp - content/uploads/2023/04/delay_and_misinformation_tactics_in_anti_osw_campaigns -ri_case_study_4-10-23.pdf. 28 Emily Atkin, A guide to electric car misinformation (part 1), HEA TED , March 27, 2024, https://heated.world/p/a- guide -to -electric -car-misinformation. v TABLE OF CONTENTS PART A: FALSE CLAIMS ABOUT SOLAR ENERGY (#1 –#14) ................................................................................ 1 1. PART A: FALSE CLAIMS ABOUT SOLAR ENERGY (#1 -#14) ................................................................................2 False Claim #1: Electromagnetic fields from solar farms are harmful to human health.........................................2 False Claim #2: Toxic heavy metals, such as lead and cadmium, leach out from solar panels and pose a threat to human health. ................................................................................................................................................3 False Claim #3: Solar panels generate too much waste and will overwhelm our landfills......................................4 False Claim #4: Clearing trees for solar panels negates any climate change benefits...........................................6 False Claim #5: Solar energy is worse for the climate than burning fossil fuels. ..................................................7 False Claim #6: Solar projects harm biodiversity. ............................................................................................ 10 False Claim #7: Solar projects will reduce agr icultural production, hurting farmers and rural communities.......... 11 False Claim #8: Solar development will destroy U.S. jobs. ............................................................................... 14 False Claim #9: Reliance on solar will make the United States dependent on China and other countries. ............ 16 False Claim #10: Utility-scale solar farms destroy the value of nearby homes. .................................................. 17 False Claim #11: Solar energy is more expensive than fossil fuels and completely dependent on subsidies......... 18 False Claim #12: Solar panels don’t work in cold or cloudy climates. ................................................................ 22 False Claim #13: Solar energy is unreliable and requires 100% fossil fuel backup. ............................................ 23 False Claim #14: We do not have sufficient mineral resources for large -scale solar development. ...................... 25 PART B: FALSE CLAIMS ABOUT WIND ENERGY (#15 –#29) ............................................................................. 27 False Claim #15: Electromagnetic radiation from wind turbines poses a threat to human health. ....................... 28 False Claim #16: Wind turbines frequently fall over, and blades or other components easily break off, threatening human health and safety. .............................................................................................................................. 29 False Claim #17: Low -frequency noise from wind turbines harms human health and causes “wind turbine syndrome.” ................................................................................................................................................... 31 vi False Claim #18: Shadow flicker from wind turbines can trigger seizures in people with epilepsy. ...................... 31 False Claim #19: Wind turbines are a major threat to birds, bats, and other wildlife. ........................................ 32 False Claim #20: Offshore wind development is harmful to whales and other marine life................................... 34 False Claim #21: Producing and transporting wind turbine components releases more carbon dioxide than burning fossil fuels. ....................................................................................................................................... 36 False Claim #22: Wind turbines will generate an unsustainable amount of waste. ............................................. 36 False Claim #23: Wind turbines take up too much land. .................................................................................. 37 False Claim #24: Wind power, particularly offshore wind power, is too expensive. ............................................ 40 False Claim #25: Wind turbines are bad for farmers and rural communities...................................................... 42 False Claim #26: Wind energy is bad for U.S. jobs. ......................................................................................... 43 False Claim #27: Wind turbines destroy nearby property values. ..................................................................... 44 False Claim 28: Wind energy is unreliable. ...................................................................................................... 47 False Claim 29: Wind turbines are very noisy. ................................................................................................. 48 PART C: FALSE CLAIMS ABOUT ELECTRIC VEHICLES (#30 -#33)..................................................................... 50 False Claim #30: Electric vehicles have a net harmful effect on climate change . ............................................... 51 False Claim #31: Electric vehicles will cost the United States many automobile industry jobs. ............................ 53 False Claim #32: Electric vehicles are impractical due to range restrictions. ...................................................... 54 False Claim #33: Electric vehicles cannot function in hot or cold weather. ........................................................ 55 1 PART A: FALSE CLAIMS ABOUT SOLAR ENERGY (#1–#14) 2 1. PART A: FALSE CLAIMS ABOUT SOLAR ENERGY (#1 -#14) False Claim #1: Electromagnetic fields from solar farms are harmful to human health. “The EMF (electromagnetic field) from solar farms poses serious health risks especially to those who have electromagnetic hypersensitivity.”29 The electromagnetic fields generated at a solar farm are similar in strength and frequency to those of toaster ovens and other household appliances —and harmless to humans. A detailed analysis from North Carolina State University concluded that there is “no conclusive and consistent evidence” of “negative health impact[s] from the EMF [electromagnetic fields] produced in a solar farm.”30 EMF exposure levels vary according to the EMF source, proximity to the source, and duration of the exposure.31 On a solar farm, EMFs are highest around electrical equipment such as inverters. However, even when standing next to the ve ry largest inverter at a utility-scale solar farm, one’s exposure level (up to 1,050 milligauss, or mG) is less than one’s exposure level while operating an electric can opener (up to 1,500 mG), and well within accepted exposure limits (up to 2,000 mG).32 When standing just nine feet from a residential inverter, or 150 feet from a utility -scale inverter, one’s exposure drops to “very low levels of 0.5 mG or less, and in many cases . . . less than background levels (0.2 mG).”33 For comparison, a typical American’s average background exposure level is 1mG, reaching 6 mG when standing three feet from a refrigerator, and 50 mG when standing three feet from a microwave.34 The electromagnetic fields present on a solar farm constitute “non -ionizing radiation,” which, by definition, generates “enough energy to move atoms in a molecule around (experienced as heat), but not enough energy to remove electrons from an atom or molecule (ionize) or to damage DNA.”35 In addition, EMFs are extremely low in frequency, which means they contain “less energy than other commonly encountered types of non -ionizing radiation like radio waves, infrared radiation, and visible light.”36 29 NO TO S O LAR , supra note 7. 30 Tommy Cleveland, Health and Safety Impacts of Solar Photovoltaics, NC STA TE UNIVERSITY, 14 (May 2017), https://nccleantech.ncsu.edu/wp -content/uploads/2019/10/Health-and-Safety-Impacts-of-Solar-Photovoltaics-PV.pdf. 31 Id. at 15. 32 Id.; Massachusetts Department of Energy Resources et al., Questions & Answers: Ground-Mounted Solar Photovoltaic Systems, 10 - 11 (Jun. 2015), http://www.mass.gov/eea/docs/doer/renewables/solar/solar-pv-guide.pdf. 33 Tommy Cleveland, supra note 30 at 15. 34 Id.; Massachusetts Clean Energy Center, Study of Acoustic and EMF Levels from Solar Photovoltaic Projects (Dec. 2012), http://www.co.champaign.il.us/CountyBoard/ZBA/2018/180329_Meeting/180329__Massachusetts%20Acoustic%20Study%20for%20PV %20Solar%20Projects.pdf . 35 Tommy Cleveland, supra note 30, at 16. 36 Id. at 15. 3 False Claim #2: Toxic heavy metals, such as lead and cadmium, leach out from solar panels and pose a threat to human health. “Studies have shown the heavy metals in solar panels namely lead and cadmium, can leach out of the cells and get into groundwater, as well as affect plants.”37 Roughly 40% of new solar panels in the United States and 5% of new solar panels in the world contain cadmium,38 but this cadmium is in the form of cadmium telluride, which is non-volatile, non-soluble in water, and has 1/100th the toxicity of free cadmium.39 Most solar panels, like many electronics, contain small amounts of lead.40 However, the Massachusetts Department of Energy Resources (DER) has assessed that “because PV panel materials are enclosed, and don’t mix with water or vaporize into the air, there is little, if any, risk of chemical releases to the environment during no rmal use.”41 The Massachusetts DER has further assessed that, even in the unlikely event of panel break age, releases of chemicals used in solar panels are “not a concern.”42 All materials in a solar panel are “insoluble and non-volatile at ambient conditions,” and “don’t mix with water or vaporize into air.”43 Moreover, they are encased in tempered glass that not only withstands high temperatures, but is also strong enough to pass hail tests and is regularly installed in Arctic and Antarctic conditions.44 It is theoretically possible that, when exposed to extremely high heat exceeding that of a typical residential fire, panels “could emit vapors and particulates from PV panel components to the air.” But that risk is limited by the fact that “the silicon and other chemicals that comprise the solar panel would likely bind to the glass that covers the PV cells and be retained there.”45 When a cadmium telluride panel is exposed to fire of an intensity sufficient to melt the glass on the panel, “over 99.9% of the cadmium [is encapsulated in] the molten glass.”46 Furthermore, a 2013 analysis found that, even in the worst -case scenarios of earthquakes, fires, and floods, “it is unlikely that the [cadmium] concentrations in air and sea water will exceed the environmental r egulation values.”47 37 Emily Chantiri, The Dark Side of Renewable Technology: Fossil Fuels Are Used to Produce Solar Panels, A USTRALIAN COMPUTER SOCIETY (Feb. 2, 2023), https://ia.acs.org.au/article/2023/the-dark-side -of-renewable -technology.html. 38 Polycrystalline Thin-Film Research: Cadmium Telluride, NA T ’L RENEWABLE ENERGY LA BORATORY, May 2022, https://www.nrel.gov/docs/fy21osti/76975.pdf ; Taking Cadmium Telluride Technology to the Next Level, US-MAC, https://www.usa- cdte.org/ (last visited March 25, 2024). 39 Health and Safety Impacts of Solar Photovoltaics at 7 , NC CLEA N ENERGY T ECHNOLO GY CENTER, May 2017, https://content.ces.ncsu.edu/health-and -safety-impacts-of-solar-photovoltaics. 40 Mark Hutchins, The weekend read: A lead-free future for solar PV, PV MA GAZINE, Oct. 26, 2019, https://www.pv- magazine.com/2019/10/26/the-weekend -read-a-lead-free -future -for-solar-pv/. 41 Massachusetts Department of Energy Resources et al., supra note 32 at 5. 42 Id. 43 Id. 44 Id. 45 Id. 46 NC CLEA N ENERGY T ECHNOLO GY CENTER , supra note 39 at 7. 47 Yasunari Matsuno, Environmental risk assessment of CdTe PV systems to be considered under catastrophic events in Japan, FIRST SO LA R , Dec. 1, 2013, https://www.firstsolar.com/-/media/First -Solar/Sustainability-Documents/Sustainability-Peer-Reviews/Japan_Peer- Review_Matsuno_CdTe-PV-Tsunami.ashx. 4 One peer -reviewed study in the Journal of Natural Resources and Development found it unlikely for lead or cadmium to leach into the soil from functional solar panels.48 Measuring heavy metal concentrations in the soil at various distanc es, researchers found no significant differences in lead or cadmium concentrations directly underneath solar panels, compared to soil 45 or 100 feet away.49 The study further found that “lead and cadmium were not elevated in soils near PV systems and were far below levels considered to be an imminent or future danger to environmental health.”50 Although the study did find higher levels of selenium in soil directly underneath solar panels, the study noted that the presence of selenium was possibly a “result of the cement used in construction,” rather than leaching from the panels themselves.51 In addition, the study noted that even the highest selenium concentrations observed were below the EPA’s risk threshold for mammals.52 Finally, the study noted that fly a sh, a product of coal combustion “commonly disposed of in landfills and as a soil amendment in agriculture,” contains significantly higher concentrations of lead (40x), cadmium (1.1x) and selenium (4x) than the soil samples taken directly underneath the so lar panels in the study area.53 False Claim #3: Solar panels generate too much waste and will overwhelm our landfills. “Solar panels pose a huge risk for overfilling the landfills.”54 The amount of waste that solar panels are expected to generate over the next few decades is trivial compared to the amount of waste that will be generated by fossil fuels. A study published in Nature Physics in October 2023 found that “35 years of cumulative PV module waste (2016 -2050) is dwarfed by the waste generated by foss il fuel energy and other common waste streams.” Specifically, the study found that “if we do not decarbonize and transition to renewable energy sources, coal ash and oily sludge waste generated by fossil fuel energy would be 300 -800 times and 2-5 times larger [in mass], respectively, than PV module waste.”55 48 Seth A. Robinson et al., Potential for leaching of heavy metals and metalloids from crystalline silicon photovoltaic systems,” 9 J. NA T . RES . A ND DEV . 19, 21 (2019), https://doi.org/10.5027/jnrd.v9i0.02 . 49 Id. at 21-22. 50 Id.; U.S. Environmental Protection Agency, Ecological Soil Screening Level (2018), https://www.epa.gov/chemical- research/ecological-soil-screening -level (last updated May 3, 2023). 51 Robinson et al., supra note 48, at 21 -22. 52 Id. 53 Id. 54 NO TO S O LAR , supra note 7. 55 Heather Mirletz et al., Unfounded concerns about photovoltaic module toxicity and waste are slowing decarbonization, NATURE P HYSICS, October 2023, https://www.nature.com/articles/s41567 -023-02230 -0. 5 Figure 1: PV module waste from 2016-2050 compared to other sources of waste. Source: The Sabin Center for Climate Change Law (visualizing data from Heather Mirletz et al.).56 In addition, although only about 10% to 15% of solar panels are recycled in the United States,57 the U.S. Department of Energy has awarded funding under the Infrastructure Investment and Jobs Act for additional research and development for solar technology recycling.58 A 2024 study on solar PV recycling concluded that “PV recycling will reduce waste, and CO2 emissions, while contributing to a sustainable environment,” and that “[i]t is expected that the research for efficient PV recycling strategies will accelerate as the PV industry grows and as many more organizations and government work towards a sustainable future.”59 56 Id. 57 Allyson Chu, Scientists found a solution to recycle solar panels in your kitchen, W ASH . POST (Jul. 5, 2023), https://www.washingtonpost.com/climate -solutions/2023/07/05/solar-panel-recycling-microwave -technology/#. 58 Solar Recycling Research & Development, O FFICE O F ENERGY EFFICIENCY & RENEWA BLE ENERGY, DEP ’T OF ENERGY, https://www.energy.gov/eere/solar-recycling -research-development (last visited March 26, 2024). 59 Zita Ngagoum Ndalloka et al., Solar photovoltaic recycling strategies, 270 Solar Energy 112379 (March 2024), at 9 -10, https://www.sciencedirect.com/science/article/pii/S0038092X24000732 . 70,350 45,550 12,355 1,876 249 160 540 10,000 20,000 30,000 40,000 50,000 60,000 70,000 80,000 Municipal waste Coal ash Plastic waste E-waste Oily sludge PV module waste, worst case PV module waste, best case Cumulative Waste from 2016 to 2050 (million metric tons) 6 Already, some companies have been able to recover 90 % of solar panels’ mass in their recycling processes. 60 Bulk materials such as glass, steel, and aluminum are recoverable through existing recycling lines,61 while certain semiconductor materials (tellurium and cadmium) can also be recovered at very high ra tes of 95% to 97%.62 Valuable materials in the panels, including silver, copper, and crystalline silicon, are actively sought for the development of other products, including the n ext generation of solar panels.63 In addition, new companies are emerging with innovative technologies to recycle solar panels.64 False Claim #4: Clearing trees for solar panels negates any climate change benefits. “It isn’t ‘green’ to cut down thousands of acres of trees to build large solar plants. Trees remove carbon from the atmosphere and slow global warming. Deforestation contributes to climate change.”65 Forests have immense ecological benefits, recreational benefits, and intrinsic value. However, when looking at the narrow but important issue of carbon accounting, it is usually not true that removing trees to build a solar farm negates any emissions reductions from solar generation. In fact, an acre of solar panels in the United States usually offsets significant ly more carbon dioxide emissions than an acre of planted tre es can sequester. In the United States, the emissions intensity of electricity produced by natural gas -fired power plants is roughly 1,071 pounds of carbon dioxide per megawatt-hour (MWh).66 The emissions intensity of solar PV, meanwhile, is about 95 pounds per MWh, a difference of 976 pounds per MWh compared to natural gas .67 According to a 2022 Journal of Photovoltaics study, utility-scale solar power produces between 394 and 447 MWh per acre per year.68 When displacing electricity from natural gas, an acre of solar panels, producing zero-emissions electricity would therefore save between 385,000 to 436,000 pounds, or 175 to 198 metric tons, of carbon dioxide per year. 60 M.M. Aman, et al., A review of Safety, Health and Environmental (SHE) issues of solar energy system, 41 RENEWABLE A ND SUSTAINABLE ENERGY REVIEWS 1190 (2015), https://doi.org/10.1016/j.rser.2014.08.086. 61 Garvin A. Heath, Research and Development Priorities for Silicon Photovoltaic Module Recycling to Support a Circular Economy, 5 NA TURE ENERGY 502, 503 (2020), https://doi.org/10.1038/s41560-020-0645 -2; U.S. DEP’T OF ENERGY, O FFICE OF ENERGY EFFICIENCY & RENEWA BLE ENERGY, SOLAR ENERGY TECHNOLO GIES OFFICE, PHOTOVOLTAICS END-OF-LIFE ACTION P LA N 11 (2022), https://www.energy.gov/sites/default/files/2023-10/SETO-PV -End-of-Life -Action -Plan-1.pdf. 62 Md. Shahariar Chowdhury et al., An overview of solar photovoltaic panels’ end-of-life material recycling, 27 ENERGY STRAT . REVIEWS 100431, 100437 (2020), https://doi.org/10.1016/j.esr.2 019.100431 . 63 Jon Hurdle, As Millions of Solar Panels Age Out, Recyclers Hope to Cash In, Y A LE ENV ’T. 360 (Feb. 28, 2023), https://e360.yale.edu/features/solar-energy-panels-recyc ling. 64 Id. 65 5 Things You Need to Know About Solar, CITIZENS FOR RESPONSIBLE SOLAR, https://perma.cc/VE5H-U33V (last visited March 25, 2024). 66 Nat ’l Renewable Energy Laboratory, Life Cycle Greenhouse Gas Emissions from Electricity Generation: Update (Sept. 2021) (Table 1), https://www.nrel.gov/docs/fy21osti/80580.pdf . NREL calculates emissions intensity using grams of carbon dioxide equivalent per kilowatt -hour. 67 Id. 68 Mark Bolinger and Greta Bolinger, Land Requirements for Utility-Scale PV: An Empirical Update on Power and Energy Density, 12 IEEE J. V O LTAICS 589, 593 (2022), https://www.doi.org/10.1109/JPHOTOV.2021.3136805 . 7 By comparison, according to the EPA, an average acre of U.S. forest sequesters 0.857 metric tons of carbon dioxide per year.69 Thus, an average acre of solar panels in the United States reduced approximately 204 –231 times more carbon dioxide per year than an acre of forest. Furthermore, while removing trees from forests releases stored carbon, such emissions can be offset by solar energy generation and the resulting reduction in fossil fuel -driven emissions. The EPA has estimated the average acre of forests contains 83 metric tons of carbon, and approximately half of that amount is sequestered i n soil.70 Even assuming that all 83 metric tons of carbon (comprising 304 metric tons of carbon dioxide)71 were released when building a solar farm on an acre of forested land, those emissions could be offset within two years of operation of a typical solar farm.72 Finally, to put the threat to forests in context, only about 4% of solar projects in the United States are being sited on currently -forested lands.73 False Claim #5: Solar energy is worse for the climate than burning fossil fuels. “It is likely that solar farms are making climate change worse.”74 There is overwhelming evidence that the lifecycle emissions 75 of solar energy are far lower than those of all fossil fuel sources, including natural gas.76 On average, it takes only three years after installatio n for a solar panel to offset emissions from its production and transportation.77 Modern solar panels have a functional lifecycle of 30 –35 years, allowing more than enough time to achieve carbon neutrality and generate new emissions -free energy.78 A National Renewable Energy Laboratory (NREL) report released in 2021 examined “approximately 3,000 published life cycle assessment studies on utility-scale electricity generation from wind, solar photovoltaics, concentrating solar power, biopower, geother mal, ocean energy, hydropower, nuclear, natural gas, and coal technologies, as well as lithium -ion 69 Greenhouse Gas Equivalencies Calculator – Revision History, U.S. ENV ’T PROT . A GENCY, https://www.epa.gov/energy/greenhouse -gas- equivalencies-calculator-revision -history (last visited March 26, 2024). 70 Greenhouse Gas Equivalencies Calculator – Calculations and References, U.S. ENV ’T PROT . A GENCY, https://www.epa.gov/energy/greenhouse -gases-equivalencies-calculator-calculations-and-references (last visited March 26, 2024). 71 EPA ’s Greenhouse Gases Equivalencies Calculator explains that, to convert carbon density to carbon dioxide density, metric tons o f carbon should be multiplied by the ratio of the molecular weight of carbon dioxide to that of carbon (44/12). Id. 72 This calculation is based on the fact that an acre of solar panels displacing electricity from natural gas would save between 175 to 198 metric tons of carbon dioxide per year, as described earlier in this entry. 73 L. Kruitwagen et al., A Global Inventory of Photovoltaic Solar Energy Generating Units, 598 Nature 604 (October 2021) (Supplemental Data for Supplemental Figure 10), https://doi.org/10.1038/s41586 -021-03957-7. Supplemental data for Supplemental Figure 10 establishes that, as of December 2018, solar capacity across all land types in the U.S. was 54.14 GW, while solar c apacity across land labelled as “tree covered ” was 2.15 GW. Id. This represents roughly 4% of the total capacity. 74 NO TO S O LAR , supra note 7. 75 Lifecycle emissions for energy technologies encompass emissions associated with the operation of an energy facility, such as combustion of fossil fuels. Lifecycle emissions also encompass upstream emission s associated with resource extraction, manufacturing, and construction of a facility, along with downstream emissions associated with decommissioning of a facility. Nat ’l Renewable Energy Laboratory, supra note 66 , at 1. 76 See generally id. at 3; Steffen Schlömer et al., 2014: Annex III: Technology-specific Cost and Performance Parameters, CLIMATE CHA NGE 2014: MITIGATION O F CLIMATE CHANGE 1329, 1335 (2014), https://www.ipcc.ch/site/assets/uploads/2018/02/ipcc_wg3_ar5_annex - iii.pdf; Carbon Footprint of Solar Panel Manufacturing, CO OL EFFECT (June 1, 2021), https://www.cooleffect.org/solar-carbon-footprint . 77 See CO OL EFFECT , supra note 76. 78What Is End-of-Life Management for Photovoltaics?, U.S. DEP ’T OF ENERGY SOLAR ENERGY T ECH. OFFICE , https://www.energy.gov/eere/solar/end -life -management-solar-photovoltaics (last visited March 25, 2024). 8 battery, pumped storage hydropower, and hydrogen storage technologies.”79 The report found widespread agreement that all modes of solar power have total lifec ycle emissions significantly below those of all fossil fuels.80 The report found specifically that the total lifecycle emissions for solar photovoltaic (PV) and concentrating solar power (CSP) panels were 43 and 28 grams of CO2-eq/KWh (carbon dioxide-equivalents per kilowatt-hour), respectively.81 Coal, by contrast, generated lifecycle emissions of 1,001 grams of CO2-eq/KWh, and natural gas generated lifecycle emissions of 486 grams of CO 2- eq/KWh.82 Figure 2: Total lifecycle emissions for different energy sources. Source: NREL.83 To be fair, there are some outlier studies. For example, one study examined a worst -case scenario in which the coal - powered manufacture of inefficiently sized solar PV cells may contribute to greater lifecycle emissions than the cleanest and 79 See Nat ’l Renewable Energy Laboratory , supra note 66, at 1. 80 Id. at 1-3. 81 See Schlömer, supra note 76, at 1335. 82 Id. 83 Nat ’l Renewable Energy Laboratory, supra note 66, at 3. 9 most efficient fossil fuel plants.84 However, the conclusion that solar is worse for the climate than fossil fuels is not backed up by NREL’s more extensive survey. In addition to having smaller greenhouse gas emissions, solar power likewise outperforms fossil fuels in minimizing direct heat emissions. A 2019 Stanford publication notes that, for solar PV and CSP, net heat emissions are in fact negative, because these technologies “reduce sunlight to the surface by converting it to electricity,” ultimately cooling “the gr ound or a building below the PV panels.”85 The study found that rooftop and utility-scale solar PV have heat emissions equivalent to negative 2.2 g-CO2e/kWh-electricity, compared to the positive heat emissions associated with natural gas, nuclear, coal, and biomass. Technology Anthropogenic heat emissions Solar PV - rooftop -2.2 Solar PV - utility -2.2 CSP -2.2 Wind- onshore -1.7 to -0.7 Wind- offshore -1.7 to -0.7 Geothermal 0 Hydroelectric 0 Wave 0 Tidal 0 Nuclear 1.6 Biomass 3.4 Natural gas- CCS/U 0.61 Coal-CCS/U 1.5 Figure 3: The 100-year CO2e emissions impact associated with different energy sources’ heat emissions, measured in g-CO2e/kWh-electricity. Source: M.Z. Jacobson86 84 Jaime Fernández Torres & Fontina Petrakopoulou, A Closer Look at the Environmental Impact of Solar and Wind Energy, GLO BAL CHA LLENGES , June 22, 2022, https://onlinelibrary.wiley.com/doi/10.1002/gch2.202200016. 85 Mark Z. Jacobson, Evaluation of Nuclear Power as a Proposed Solution to Global Warming, Air Pollution, and Energy Security, Dec. 22, 2019, https://web.stanford.edu/group/efmh/jacobson/Articles/I/NuclearVsWWS.pdf . 86 Id. Reproduced and adapted with permission. 10 Looking at academic scholarship from outside of the United States, a 2022 University of Western Ontario study tracking the effect of anthropogenic heat emissions on global warming noted that solar technologies emit an “insignificant amount of heat.”87 Likewise, a 2022 analysis from India ’s Hirwal Education Trust’s College of Computer Science and Information Technology describes the global impact of solar panel heat emissions as “relatively small.”88 False Claim #6: Solar projects harm biodiversity. “Construction of an industrial-scale solar powerplant . . . creat[es] an ecological wasteland.”89 When properly developed, including by incorporating pollinator habitat in project design, large -scale solar farms can sustain and even increase natural biodiversity.90 Microclimates within solar farms can enhance botanical diversity, which, in turn can enhance the diversity of the site ’s invertebrate and bird populations.91 In addition, the shade under solar panels can offer critical habitat for a wide range of species, including endangered species.92 Shady patches likewise prevent soil moisture loss, boosting plant growth and diversity, particularly in areas impacted by climate extremes.93 Proactive measures taken before and after a solar farm ’s construction can further enhance biodiversity. Prior to installation, developers can mitigate adverse impacts by examining native species ’ feeding, mating and migratory patterns and ensuring that solar projects are not sited in sensitive locations or constructed at sensitive times.94 For example, developers can schedule construction to coincide with indigenous reptiles ’ and amphibians’ hibernation periods, while avoiding breeding periods.95 Additionally, developers can invest in habitat restoration once solar projects have been instal led, such as by replanting indigenous flowering species that provide nectar to insects, which also benefits mammals and ground nesting birds.96 A recent study on the impact of newly-established insect habitat on solar farms in agricultural landscapes found increases in 87 Dimitre Karamanev, The Effect of Anthropogenic Heat Emissions on Global Warming, EGUSPHERE 2022, https://egusphere.copernicus.org/preprints/2022/egusphere -2022-5/egusphere-2022-5.pdf. 88 Sudesh Nagu Kadam et. al, Solar Panel Heat Emission and Its Environmental Impact, 2 INT ’L J. A DV ANCED RSCH . SCI . COMMC ’N T ECH. 3 (Dec. 2022 ), 113, 116, https://ijarsct.co.in/Paper13924.pdf . 89 CITIZENS FOR RESPONSIBLE SO LAR , supra note 9. 90 Parikhit Sinha et al., Best Practices in Responsible Land Use for Improving Biodiversity at a Utility-Scale Solar Facility, 2 CA SE STUDIES IN THE ENV ’T, 1 , 1-2 (2018), https://doi.org/10.1525/cse.2018.001123 . 91 Id. 92 HA NNAH MO NTAG ET AL., T HE EFFECTS OF SOLAR FARMS ON LOCAL BIODIVERSITY at 34 (Apr. 2016), https://helapco.gr/wp - content/uploads/Solar_Farms_Biodiversity_Study.pdf ; Maggie Graham et al., Partial shading by solar panels delays bloom, increases floral abundance during the late‐season for pollinators in a dryland, agrivoltaic ecosystem, 11 SCI . REP. 7452, 7458, 7463 (2021), https://doi.org/10.1038/s41598-021-86756 -4. 93 Greg Barron -Bafford et al., Agrivoltaics provide mutual benefits across the food-energy-water nexus in the drylands, 2 NA T URE SUSTAINABILITY 848, 851 (2019), https://doi.org/10.1038/s41893 -019 -0364-5 . 94 The Biodiversity Consultancy, Mitigating biodiversity impacts associated with solar and wind energy development, IUCN (2021), 12, https://portals.iucn.org/library/sites/library/files/documents/2021 -004 -En.pdf. 95 Id. at 51. 96 Id. at 54, 82. 11 floral abundance, flowering plant species richness, insect group diversity, native bee abundance, and total insect abundance.97 Pollinators play a crucial role in U.S. farming, with more than one third of crop production reliant on pollinators .98 Bee populations alone contribute an estimated $20 billion annually to U.S. agriculture production and up to $217 billion worldwide.99 Recognizing these important contributions, the U.S. Department of Energy ’s Solar Technologies Office is currently funding or tracking numerous studies that seek to maximize solar farms ’ positive impacts on pollinator -friendly plants.100 False Claim #7: Solar projects will reduce agricultural production, hurting farmers and rural communities. “Ask yourself, if several thousand acres of agricultural land is converted to industrial solar facilities, who will grow your food? Bill Gates? Mark Zuckerberg?”101 Ambitious solar deployment would utilize a relatively small percentage of U.S. land when compared to the land currently being used for agriculture. The Department of Energy estimated that total U.S. solar development would take up roughly 10.3 million acres in a scenario in which cumulative solar deployment reaches 1,050–1,570 GW by 2050, the highest land- use scenario that DOE assessed in its 2021 Solar Futures Study.102 If all 10.3 million acres of solar farms were sited on farmland, they would occupy only 1.15% of the 895,300,000 acres of U.S. farmland as of 2021.103 However, many of these projects will not be located on farmland.104 Furthermore, solar arrays can be designed to allow, and even enhance, continued agricultural production on site. This practice, known as agrivoltaics, provides numerous benefits to farmers and rural communities, especially in hot or dry climates.105 Agrivoltaics allow farmers to grow crops and even to graze livestock such as sheep beneath or between rows 97 Leroy J. Walston et al., If you build it, will they come? Insect community responses to habitat establishment at solar energy facilities in Minnesota, USA, 19 ENVT’L RESEARCH LETTERS 14053 (2024), at 1 , https://iopscience.iop.org/article/10.1088/1748 -9326/ad0f72. 98 Pollinator Habitat Planting: CP42, U.S. DEP ’T A GRICULTURE, https://www.fsa.usda.gov/Internet/FSA_File/pollinator_fact_sht.pdf (last visited March 25, 2024). 99 Id. 100 Buzzing Around Solar: Pollinator Habitat Under Solar Arrays, U.S. DEP ’T ENERGY (Jun. 21, 2022), https://www.energy.gov/eere/solar/articles/buzzing -around -solar-pollinator-habitat -under-solar-arrays. 101NO SO LA R IN LOGAN CO UNTY (O HIO ), supra note 10. 102 U.S. Dep ’t. Energy Solar Energy Technologies Office, Solar Futures Study, U.S. DEP’T. ENERGY OFFICE OF ENERGY EFFICIENCY & RENEWABLE ENERGY , at vi, 179 (Sep. 2021), https://www.energy.gov/sites/default/files/2021 -09/Solar%20Futures%20Study.pdf . 103 U.S. Dep ’t. of Agriculture, Farms and Land in Farms: 2021 Summary, 4 (Feb. 2022), https://www.nass.usda.gov/Publications/Todays_Reports/reports/fnlo0222.pdf . 104 Eric Larson et al., Net-Zero American: Potential Pathways, Infrastructure, and Impacts: Final Report, Princeton University, 247 (Oct. 29, 2021), https://netzeroamerica.princeton.edu/the-report . 105 National Renewable Energy Laboratory, Agrivoltaics, https://www.nrel.gov/solar/market -research-analysis/agrivoltaics.html (last visited March 25, 2024). 12 of solar panels.106 When mounted above crops and vegetation, solar panels can provide beneficial shade during the day.107 Multiple studies have shown that these conditions can enhance a farm ’s productivity and efficiency.108 One study found, for example, that “lettuces can maintain relatively high yields under PV ” because of their capacity to calibrate “leaf area to light availability.”109 Extra shading from solar panels also reduces evaporation, thereby r educing water usage for crops by around 14-29%, depending on the level of shade.110 Reduced evaporation from solar installations can likewise mitigate soil erosion.111 Solar farms can also create refuge habitats for endangered pollinator species, further boost ing crop yields while supporting native wild species.112 Overall, agrivoltaics can increase the economic value of the average farm by over 30%, while increasing annual income by about 8%.113 Farmers in other countries have begun implementing agrivoltaic system s.114 As of March 2019, Japan had 1,992 agrivoltaic farms, growing over 120 different crops while simultaneously generating 500,000 to 600,000 MWh of energy.115 Furthermore, the argument that solar development will imperil the food supply is belied by the fac t that tens of millions of acres of farmland are currently being used to grow crops for other purposes, such as the production of corn ethanol. Currently, roughly 90 million acres of agricultural land in the United States is dedicated to corn, with nearly 45% of that corn being used for ethanol production.116 Solar energy could provide a significantly more efficient use of the same land. Corn-derived ethanol used to power internal combustion engines has been calculated to require between 63 and 197 times more land than solar PV powering electric vehicles to achieve the same number of transportation miles.117 If converted to electricity to power electric vehicles, ethanol would still need roughly 32 times more land than solar PV to achieve the same number of transportation miles.118 And even when accounting for other energy by-products of ethanol production, solar PV produces between 14 and 17 times more gross energy per acre than corn.119 The figure below contrasts the land use 106 Michael Nuckols, Considerations when leasing agricultural lands to solar developers, CO RNELL SMALL FA RMS (Apr. 6, 2020), https://smallfarms.cornell.edu/2020/04/considerations-when-leasing -agricultural-lands-to -solar-developers/; Elnaz Adeh et al., Solar PV power potential is greatest over croplands, 9 SC I. REP . 4 (2019), https://doi.org/10.1038/s41598 -019 -47803 -3 . 107 Henry J. Williams et. al., The potential for agrivoltaics to enhance solar farm cooling, A PPLIED ENERGY 332 (2023), https://doi.org/10.1016/j.apenergy.2022.120478. 108 Raúl Aroca-Delgado et al., Compatibility between Crops and Solar Panels: An Overview from Shading Systems, 10 SUSTAINABILITY 743, 745 (2018), https://doi.org/10.3390/su10030743 . 109 Hélène Marrou et. al, Productivity and Radiation use Efficiency of Lettuces Grown in the Partial Shade of Photovoltaic Panels, 44 EUR. J. A GRO NOMY 54, 60, 63 (2013), https://doi.org/10.1016/j.eja.2012.08.003 . 110 Harashavardhan Dinesh & Joshua M. Pearce, The potential of agrivoltaic systems, 54 RENEWA BLE AND SUSTAINABLE ENERGY REVIEWS 299, 302 (2016), https://doi.org/10.1016/j.rser.2015.10.024 . 111 Id. 112 Empowering Biodiversity on Solar Farms, UNIV ERSITY O F GEORGIA CO LLEGE O F A GRICULTURAL A ND ENVIRONMENTAL SCIENCES, 2020, https://www.caes.uga.edu/research/impact/impact -statement/9839/empowering -biodiversity-on-solar-farms.html. 113 Dinesh & Pearce, supra note 110 , at 305. 114 See, e.g., Makoto Tajima and Tetsunari Iida, Evolution of Agrivoltaic Farms in Japan, 2361 AIP CO NF. PROC . 030002 (2021), https://doi.org/10.1063/5.0054674. 115 Id. at 2 . This is enough energy to power roughly 50,000 American households. U.S. Energy Information Admin., Use of energy explained: Energy use in homes, https://www.eia.gov/energyexplained/use-of-energy/electricity-use -in-homes.php (last visited March 25, 2024). 116 Feed Grains Sector at a Glance, U.S. DEP ’T OF A GRICULTURE (last updated Dec. 21, 2023), https://www.ers.usda.gov/topics/crops/corn - and-other-feed-grains/feed-grains-sector-at -a-glance/. 117 P A UL MA THEWSON & NIC HOLAS BO SCH, CORN ETHANOL V S . SO LAR: LAND USE CO MPARISON at 1 (Clean Wisconsin 2023), https://www.cleanwisconsin.org /wp -content/uploads/2023/01/Corn -Ethanol-Vs.-Solar-Analysis-V3 -9-compressed.pdf . 118 Id. 119 Id. 13 requirements of solar PV with dedicated biomass and other energy sources. Whereas dedicated biomass consumes an average of 160,000 hectares of land per terawatt-hour per year, ground-mounted solar PV consumes an average of 2,100.120 Figure 4: Average land-use intensity of electricity, measured in hectares per terawatt-hour per year. Source: U.S. Global Change Research Program (visualizing data from Jessica Lovering et al.).121 Finally, while solar installations, like any infrastructure projects, will inevitably have some adverse impacts, the failure to build the infrastructure necessary to avoid climate change poses a far more severe threat to agricultural production. Climate change already harms food production across the country and globe through extreme weather events, weather instability, and water scarcity.122 The most recent Intergovernmental Panel on Climate Change (IPCC) report forecasts that climate change will cause up to 80 million additional people to be at risk of hunger by 2050.123 A 2019 IPCC report forecasted up 120 Jessica Lovering et al., Land-use intensity of electricity production and tomorrow’s energy landscape, PLOS ONE , July 2022, at 8, https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0270155#pone -0270155-t001 . 121 U.S. GLO BA L CHA NGE RESEARCH PROGRAM, FIFTH NA TIONAL CLIMA TE A SSESSMENT at 32 -29 (2023), https://nca2023.globalchange.gov/downloads/NCA5_Ch32_Mitigation.pdf (visualizing data from Jessica Lovering et al., supra note 120 at 8). 122 Alisher Mirzabaev et al., Severe climate change risks to food security and nutrition, 39 Climate Risk Management 100473, 3 (2023), https://www.sciencedirect.com/science/article/pii/S2212096322000808 (“Adverse consequences are already occurring, and the chances of their exacerbation under climate change are high ”); FO O D AND A GRICULTURE ORGANIZATION OF THE UNITED NATIONS, CLIMATE CHANGE A ND FO O D SECURITY: RISKS A ND RESPONSES at ox-xii (2015), https://www.fao.org/3/i5188e/I5188E.pdf ; Agriculture and Climate, U.S. ENV ’T. P RO T . A GENCY, https://www.epa.gov/agriculture/agriculture -and-climate (last visited March 25, 2024); Laura Reiley & Kadir van Lohuizen, Climate change is pushing American farmers to confront what’s next, WASH. PO ST, Nov. 10, 2023, https://www.washingtonpost.com/business/interactive/2023/american -agriculture -farming -climate -change/. 123 IPCC, Climate Change 2022: Impacts, Adaptation, and Vulnerability (2022), 717, https://report.ipcc.ch/ar6/wg2/IPCC_AR6_WGII_FullReport.pdf . 14 to 29% price increases for cereal grains by 2050 due to climate change.124 These price increases would strain consumers globally, while also producing uneven regional effects.125 Moreover, while higher carbon dioxide levels may initially increase yield for certain crops at lower temperature increases , these crops will likely provide lower nutritional quality.126 For example, wheat grown at 546–586 parts per million (ppm) CO2 has a 5.9–12.7% lower concentration of protein, 3.7 –6.5% lower concentration of zinc, and 5.2–7.5% lower concentration of iron.127 Distributions of pests and diseases will also change, harming agricultural production in many regions.128 Such impacts will only intensify for as long as we continue to burn fossil fuels.129 False Claim #8: Solar development will destroy U.S. jobs. “Requirements for renewable energy mean that Americans’ oil and gas jobs are being sacrificed to Chinese making wind turbines and solar panels.”130 Solar development creates significantly more jobs per unit of energy generated than other types of energy production, including natural gas.131 Moreover, the number of jobs created by the renewable energy industry, including solar, is exp ected to far exceed the number lost due to a shift away from fossil fuels. The United States ’ Fifth National Climate Assessment predicts that there will be nearly 3,000,000 new solar, wind, and transmission -related jobs by 2050 in a high electrification scenario and 6,000,000 new jobs in a 100% renewable scenario, with less than 1,000,000 fossil fuel -related jobs lost.132 124 Chiekh Mbow et al., Food Security, in Climate Change and Land: an IPCC special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gases fluxes in terrestrial ecosystems, Exec. Summary, Intergovernmental Panel on Climate Change, https://www.ipcc.ch/srccl/chapter/chapter-5/ (2019). 125 Id.; see also Climate Change 2022: Impacts, Adaptation, and Vulnerability, supra note 123 , at 796. 126 Climate Change 2022: Impacts, Adaptation, and Vulnerability, supra note 123 , at 717. 127 Mbow et al., supra note 124 . 128 Id.; Climate Change 2022: Impacts, Adaptation, and Vulnerability, supra note 123 , at 718. 129 Causes and Effects of Climate Change, UNITED NATIONS, https://www.un.org/en/climatechange/science/causes-effects-climate -chang (last visited March 25, 2024). 130 Diana Furchtgott-Roth, The Hypocrisy of the Left on Energy Policy, HERITAGE FO UNDATION (May 9, 2023), https://www.heritage.org/energy -economics/commentary/the -hypocrisy-the -left-energy-policy. 131 National Association of State Energy Officials et al., Wages, Benefits and Change, https://www.usenergyjobs.org/s/Wage -Report.pdf (last visited March 25, 2024). 132 U.S. GLO BA L CHA NGE RESEARCH PROGRA M, FIFTH NA TIONAL CLIMA TE A SSESSMENT , supra note 121, at 32 -31. 15 Figure 5: Energy employment from 2020 to 2050 under various U.S. net-zero GHG emissions scenarios. Source: U.S. Global Change Research Program.133 As of 2022, the solar industry supported approximately 346,143 U.S. jobs, including 175,302 construction jobs and 44,875 manufacturing jobs, with numbers generally increasing each year.134 In addition, most of these jobs cannot be outsourced. Roughly 65% of today’s U.S. solar energy jobs are in project development and 6% are in operations or maintenance, most of which cannot be exported.135 The number of jobs in solar energy also exceeds those in the fossil fuel generation industries. In Kentucky, for example, there are now eight times as many jobs in clean energy, including solar, as coal mining.136 Throughout the United States, there are roughly 5.4 times as many jobs in solar alone than in coal, and there are roughly 1.78 times as many jobs in solar than in coal, gas, and oil generation combined.137 Domestic job growth in solar production and related industries has been further accelerated by recent federal legislation, including the 2021 Infrastructure Investment and Jobs Act, and the 2022 Inflation Re duction Act, which collectively provide more than $60 billion to support clean energy manufacturing, primarily with domestic supply chains.138 In response, manufacturers have announced plans to build multibillion dollar solar panel manufacturing facilities a nd related battery 133 Id. 134 United States Energy & Employment Report 2023, U.S. DEP’T OF ENERGY (June 2023), https://www.energy.gov/sites/default/files/2023-06/2023%20USEER%20REPORT -v2.pdf. 135 National Solar Jobs Census 2022, INTERSTATE RENEWABLE ENERGY COUNCIL, https://irecusa.org/programs/solar-jobs-census/ (last visited March 25, 2024). 136 Ryan Van Velzer, Kentucky has the second fastest growing clean energy sector in the U.S., LOUISVILLE PUBLIC MEDIA , Sept. 27, 2023, https://www.lpm.org/news/2023 -09-27/kentucky-has-the -second -fastest -growing -clean-energy-sector-in-the -u-s. 137 United States Energy & Employment Report 2023, supra note 134 at 4. 138 DOE Optimizes Structure to Implement $62 Billion in Clean Energy Investments From Bipartisan Infrastructure Law, U.S. Dep ’t. Energy (Feb. 9, 2022), https://www.energy.gov/articles/doe-optimizes-structure -implement-62 -billion-clean-energy-investments- bipartisan. 16 manufacturing facilities in the United States that will employ thousands of workers.139 At a smaller scale, the emerging solar recycling industry has also begun to create jobs.140 False Claim #9: Reliance on solar will make the United States dependent on China and other countries. “One of the biggest mistakes the West has done on green policies to cut CO2 emissions and trying to reduce dependence on oil and gas producing nations is that the transition to renewable energy puts the West at the mercy of China.”141 Although the United States still imports a majority of the solar panels it installs, domestic solar manufacturing is on the r ise, especially following passage of the 2021 Infra structure Investment and Jobs Act (IIJA), and the 2022 Inflation Reduction Act (IRA).142 In 2022, the United States manufactured approximately 10% more solar panels than in 2021.143 This share is likely to grow as manufacturers take advantage of IIJA and IRA i ncentives to open factories in the United States.144 In addition, as previously noted, roughly 65% of today’s U.S. solar production jobs are in project development and 6% are in operations or maintenance, most of which cannot be outsourced.145 139 See, e.g., Syris Valentine, The IRA has injected $240 billion into clean energy. The US still needs more, GRIST , Mar. 12, 2024, https://grist.org/economics/the-ira-has-injected-250-billion-into -clean-energy-it -might -not-be-enough/; Zack Budryk, White House touts biggest single investment in US solar by Korean company, The Hill (Jan. 11, 2023), https://thehill.com/policy/energy - environment/3807489 -white-house -touts-biggest -single -investment-in-u-s-solar-energy-by-korean-company/; Gov. Kemp: Battery Manufacturer to Invest $2.57B, Create Over 700 Jobs in Coweta County, Governor Brian P. Kemp Office of the Governor (Nov. 11, 2022), https://gov.georgia.gov/press-releases/2022-11 -11/gov-kemp-battery-manufacturer-invest -257b-create-over-700-jobs-coweta. 140 Jon Hurdle, As Millions of Solar Panels Age Out, Recyclers Hope to Cash In, Y A LE ENVIRONMENT 360 (February 28, 2023), https://e360.yale.edu/features/solar-energy-panels-recycling; SOLARCYCLE Raises $30M to Scale Advanced Recycling for the Solar Industry, SolarCycle News (March 15, 2023), https://www.solarcycle.us/press-releases/solarcycle -raises-30m-equity-financing -to -scale - advanced-recycling -for-the -solar-industry. 141 Kenneth Rapoza, How China’s Solar Industry Is Set Up to Be the New Green OPEC, FO RBES (Mar. 14, 2021), https://www.forbes.com/sites/kenrapoza/2021/03/14/how -chinas-solar-industry-is-set -up-to -be -the -new-green- opec/?sh=f3f6e851446d . 142 U.S. solar photovoltaic module shipments up 33% in 2020, U.S. ENERGY INFORMATION A DMINISTRATION (Sep. 2, 2021), https://www.eia.gov/todayinenergy/detail.php?id=49396 ; U.S. Dep’t. of Energy Solar Energy Tech. Office, Solar manufacturing, U.S. DEP ’T . O F ENERGY OFFICE OF ENERGY EFFICIENCY AND RENEWABLE ENERGY, https://www.energy.gov/eere/solar/solar-manufacturing (last visited March 25, 2024). 143 David Feldman et al., Spring 2023 Solar Industry Update, NA T’L RENEWABLE ENERGY LA BORATORY , 68 (Apr. 27, 2023), https://www.nrel.gov/docs/fy23osti/86215.pdf . 144 U.S. Dep ’t. of Energy, DOE Fact Sheet: The Bipartisan Infrastructure Deal Will Deliver For American Workers, Families and Usher in the Clean Energy Future, U.S. DEPARTMENT OF ENERGY (Nov. 9, 2021), https://www.energy.gov/articles/doe-fact-sheet-bipartisan- infrastructure -deal-will-deliver-american-workers-families-and-0 ; Bella Isaacs-Thomas, What the Inflation Reduction Act does for green energy, PBS NEWS HO UR (Aug. 17, 2022), https://www.pbs.org/newshour/science/what -the -inflation-reduction-act-does-for-green- energy; U.S. Dep ’t of Energy, Inflation Reduction Act of 2022, https://www.energy.gov/lpo/inflation -reduction-act-2022; Kavya Balaraman, Inflation Reduction Act could spur American Manufacturing Renaissance, Advocates Say, UTILITYDIVE (Aug. 18, 2022 ), https://www.utilitydive.com/news/inflation -reduction-act -solar-manufacturing -seia/630061/. 145 INTERSTATE RENEWABLE ENERGY CO UNCIL, supra note 13 5. 17 Finally, to the extent that there are concerns that solar energy will increase the United States ’ dependence on China specifically, it bears noting that China is no longer a major source of solar panel imports —at least not directly.146 Tariffs imposed by the U.S. government in 2012 on Chinese-sourced solar panels have considerably diminished China ’s status as a principal U.S. supplier. In 2022, approximately 77% of U.S. solar panel imports came from four countries: Vietnam (37%), Thailand (17%), Malaysia (16%) and Cambodia (7%).147 While the U.S. Department of Commerce found that companies in these four countries have been incorporating Chinese -sourced materials without paying corresponding tariffs, the U.S. Government has taken measures to crack down on noncompliance.148 In particular, the U.S. Government now requires, as of June 2024, that solar manufacturers exporting from these countries to the U.S. certify their compliance with all relevant trade rules, subject to potential audit.149 False Claim #10: Utility-scale solar farms d estroy the value of nearby homes. “Solar power plants decrease property values. Over time, industrial-scale solar counties’ property values will decline and the county become less desirable, while other location’s [sic] values will increase.”150 Data across multiple studies show that utility-scale solar projects do not have major impacts on the values of surrounding properties.151 Rather, the installation of a solar farm typically has only a minor impact on the value of homes closest to it. The most comprehensive study to date, which examined over 1.8 million home transactions near 1,500 large -scale photovoltaic projects across six states, found relatively minor impacts on property values.152 Homes located within 0.5 miles of solar farms were found to experience price reductions of 1.5%, compared to properties 2 –4 miles away.153 Homes located more than 1 mile from a solar farm were found to experience no statistically significant effect on its price.154 Similarly, a 2020 study examining 400,000 transactions around 208 utility-scale solar installations in Massachusetts and Rhode Island found a 1.7% decrease in property value for homes located within 1 mile of a project.155 These declines were concentrated 146 David Feldman et al., supra note 143, at 68, 80; Ian Tiseo, Distribution of solar photovoltaic modules imported in the united States in 2022, by country of origin, STA TISTA , Jan. 25, 2024, https://www.statista.com/statistics/232941/us-imports-of-solar-equipment-by- source -contry/. 147 David Feldman et al., supra note 143, at 68, 80. 148 Eric McDaniel, The U.S. Imports Most of Its Solar Panels. A New Ruling Might Make That More Expensive, NA TIONAL PUBLIC RA DIO (Aug. 18, 2023), https://www.npr.org/2023/08/18/1194303196/solar-panel-imports-china%20and%20. 149 U.S. Department o f Commerce, Department of Commerce Issues Preliminary Determination of Circumvention Inquiries of Solar Cells and Modules Produced in China, Dec. 2, 2022 , https://www.commerce.gov/news/press-releases/2022/12/department-commerce- issues-preliminary-determination -circumvention. 150 Property Values, CITIZENS FOR RESPONSIBLE SOLAR, https://www.citizensforresponsiblesolar.org/property -values (last visited March 25, 2024). 151 Richard Kirkland, Grand Solar Impact Study, KIRKLAND A PPRAISALS , (Feb. 25, 2016), https://www.southripleysolar.com/wp - content/uploads/2020/09/Kirkland -Grandy-Solar-Impact -Study.p df; Solar and Property Value, SOLAR ENERGY INDUSTRIES A SSOCIATION (Jul. 2019), https://www.seia.org/sites/default/files/2019-09/Solar%2 0Property%20Value%20FactSheet%202019 -PRINT_1.pdf. 152 Salma Elmallah et al., Shedding Light on Large-Scale Solar Impacts: An Analysis of Property Values and Proximity to Photovoltaics Across Six U.S. States, 175 Energy Policy 113425 (2023), https://doi.org/10.1016/j.enpol.2023.113425 . 153 Id. at 113425. 154 Id. 155 Vasundhara Gaur et al., Property Value Impacts of Commercial-Scale Solar Energy In Massachusetts And Rhode Island, DEP ’T . ENV ’T. A ND NA T. RES . ECON. U. R.I., 4 (2020), https://www.uri.edu/news/wp- content/uploads/news/sites/16/2020/09/PropertyValueImpactsOfSolar.pdf . 18 in suburban areas, where there is more competition for space.156 In rural communities there was no impact on property values.157 Other studies have also found that utility-scale solar farms have a greater impact on property values in areas with higher residential population density.158 Yet other studies have found that solar panels can have a neutral or even a positive impact on home values. A 2018 study of solar farms in Indiana and Illinois found “no consistent negative impact” to the value of adjacent properties “that could be attributed to proximity to the adjacent solar farm .”159 Instead, the researchers discovered that properties within 1,320 feet of solar farms sold by an average of 1.92% more than comparable properties that were not located near any solar farms.160 Another 2018 study examined 956 U.S. solar projects installed before 2016 and found a majority of these projects had a neutral impact on property values.161 By contrast, a separate study found that the presence of a fossil fuel fired power plant within 2 miles of one ’s home decreased its value by 4–7%, with the largest decreases within 1 mile and for high-capacity plants.162 In that study, 92% of the power plants surveyed were fueled by natural gas.163 False Claim #11: Solar energy is more expensive than fossil fuels and completely dependent on subsidies. “Solar farms depend entirely on subsidies from your hard earned money. When the subsidies are gone, the solar farms are abandoned!”164 Unsubsidized solar energy is now generally cheaper than fossil fuels. According to the International Energy Agency ’s 2020 World Energy Outlook, photovoltaic solar power is “the cheapest source of new electricity generation in most parts of the world,” and “[f]or projects with low cost financing that tap high quality resources, solar PV is now the cheapest source of electricity in history.” 165 Solar energy compares favorably to fossil fuels in terms of levelized cost (i.e., lifetime costs divided by lifetime energy output). According to Lazard’s April 2023 Levelized Cost of Energy Analysis, the mean unsubsidized levelized cost of utility - 156 Id. at 35. 157 Id. at 35. 158 Leila Al-Hamoodah et al., An Exploration of Property-Value Impacts Near Utility-Scale Solar Installations, LA WRENCE BERKELEY NA TIONAL LA BO RATORY (May 2018), https://static1.squarespace.com/static/58d03116725e2542873aa638/t/6058df6f1107f91adc9cc20d/1616437113682/Link+in+No.+13C +-+An+Exploration+of+Property+Value+Impacts+Near+Utility+Scale+Solar+Installations.pdf . 159 P A TRICIA MC GARR & A NDREW LINES , PROPERTY V ALUE IMPACT STUDY: PROPOSED SOLAR FA RM, MC LEAN CO UNTY, IL, at 17, (Aug. 7, 2018), https://www.mcleancountyil.gov/DocumentCenter/View/13192/Patricia -L-McGarr—Property-Value -Impact -Study. 160 Id. 161 Leila Al-Hamoodah et al., supra note 158. 162 Lucas Davis, The Effect of Power Plants on Local Housing Value and Rents, 93 REV . ECON. STAT . 1391 (2011), https://doi.org/10.1162/rest_a_00119. 163 Id. at 1400. 164 164 NO TO SOLA R, supra note 7. 165 World Energy Outlook 2020, INT’L. ENERGY A GENCY , 202, 214 (2020), https://iea.blob.core.windows.net/assets/a72d8abf -de08 -4385- 8711-b8a062d6124a/WEO2020.pdf. 19 scale solar PV is $60/MWh.166 By comparison, the mean unsubsidized levelized cost of gas combined cycle is $70/MWh, the mean unsubsidized levelized cost of coal is $117/MWh, and the mean unsubsidized levelized cost of gas peaking is $168/MWh.167 The figure below from Lazard shows historical mean unsubsidized LCOE values for different types of utility - scale energy generation. Figure 6: Selected historical mean unsubsidized LCOE values. This graph reflects the average of the high and low LCOE for each technology in each year. The percentages on the right of the figure represent the decrease in average LCOE since 2009. Source: Lazard.168 Lazard attributes the significant historical cost declines for utility -scale renewable energy generation to decreasing capital costs, improving technologies, and increased competition, among other factors.169 For solar energy, as with onshore wind energy and electric vehicle batteries, historical decreases in costs have correlated with increases in cumulative capacity an d sales.170 As one example of decreasing costs of solar generation, the figure below from Inside Climate News shows a roughly 90% decline in solar module prices from 2011 to 2023.171 166 Levelized Cost of Energy Analysis: Version 16.0, LA ZARD , 9 (Apr. 2023), https://www.lazard.com/media/2ozoovyg/lazards-lcoeplus- april-2023.pdf. 167 Id. 168 Id. Reproduced with permission. 169 Id. 170 See U.S. GLO BAL CHA NGE RESEARCH PROGRAM, supra note 121 at 32 -15. 171 Dan Gearino, Inexpensive Solar Panels Are Essential for the Energy Transition. Here’s What’s Happening With Prices Right Now, INSIDE CLIMATE NEWS (Jun. 15, 2023), https://insideclimatenews.org/news/15062023/inside -cle an-energy-solar-panel-prices-drop/. 20 Figure 7: Solar price from 2011 to 2023. Source: BloombergNEF/Paul Horn/Inside Climate News.172 In addition to the many factors reducing solar ’s unsubsidized LCOE, there are substantial subsidies that will further reduce cost on a subsidized basis. In particular, the Inflation Reduction Act is predicted to reduce the subsidized LCOE for solar by 20%–35% by 2030. 173 The figure below from ICF shows the anticipated impact of the IRA on the subsidized LCOE for solar. 172 Id. Reproduced with permission. 173 Ian Bowen et al., How clean energy economics can benefit from the biggest climate law in US history, ICF (Sept. 16, 2022), https://www.icf.com/insights/energy/clean -energy-economic-benefits-us-climate -law ; see also Lazard, supra note 166 , at 3. 21 Figure 8: Impact of the IRA on anticipated LCOE in 2030. Source: ICF.174 Fossil fuels also receive subsidies, albeit smaller subsidies than renewable energy currently received.175 In fiscal year 2022, the federal government’s tax expenditures for natural gas and petroleum subsidies were $2.1 billion.176 One shortcoming of relying on levelized cost as a metric for comparing solar with natural gas and other types of legacy power plants is that levelized cost does not take into account that additional energy generation is needed to compensate for any intermittency. But even when factoring in these so -called firming costs, the subsidized and unsubsidized LCOE of stand-alone solar is lower than the levelized cost of gas peaking and cost -competitive with gas combined cycle across most of the United States.177 Solar-plus-storage systems are more expensive. However, when factoring in firming costs, both the subsidized and unsubsidized LCOE of solar plus storage is generally within or below the range of LCOE for gas peaking, depending on location within the United Sta tes.178 174 Id. Reproduced with permission. 175 Federal Financial Interventions and Subsidies in Energy in Fiscal Years 2016 -2022, U.S. Energy Information Admin., at 3 (Aug. 2023), https://www.eia.gov/analysis/requests/subsid y/pdf/subsidy.pdf. 176 Id. at 3 -4. 177 LA ZA RD, supra note 166 , at 8. California is the exception, where the subsidized and unsubsidized LCOE of solar exceeds that of gas combined cycle when factoring in firming costs. Id. 178 Id. 22 Figure 9: LCOE for wind, solar, and solar plus storage, adjusted for the cost of firming intermittency. Source: Lazard.179 False Claim #12: Solar panels don’t work in cold or cloudy climates. “A cloud goes over and solar plummets”180 Solar panels generate energy even in cold or cloudy conditions.181 Although cloudy weather may reduce power generation by as much as 45%, substantial energy can still be generated during those conditions.182 Cold temperatures, however, do not reduce output at all and actua lly increase solar panel efficiency by increasing voltage.183 179 Id. Reproduced with permission. 180 Brian Gitt, Solar’s Dirty Secrets: How Solar Power Hurts People and the Planet, A TOMIC INSIGHTS (Feb. 24, 2022), https://atomicinsights.com/solars-dirty-secrets-how-solar-power-hurts-people -and-the -planet/. [See comment from Chris Morris, March 17, 2022 at 2:23 AM]. 181What happens to solar panels when it's cloudy or raining?, SO LA R ENERGY INDUSTRIES A SSOCIATION, https://www.seia.org/initiatives/what-happens-solar-panels-when-its-cloudy-or-raining (last visited March 25, 2024); Makbul A.M. Ramli et al., On the investigation of photovoltaic output power reduction due to dust accumulation and weather conditions, 99 RENEWABLE ENERGY 836, 843 (2016), https://doi.org/10.1016/j.renene.2016.07.063 . 182 Ramli et al., supra note 181, at 843. 183 Pranjal Sarmah et al., Comprehensive Analysis of Solar Panel Performance and Correlations with Meteorological Parameters, 8 ACS O MEGA 47897, 47900 (2023), https://doi.org/10 .1021/acsomega.3c06442 . 23 False Claim #13: Solar energy is unreliable and requires 100% fossil fuel backup. “[S]olar plants require 100% back up all the time by fossil fuels.”184 Complete reliance on solar generation, without battery storage, wind power, or long-distance transmission, would pose intermittency challenges. However, an increasing number of planned solar projects are set to include an energy storage component,185 and solar, wind and storage together can provi de the majority of the country’s electricity without compromising reliability.186 When a local service area does face diminished solar capacity, for instance during a cloudy day, wind and other renewable sources, as well as battery storage and long -distance transmission that carries power from sunnier regions can supplement energy supply, ensuring a resilient grid.187 As a result, increased reliance on solar energy need not require the construction of new natural gas plants for backup.188 The Department of Energy’s 2021 “Solar Futures Study,” for example, outlines three distinct decarbonization scenarios, each of which assumes both a massive increase in renewable energy generation and decrease in natural gas.189 Under the “business as usual” reference scenario, natural gas, oil, and steam together decrease from roughly 39% of U.S. annual electricity generation in 2020 to roughly 31% by 2035/2036 and 30% by 2049/2050; under the same scenario, solar PV increases from roughly 3.4% in 2020 to 17.6% by 2035/2036 and 27.3 % by 2049/2050.190 Under the two non-reference decarbonization scenarios assessed in the studies, natural gas, oil, and steam shrink to roughly 4.7%-5.2% of annual electricity generation by 2035/2036 and 0% by 2049/2050; solar PV, meanwhile, increases to between 36.9% and 42.2% by 2035/36 and to between 40.1% and 44.8% by 2049/2050.191 Princeton University’s Net-Zero America study, which assesses pathways to achieving net -zero GHG emissions by 2050, likewise foresees significant reductions in fossil fuel consum ption and generation, even when maintaining 500 -1,000 GW of firm generating capacity to ensure reliability.192 Across the suite of assessed net-zero scenarios, the study assumes that all thermal coal production and consumption will cease by 2030, oil product ion will decline between 25% to 85% by 2050, and natural gas production will decline between 20% and 90% by 2050.193 184 Solar Energy Is Unreliable, CITIZENS FOR RESPONSIBLE SOLAR, https://www.citizensforresponsiblesolar.org/solar-unreliable (last visited March 25, 2024). 185 JO SEPH RA ND ET A L., Q UEUED UP : CHA RACTERISTICS O F POWER P LA NTS SEEKING T RANSMISSION INTERCONNECTION A S OF THE END O F 2021 at 13 (Berkely Lab 2022), https://eta-publications.lbl.gov/sites/default/files/queued_up_2021_04 -13-2022.pdf. 186 See Eric Larson et al., supra note 104 , at 88 (noting that, “[t]o ensure reliability, all cases maintain 500 -1,000 GW of firm generating capacity through all years,” compared to 7,400-9,900 GW for wind and solar in net -zero scenarios for 2050). 187 Robert Fares, Renewable Energy Intermittency Explained: Challenges, Solutions, and Opportunities, Scientific America (Mar. 11, 2015), https://blogs.scientificamerican.com/plugged-in/renewable -energy-intermittency-explained -challenges-solutions-and- opportunities/; Mark Jacobson, Renewable Energy’s Intermittency is Not a Showstopper, A M. PHYSICAL SO C ’Y . (Apr. 20, 2022), https://physics.aps.org/articles/v15/54 . 188 The 2035 Report: Plummeting Solar, Wind, and Battery Costs Can Accelerate our Clean Electricity Future, U. CA L. BERKELEY GOLDMAN SC H . PUB. POL’Y , 4 (2020), https://cta-redirect.hubsp ot.com/cta/redirect/6000718/8 a85e9ea-4ed3-4ec 0-b4c6 -906934306ddb. 189 U.S. Dep ’t. Energy Solar Energy Technologies Office, Solar Futures Study, supra note 102, at 215. 190 Id. 191 Id. 192 Eric Larson et al., supra note 104 , at 88, 261. 193 Id. at 261. 24 California has already increased solar energy generation while decreasing natural gas utilization. In 2012, solar PV and sola r thermal together accounted for only 0.9% of California ’s in-state electricity generation, while natural gas accounted for roughly 70%.194 By 2022, solar had increased to 19.9% of California ’s in-state electricity generation, while natural gas had decreased to 47.5%.195 Significantly, even with this increase in solar reliance, California ’s grid reliability remains near, or above, the national average.196 Elsewhere in the United States, energy experts have asserted that Texas ’s widespread adoption of solar generation helped pre vent outages when electricity usage spiked during a recent summer heatwave.197 And although the reliability of solar and wind energy was questioned following Texas ’ widespread power outages in the winter of 2021, Texas’ grid failure was primarily caused by freezing natural gas infrastructure, rather than failures at solar and wind farms, though nuclear, coal, and wind also experienced disruption s at a smaller scale .198 Energy storage also will play an important role in achieving decarbonization, while improving energy reliability. The DOE’s “Solar Futures Study” forecasts that an additional 60 GW per year of storage will be needed to achieve decarbonization.199 Fortunately, research on storage technologies has experienced significant breakthroughs in recent years. For example, sodium-ion batteries have emerged as a possible alternative to lithium -ion batteries, with sodium a much more abundant and less expensive material.200 Researchers are likewise developing more efficient utility-scale methods for storing solar energy.201 Finally, while solar energy is intermittent, multiple studies have shown that the panels themselves are highly reliable —with appreciably low degradation and failure rates, thus rarely requiring repair or replacement.202 A National Renewable Energy Laboratory (NREL) study found that the median failure rate for panels installed between 2000 to 2015 was five out of 194 California Energy Comm’n., Electric Generation Capacity and Energy, https://www.energy.ca.gov/data-reports/energy- almanac/california-electricity-data/electric -generation-capacity-and -energy (last visited March 25, 2024). 195 California Energy Comm’n, 2022 Total System Electric Generation, https://www.energy.ca.gov/data-reports/energy- almanac/california-electricity-data/2022 -total-system-electric-generation (last visited March 25, 2024 ). 196 California Public Utilities Comm’n, Electric System Reliability Annual Reports, https://www.cpuc.ca.gov/industries-and- topics/electrical-energy/infrastructure/electric -reliability/electric -system-reliability-annual-reports (last visited March 25, 2024). In 2020, five of California’s six investor-owned utilities had frequency of sustained outages below national average when including major event days; four of six had frequency of sustained outages below national average when excluding major event days; four of six had dur ation of outages below national average when including major event days; and four of six had duration of outages below national ave rage when excluding major event days. “Major event days” consist of the worst 0.63% of outage events. Id. 197 See E&E News & Benjamin Storrow, Solar Power Bails Out Texas Grid During Major Heat Wave, SC IENTIFIC A MERICAN, June 26, 2023, https://www.scientificamerican.com/article/solar-power-bails-out -texas-grid-during-major-heat -wave/. 198 Joshua W. Busby et al., Cascading risks: Understanding the 2021 winter blackout in Texas, 77 ENERGY RESEARCH AND SOCIAL SCIENCE 102106, 1 -4 (2021), https://www.sciencedirect.com/science/article/pii/S2214629621001997 ; Adriana Usero & Salvador Rizzo, ‘Frozen windmills’ aren’t to blame for Texas’s power failure, W A SH . PO ST, Feb. 18, 2021, https://www.washingtonpost.com/politics/2021/02/18/frozen -windmills-arent -blame -texass-power-failure -neither-is-green-new-deal/; Dionne Searcey, No, Wind Farms Aren’t the Main Cause of the Texas Blackouts, N.Y. T IMES , Feb. 17, 2021 (updated May 3, 2021), https://www.nytimes.com/2021/02/17/climate/texas-blackouts-disinformation.html. 199 U.S. Dep ’t. Energy Solar Energy Technologies Office, Solar Futures Study, supra note 102 at 33. 200 Karyn Hede, Longer Lasting Sodium-Ion Batteries on the Horizon, Pac. Nw. Nat ’l. Lab’y. (Jul. 13, 2022), https://www.pnnl.gov/news-media/longer-lasting -sodium-ion-batteries-horizon . 201 Robert Armstrong et al., The Future of Energy Storage: An Interdisciplinary MIT Study, MA SS. INST . T ECH. (Jun. 3, 2022), https://energy.mit.edu/wp-content/uploads/2022/05/The-Future -of-Energy-Storage.pdf. 202 Dirk C. Jordan et al., Photovoltaic failure and degradation modes, 25 PHOTOVOLTAICS RES. AND A PPLICATIONS 318, 324 (2017), https://doi.org/10.1002/pip.2866; Dirk C. Jordan et al., PV field reliability status—Analysis of 100 000 solar systems, 28 P HO TOVOLTAICS RESEA RCH A ND A PPLICATIONS 739, 747 (2020), https://doi.org/10.1002/pip.3262. 25 10,000 annually, a rate of 0.05%.203 Researchers have described the failure rate of residential PV inverters as “acceptable, even good,” with an inverter typically needing to be replaced only once in the lifetime of a PV system.204 False Claim #14: We do not have sufficient mineral resources for large -scale solar development. “[T]here simply aren’t enough minerals and energy on earth to make a transition to ‘renewables.’”205 A 2023 study that examined 75 emissions -reduction scenarios concluded that global reserves of critical materials are likely adequate to meet future demand for electricity generation infrastructure.206 Production rates for many critical materials will need to grow substantially, but “[g]lobal mineral reserves should adequately meet needs posed by power sector material demand.”207 The United S tates Department of the Interior has likewise concluded that “[o]ther than perhaps short term interruptions resulting from market forces or geopolitical events, it is not anticipated that there will be any long term mat erial constraints that would prevent the development of a significant amount of energy from photoelectric cells.”208 In addition, as noted previously, new commercial ventures have formed to recycle solar panels,209 potentially reducing future requirements for individual raw materials.210 Valuable materials in solar panels, including silver, copper, and crystalline silicon, are actively sought for the development of other products, including the next generation of solar panels .211 Furthermore, the 2021 Infrastructure Investment and Jobs Act, and the 20 22 Inflation Reduction Act, include provisions to identify and develop domestic sources of rare earth materials and other critical minerals required for our energy transition.212 In tandem with the rollout of these incentives, a Department of the Interior interagency working group has likewise issued more than 60 concrete recommendations for responsibly overhauling an administrative framework still largely shaped by the Mining Law of 1872.213 These recommendations include substantial research investments, permitting reform, and 203 Jordan et al., Photovoltaic failure and degradation modes, supra note 202, at 324 (2017). 204 Emiliano Bellini, Survey shows 34.3% failure rate for residential inverters over 15 years, PV MAGAZINE, Feb. 8, 2023, https://www.pv- magazine.com/2023/02/08/survey -shows-34-3 -failure -rate -for-residential-inverters-over-15-years/ (discussing Christof Bucher et al., Life Expectancy of PV Inverters and Optimizers in Residential PV Systems, BERN UNIVERSITY O F A PPLIES SCIENCES, 2022, https://www.bfh.ch/dam/jcr:5bfd5c32-f70f-4bf6-8d60 -fdab6094e164/2022_09_WCPEC-8_3DV.1.46_- _Life_Expectancy_of_PV_inverters.pdf ). 205 Not Enough Rare Metals to Scale Up Solar Power, ENERGYSKEPTIC .COM (Feb. 21, 2021), https://energyskeptic.com/2021/solar-pv-cells- using-rare -elements-unlikely-to -scale -up-enough-to-replace -fossil-fuels/. 206 Seaver Wang et al., Future demand for electricity generation materials under different climate mitigation scenarios, 7 JO ULE 309, 315 (Feb. 2023), https://www.cell.com/joule/pdfExtended/S2542 -4351(23)00001-6 . 207 Id. at 320. 208 Byproduct Mineral Commodities Used for the Production of Photovoltaic Cells, US GEO LO GIC SURVEY (2010), 2, https://pubs.usgs.gov/circ/1365/Circ1365.pd f. 209 See Drew Mays, Future of Solar Panel Recycling, INNO VATE ENERGY GRO UP, July 6, 2023, https://www.ieg.solutions/post/the-future-of- solar-panel-recycling . 210 Wang et al., Future demand for electricity generation materials under different climate mitigation scenarios, supra note 20 6 , at 320. 211 Jon Hurdle, As Millions of Solar Panels Age Out, Recyclers Hope to Cash In, Y A LE ENV ’T 360 (Feb. 28, 2023), https://e360.yale.edu/features/solar-energy-panels-recycling. 212 Oscar Serpell, Impacts of the Inflation Reduction Act on Rare Earth Elements, KLEINMAN CENTER FOR ENERGY PO LICY (Sep. 24, 2022), https://kleinmanenergy.upenn.edu/news-insight s/impacts-of-the -inflation-reduction-act-on-rare -earth-elements/. 213 Biden-Harris Administration Fundamental Principles for Domestic Mining Reform, U.S. DEP ’T OF THE INTERIOR (Feb. 22, 2022), https://www.doi.gov/sites/doi.gov/files/biden -harris-administration-fundamental-principles-for-domestic -mining -reform.pdf. 26 proactive public and Tribal engagement.214 The Department of Energy, in turn, recently announced a $150 million initiative “to advance cost effective and environmentally responsible processes ” for producing critical minerals and materials in the United States.215 214 See Recommendations to Improve Mining on Public Lands, U.S. DEP ’T OF THE INTERIOR (Sept. 2023), https://www.doi.gov/media/document/mriwg-report -final-508-pdf. 215 Biden-Harris Administration Announces $150 Million to Strengthen Domestic Critical Material Supply Chains, U.S. DEP ’T OF ENERGY (Sept. 6, 2023), https://www.energy.gov/articles/biden -harris-administration-announces-150-million-strengthen-domestic -critical- material. 27 PART B: FALSE CLAIMS ABOUT WIND ENERGY (#15–#29) 28 PART B: FALSE CLAIMS ABOUT WIND ENERGY (#15–#29) False Claim #15: Electromagnetic radiation from wind turbines poses a threat to human health. “Recently, concerns about exposure to EMF from wind turbines, and associated electrical transmissions, have been raised at public meetings and legal proceedings.”216 Multiple studies have found that the electromagnetic fields (EMFs) generated by wind turbines are lower than those generated by most common household appliances and that they easily meet rigorous international safety standards.217 For context, the average home that is not located near power lines has a background level EMF of roughly 0.2 µT. 218 However, this value varies greatly depending on proximity to certain household appliances.219 For example, from a distance of 4 feet, an electric can opener ’s EMF is 0.2 µT, but this value increases to 60 µT from a distance of 6 inches.220 A 2020 academic study found that the EMF generated by turbines are approximately 0.44 µT at a distance of 1 met er but less than 0.1 µT at a distance of 4 meters, as shown below.221 216 OHIO DEPARTMENT OF HEALTH, WIND TURBINES AND WIND FARMS: SUMMARY AND ASSESSMENTS at 8 (Apr. 12, 2022), https://odh.ohio.gov/wps/wcm/connect/gov/816f89dc-767f-4f08-8172- 71c953b8ee02/ODH+Wind+Turbines+and+Farms+Summary+Assessm ent_2022.04.pdf?MOD=AJPERES . 217 Lindsay C. McCallum et al., Measuring Electromagnetic Fields (EMF) Around Wind Turbines in Canada: Is there a Human Health Concern?, 13 ENV ’T . HEALTH 1, 9 (2014), https://doi.org/10.1186/1476 -069x-13-9; Aris Alexias et al., Extremely Low Frequency Electromagnetic Field Exposure Measurement in the Vicinity of Wind Turbines, 189 RA DIATION PROTECTION DO SIMETRY 395, 397 (2020), https://doi.org/10.1093/rpd/ncaa053 ; Nektarios Karanikas et al., Occupational health hazards and risks in the wind industry, 7 ENERGY REP . 3750, 3752 (2021), https://doi.org/10.1016/j.egyr.20 21.06.066 . 218 Radiation: Electromagnetic fields, W O RLD HEALTH O RGANIZATION (August 4, 2016), https://www.who.int/news-room/questions-and- answers/item/radiation -electromagnetic -fields. 219 Id. 220 Electromagnetic Fields (EMF), W IS . DEP’T. OF HEALTH SERV . (Sept. 14, 2022), https://www.dhs.wisco nsin.gov/air/emf.htm. 221 Alexias et al., supra note 217 , at 397. 29 Figure 10: The EMF level, measured in microtesla (µT), is shown to drop dramatically with increase in distance from source. Source: Alexias et al.222 These EMF levels are not dependent on wind speeds.223 False Claim #16: Wind turbines frequently fall over, and blades or other components easily break off, threatening human health and safety. “There are many health hazards associated with living near turbines as a result of . . . broken flying blades.”224 Turbine collapse or breakage are extremely rare, and utility-scale wind turbines are fitted with safety mechanisms to survive extreme weather conditions, such as hurricanes.225 Turbine blade breakage does not pose a significant threat to humans.226 The Department of Energy has noted that, although the risk of turbine blades becoming detached during operation “was a concern in the early years of the wind industry,” such failures “are virtually non-existent on today’s turbines due to better engineering and the use of sensors.”227 Turning to all turbine blade failures, rather than just turbine blade detachment, a 222 Id. 223 Id. at 398. 224 No Wind Turbines! Get the Facts!, SAVE PIATT COUNTY, http://www.savepiattcounty.org/ (last visited March 25, 2024). 225 How do wind turbines survive severe storms?, O FFICE OF ENERGY EFFICIENCY A ND RENEWABLE ENERGY , U.S. DEPARTMENT O F ENERGY, (June 20, 2017), https://www.energy.gov/eere/articles/how -do-wind-turbines-survive -severe -storms. 226 M. McGugan et al., Damage Tolerance and Structural Monitoring for Wind Turbine Blades. 373 P HIL. T RANSACTIONS RO YAL SOC ’Y A , 4 (2015), https://doi.org/10.1098/rsta.2014.0077 . 227 Wind Energy Projects and Safety, Dep’t of Energy, https://windexchange.energy.gov/projects/safety (last visited March 25, 2024 ). 30 2015 study found that wind turbine blades fail at a rate of approximately 0.54% per year g lobally.228 The Department of Energy has further reported that “catastrophic wind turbine failures . . . are considered rare events with fewer than 40 incidents identified in the modern turbine fleet of more than 40,000 turbines installed in the United State s as of 2014.”229 When looking at deaths per terawatt-hour of energy produced, the mortality rate from wind energy pales in comparison to the risks associated with fossil fuels. Brown coal causes 32.72 human deaths per terawatt -hour, while black coal causes 24.6 human deaths, oil causes 18.4 human deaths, natural gas causes 2.8 human deaths, and wind energy causes only 0.04 human deaths.230 Figure 11: Death rates per unit of electricity production. Source: Hannah Ritchie, Our World in Data.231 228 GCube Insurance Services, Inc. GCube report: breaking blades: global trends in wind turbine downtime events (2015), summarized in Xiao Chen, A Critical Review of Damage and Failure of Composite Wind Turbines Blade Structures, IOP CO NFERENCE SERIES: MA TERIALS SC I . A ND ENGINEERING (2020), at 4, https://iopscience.iop.org/article/10.1088/1757-899X/942/1/012001/pdf. 229 Wind Vision: A New Era for Wind Power in the United States, U.S. DEPARTMENT O F ENERGY, 105 (2015), https://www.energy.gov/sites/prod/files/WindVision_Report_final.pdf 230 Hannah Ritchie, supra note 13. 231 Id. 31 False Claim #17: Low-frequency noise from wind turbines harms human health and causes “wind turbine syndrome.” “As wind turbines spring up like mushrooms around people’s homes, Wind Turbine Syndrome has become an industrial plague.”232 Multiple studies have concluded that there is no direct causal correlation between noise from wind turbines and human health.233 Rather, studies have found that individual cases of headache or malaise in proximity to new wind turbines are most likely the r esult of personal attitudes toward and annoyance regarding the turbines.234 Accounts of “wind turbine syndrome” have received significant criticism from the scientific community, and public -health experts argue that any symptoms experienced are likely psycho somatic.235 One historical study looked at complaints filed in relation to 51 Australian wind farms from 1993 to 2012.236 Prior to 2009, complaints related to health and noise were rare, despite the fact that many small and large wind farms were already in op eration.237 However, following the coining of the phrase “wind turbine syndrome” in a self-published book that year, there was a dramatic spike in complaints.238 False Claim #18: Shadow flicker from wind turbines can trigger seizures in people with epilepsy. “Wind farms are more than just an eyesore. They can cause epileptic fits.”239 Even at its peak, shadow flicker from wind turbines typically remains far weaker than what is known to trigger seizures in people with epilepsy.240 232 Calvin Luther Martin, Your Guide to Wind Turbine Syndrome…A Roadmap to this Complicated Subject, NATIONAL W IND W ATCH (July 2010), https://docs.wind -watch.org/WTSguide.pdf. 233 Jenni Radun et al., Health Effects of Wind Turbine Noise and Road Traffic Noise on People Living Near Wind Turbines, 157 RENEWA BLE & S USTAINABLE ENERGY REV ., 10 (2022), https://doi.org/10.1016/j.rser.2021.112040; Irene van Kamp et al., Health Effects Related to Wind Turbine Sound: An Update, 18 INT ’L J. ENV ’T RSCH & PUB . HEALTH, (2021), https://doi.org/10.3390%2Fijerph18179133; Wind Energy Technologies Office, Frequently Asked Questions about Wind Energy, O FFICE O F ENERGY EFFICIENCY AND RENEWABLE ENERGY, U.S. DEPA RTMENT O F ENERGY, https://www.energy.gov/eere/wind/frequently-asked -questions-about-wind-energy#WindTurbineHealth (last visited March 25, 2024); Jesper Schmidt et al., Health Effects Related to Wind Turbine Noise Exposure: A Systematic Review, 9 P LO S ONE , (2014), https://doi.org/10.1371/journal.pone.0114183 ; NHMRC Statement: Evidence on Wind Farms and Human Health, NA TIONAL HEALTH AND MEDICAL RESEARCH CO UNCIL (NHMRC), A USTRALIAN GOVERNMENT , 1 (2015), https://www.nhmrc.gov.au/file/19045/download?token=0IAl7MHu . 234 Irene van Kamp et al., supra note 233. 235 Nathaniel Marshall et al., The Health Effects of 72 Hours of Simulated Wind Turbine Infrasound: A Double-Blind Randomized Crossover Study in Noise-Sensitive, Healthy Adults, 131 ENV ’T HEALTH PROSPECTIVE, 1 (2023 ), https://doi.org/10.1289/EHP10757. 236 Fiona Crichton et al., The Link between Health Complaints and Wind Turbines: Support for the Nocebo Expectations Hypothesis, 2 FRO NTIERS P UBL. HEALTH , 2 -3 (2014), https://doi.org/10.3389/fpubh.2014.00220. 237 Id. 238 Id. 239 Wind Turbines Can Trigger Epileptic Fits and Seizures, Say Scientists, DA ILY MA IL (Apr. 9, 2008), https://www.dailymail.co.uk/news/article -562841/Wind -turbines-trigger-epileptic -fits-seizures-say-scientists.html. 240 Wind Energy Technologies Office, Frequently Asked Questions about Wind Energy, supra note 233. 32 A 2021 academic study found that wind turbines operate between 0.5 to 1 Hz, much lower than the threshold frequency of 3 Hz typically required to cause a seizure.241 Similarly, a 2012 report prepared for the Massachusetts Department of Environmental Protection found that shadow flicker fre quencies from wind turbines are “usually in the range of 0.3–1.0 Hz, which is outside of the range of seizure thresholds according to the National Resource Council and the Epilepsy Foundation.”242 If shadow flicker were to reach 3 Hz, the probability of caus ing a seizure in a member of the photosensitive population would be approximately 1.7/100,000.243 Additional public-health studies have likewise found that wind turbines do not cause seizures.244 Wind turbines with three blades, for example, would need to rota te at a speed of 60 rpm to cause a seizure. 245 However, modern turbines typically operate at maximum speeds between 15 and 17 rpm, depending on model, well below the 60 rpm threshold.246 False Claim #19: Wind turbines are a major threat to birds, bats, and other wildlife. “The evidence is clear . . . that wind turbines present yet another threat to the lives of birds and bats.”247 According to the National Audubon Society, two-thirds of all North American bird species are at heightened risk of extinction due to climate change.248 Wildfires will destroy the nesting grounds of many species,249 while extreme heatwaves will render their typical habitats uninhabitable.250 For example, the American Goldfinch is projected to lose 65% of its range under a scenario of 3 degrees Celsius global warming, while the Allen’s Hummingbird is projected to lose 64% of its range. 251 By contrast, wind power is a relatively minor source of mortality for birds. The U.S. Fish and Wildlife Service has estimated that, throughout the United S tates, cats kill an average of 2.4 billion birds per year, and collisions with building glass kill an average of 599 million birds, while wind turbines kill an average of 234,000 birds per year.252 These mortality figures for wind impacts rely on studies dating back to 2013 or 2014 and may be outdated due to the fact that there were fewer wind 241 Nektarios Karanikas et al., Occupational Health Hazards and Risks in the Wind Industry, 7 ENERGY REP . 3750, 3752-3753 (2021), https://doi.org/10.1016/j.egyr.2021.06.066. 242 Wind Turbine Health Impact Study: Report of Independent Expert Panel, MA SSACHUSETTS DEPARTMENT O F ENVIRONMENTAL PRO TECTION, 36 (2012), https://www.mass.gov/doc/wind -turbine -health-impact -study-report-of-independent-expert-panel/download. 243 Id. 244 Oleksandr Zaporozhets et al., Environment Impact Assessment for New Wind Farm Developments in Ukraine, in 2022 IEEE 8TH INTERNATIONAL CO NFERENCE O N ENERGY SMART SYSTEMS 386, 387 (Institute of Electrical and Electronics Engineers, 2022), https://doi.org/10.1109/ESS57819.2022.9969323 ; Loren Knopper et al., Wind Turbines and Human Health, 2 FRO NTIERS P UBL. HEALTH , 14 (2014), http s://doi.org/10.3389/fpubh.2014.00063 . 245 Knopper et al., supra note 244 at 14. 246 Id. 247 FAQ: Impact on Wildlife, NA TIO NAL W IND WATCH , https://www.wind -watch.org/faq -wildlife.php (last visited March 25, 2024). 248 Audubon Society, Survival by Degrees: 389 Bird Species on the Brink, NA T ’L. A UDUBON SOC ’Y ., https://www.audubon.org/climate/survivalbydegrees (last visited March 25, 2024). 249 Audubon Society, How Wildfires Affect Birds, NA T ’L. A UDUBON SOC ’Y., https://www.audubon.org/news/how -wildfires-affect -birds (last visited March 25, 2024). 250 Audubon Society, Survival by Degrees: 389 Bird Species on the Brink, supra note 248. 251 Id. 252 Threats to Birds, U.S. FISH & W ILDLIFE SERVICE, https://www.fws.gov/library/collections/threats-birds (last visited March 25, 2024). 33 turbines 10 years ago than there are today.253 However, research has found that wind power causes far fewer bird deaths than fossil fuels per unit of energy output, a metric that is not sensitive to the total number of wind turbines installed. While fossil fuels cause 5.2 avian fatalities per GWh, wind turbines cause only 0.3–0.4 avian fatalities per GWh.254 Figure 12: Leading anthropogenic causes of deaths to birds in the United States. Source: Boston University Institute for Global Sustainability.255 In addition, actionable steps can be taken to reduce bird and bat fatalities from wind turbines. To provide one example, most bird deaths occur when turbines are sited near nesting places. Proper siting of turbines that takes into account where birds nest, feed and mate, as well as where they stop when migrating, has proved successful at reducing fatalities.256 To provide a second example, the wind turbine components that pose the greatest risk to birds are the blades and tower.257 The relatively simple action of painting the tower black has been shown to reduce deaths by roughly 48%, while painting one of the blades black has reduced deaths by 70%. Other successful methods promo ting the safe passage of birds and 253 Do wind turbines kill birds? MIT CLIMA TE PORTAL (Aug. 17, 2023), https://climate.mit.edu/ask-mit/do-wind -turbines-kill-birds (noting that the cit ed studies were published in 2013 and 2014, and the numbers are likely to be higher today because more wind farms have been built since then). 254 Benjamin K. Sovacool, The avian benefits of wind energy: A 2009 update, 49 RENEWABLE ENERGY 19, 19 (2013), https://doi.org/10.1016/j.renene.2012.01.074 . The Sovacool study explains that fossil fuels cause avian fatalities upstream during coal mining, through collision and electrocution with operating pla nt equipment, and indirectly through acid rain, mercury pollution, and climate change. Id. at 21. The study is based on operating performance in the United States and Europe. Id. at 19. 255 Cutler Cleveland et al., Is Wind Energy a Major Threat to Birds?, V I SUALIZING ENERGY, Oct. 9, 2023, https://visualizingenergy.org/is- wind-energy-a-major-threat -to-birds/. 256 Sovacool, supra note 254 at 19-20. 257 Id. at 23. 34 bats include slowing or stopping turbine motors when vulnerable species are present, in order to reduce the likelihood of collisions.258 Deployment of this method in Wyoming has contributed to an 80% decline in eagle fatali ties.259 New strategies under development include the use of artificial intelligence and surveillance to monitor nearby bird and bat activity, which can help inform when to slow or stop turbine motors. One preventative strategy involves producing visual and auditory outputs that deter vulnerable bird and bat species from flying near the turbines altogether.260 Overall, though it remains difficult to eliminate the risk of collisions entirely, wind power can ultimately help to protect bird and bat populations by displacing fossil fuels and mitigating climate change impacts.261 False Claim #20: Offshore wind development is harmful to whales and other marine life.262 “Record numbers of endangered whales [are] being killed by windfarms off America’s East Coast”263 When properly sited, offshore wind farms need not pose a serious risk of harm to whales or other marine life. During installation, the impact from construction noise can be mitigated by implementing seasonal restrictions on certain activities that coincide with w hale migration. Once operational, wind turbines generate far less low -frequency sound than ships do, and there is no evidence that noise from turbines causes negative impacts to marine species populations.264 There has been considerable attention to how offs hore wind development, including noise from pile -driving during construction, affects the critically endangered North Atlantic right whale, which has a total population of roughly 360.265 But the main causes of mortality for right whales are vessel strikes (75% of anthropogenic deaths) and entanglements in 258 U.S. Dep ’t. of Energy Wind Energy Technologies Office, Environmental Impacts and Siting of Wind Projects, U.S. DEP ’T . ENERGY: O FFICE OF ENERGY EFFICIENCY AND RENEWABLE ENERGY, https://www.energy.gov/eere/wind/environmental-impacts-and-siting-wind-projects (last visited March 25, 2024). 259 Christopher J.W. McClure et al., Eagle fatalities are reduced by automated curtailment of wind turbines, 58 BRITISH ECOLO GICAL SOC ’Y . 446, 450 -451 (2021), https://doi.org/10.1111/1365 -2664.13831 . 260 Chapter 4: Minimizing Collision Risk to Wildlife During Operations: Minimization: Deterrence, RENEWABLE ENERGY W ILDLIFE INST . (Dec. 27, 2022), https://rewi.org/guide/chapters/04-minimizing -collision -risk-to-wildlife -during-operations/minimization -deterrence/. 261 Audubon Society, Wind Power and Birds, NA T ’L. A UDUBON SOC ’Y. (Jul. 21, 2020), https://www.audubon.org/news/wind -power-and - birds. 262 While outside the scope of this report, it bears noting that journalists have uncovered financial connections between fossil fuel interest groups and certain groups alleging that offshore wind development leads to considerable negative impacts on whales. See Marvell, supra note 11. 263 Mike Parker, Record Numbers of Endangered Whales Being Killed by Windfarms Off America's East Coast, EXPRESS , (Sept 2, 2023) https://www.express.co.uk/news/us/1808681/endan gered-whales-killed-east -coast -windfarms (capitalization edited to sentence case). 264 Jakob Tougaard et al., How Loud is the Underwater Noise from Operating Offshore Wind Turbines? 148 J. A COUSTICAL SO C . O F A MER . 2885, 2888 (2020), https://doi.org/10.1121/10.0002453. 265 North Atlantic Right Whale, NOAA FISHERIES , https://www.fisheries.noaa.gov/species/north -atlantic -right -whale (last visited March 25, 2024). 35 fishing gear —not anything related to offshore wind development.266 Critically, the National Oceanic and Atmospheric Administration (NOAA) has also found no link between offshore wind surveys or development on whale deaths.267 Moreover, any impacts to the North Atlantic right whale can be avoided or greatly minimized through proper planning. For example, in 2019, the developer of the 800 -MW Vineyard Wind project entered into an agreement with three environmental organizations, which established seasonal restrictions on pile -driving during construction (to avoid excessive noise when right whales are present), as well as strict limits on vessel s peeds during the operational phase (to avoid vessel strikes), among other measures.268 In the final environmental impact statement for the project, the U.S. Bureau of Ocean Energy Management (BOEM) found that, “[g]iven the implementation of Project-specific measures, BOEM anticipates that vessel strikes as a result of [the project] alone are highly unlikely and that impacts on marine mammal individuals . . . would be expected to be minor; as such, no population-level impacts would be expected.”269 BOEM also found that project installation would be unlikely to cause noise -related impacts to right whales, due to the time of year during which construction activities would take place.270 Offshore wind development can have benefits for other marine species. For exampl e, the base of an offshore wind turbine may function as an artificial reef, creating new habitats for native fish species.271 By contrast, offshore oil and gas drilling routinely harms marine life, while posing a persistent risk of catastrophic outcomes.272 S onar used for offshore oil and gas exploration emits much stronger pulses of sound than sonar used for wind farm surveying.273 The 2010 Deepwater Horizon oil spill killed millions of marine animals, including as many as 800,000 birds.274 More broadly, carbon dioxide emissions from fossil fuel use are making the ocean increasingly acidic, which inhibits shellfish and corals from developing and maintaining calcium carbonate shells and exoskeletons.275 Finally, climate change is expected to have “long-term, high-consequence impacts ” on whales and other marine mammals, including “increased energetic costs associated with altered migration routes, reduction of suitable breeding and/or foraging habitat, and reduced individual fitness, particularly juveniles.”276 266 Id.; V INEYARD WIND 1 OFFSHORE W IND PROJECT FINAL ENVIRONMENTAL IMPACT STATEMENT Vol. I, March 2023, at 3 -95, https://www.boem.gov/sites/default/files/documents/renewable -energy/state -activities/Vineyard -Wind-1-FEIS-Volume -1.pdf. 267 Frequent Questions – Offshore Wind and Whales, NOAA, https://www.fisheries.noaa.gov/new -england-mid-atlantic/marine -life - distress/frequent -questions-offshore -wind -and -whales (last visited March 25, 2024). 268 Vineyard Wind – NGO Agreement, Jan. 22, 2019, https://www.nrdc.org/sites/default/files/vineyard -wind-whales-agreement- 20190122.pdf. 269 Vineyard Wind Final EIS, supra note 266 , at 3-95. 270 Id. at 3 -91. 271 Steven Degraer et al., Offshore Wind Farm Artificial Reefs Affect Ecosystem Structure and Functioning: A Synthesis, 33 O C EANOGRAPHY 48, 49 (2020), https://doi.org/10.5670/oceanog.2020.405; Offshore Renewable Energy Improves Habitat, Increases Fish, RHO DE ISLA ND SEA GRANT (July 26, 2020), https://seagrant.gso.uri.edu/offshore -renewable -energy-improves-habitat -increases-fish/. 272 Marvell, supra note 11. 273 Id. 274 Martha Harbison, More Than One Million Birds Died During the Deepwater Horizon Disaster. Audubon, NA TIONAL A UDUBON SOCIETY (May 6, 2014), https://www.audubon.org/news/more -one-million-birds-died-during-deepwater-horizon-disaster. 275 National Ocean Service, What is Ocean Acidification?, NA TIONAL OC EANIC AND A TMOSPHERIC A DMINISTRATION, https://oceanservice.noaa.gov/facts/acidification.html (last visited March 25, 2024). 276 Vineyard Wind Final EIS, supra note 266, at 3-85. 36 False Claim #21: Producing and transporting wind turbine components releases more carbon dioxide than burning fossil fuels. “[W]indmills are perhaps the worst boondoggle . . . because they require much more high quality energy to manufacture, install, maintain, and back up than [they] will ever produce.”277 On a lifecycle basis, wind power emits far less carbon dioxide than fossil fuels per kilowatt -hour of energy generated.278 According to the National Renewable Energy Laboratory (NREL), the average lifecycle emissions of offshore and onshore wind turbines is 13 g CO2-eq/KWh.279 Lifecycle emissions for fossil fuels are much higher, with natural gas and coal releasing 486 g CO2-eq/KWh and 1001 g CO2-eq/KWh emissions, respectively.280 In other words, the average lifecycle emissions of wind energy is roughly 1/77th that of coal.281 Manufacturing accounts for only a small percentage (2.41%) of the lifecycle emissions for wind power turbin es.282 Most turbine emissions come from transportation, which accounts for over 90% of emissions for both offshore and onshore operations.283 Once operational, wind turbines create clean, emissions -free energy that offsets the carbon dioxide emissions associated with production and transportation.284 False Claim #22: Wind turbines will generate an unsustainable amount of waste. “This clean, green energy is not so clean and not so green . . . [i]t’s just more waste going in our landfills.”285 Roughly 80%-85% of modern wind turbine materials, including the steel turbine tower, can be recycled.286 Turbine blades, 277 Developer Claims: Wind Energy Efficiency, INTERSTATE INFORMED CITIZENS COALITION, https://iiccusa.org/developer-claims/developer- claims-wind -energy-inefficiency/ (last visited March 25, 2024). 278 Stacey L. Dolan & Garvin A. Heath, Life Cycle Greenhouse Gas Emissions of Utility-Scale Wind Power, 16 J. INDUS. ECOLOGY , S136- S154 (2012), https://doi.org/10.1111/j.1530-9290.2012.00464.x; Shifang Wang et al., Life-Cycle Green-House Gas Emissions of Onshore and Offshore Wind Turbines, 210 J. CLEA NER PROD . 804, 807 -808 (2019), https://doi.org/10.1016/j.jclepro.2018.11.031 ; Nat ’l Renewable Energy Laboratory, supra note 66 , at 3. 279 Nat ’l Renewable Energy Laboratory, supra note 66, at 3. 280 Id. 281 Id. 282 Wang et al., Life-Cycle Green-House Gas Emissions of Onshore and Offshore Wind Turbines, supra note 278 , at 807. 283 Id. at 804. 284 Sara Peach, What's the Carbon Footprint of a Wind Turbine?, YALE CLIMATE CONNECTIONS (June 30, 2021), https://yaleclimateconnections.org/2021/06/whats-the -carbon-footprint -of-a-wind-turbine/. 285 Donnelle Eller, Iowa’s betting big on wind energy, but it’s creating a problem: What happens to the blades once they’re no longer useful?, DES MO INES REGISTER (Nov. 6, 2019), https://www.desmoinesregister.com/story/money/agriculture/2019/11/06/few -recycling- options-wind -turbine -blades-head-iowa-landfills/3942480002/. 286 Muhammad Khalid et al., Recycling of Wind Turbine Blades Through Modern Recycling Technologies: A Road to Zero Waste, 44 RENEWA BLE ENERGY FOCUS 373, 375 (2023), https://doi.org/10.1016/j.ref.2023.02.001 ; Alejandro de la Garza, Time, Sept. 25, 2023, https://time.com/6316828/recycling -old-wind-turbine -blades/. 37 which contain fiberglass composite mater ials are more difficult to recycle, but new techniques are being explored.287 A recent breakthrough supported by the Department of Energy, for example, enabled all turbine components to be recycled.288 Private companies have begun developing turbine blade recycling plants to ensure that wind turbine production is entirely circular.289 One company’s analysis found that total cumulative waste from decommissioned turbines blades could exceed 14 million tons by the early 2040s.290 This is not insignificant. However, Nature Physics has projected that fossil fuel -based power generation is expected to produce roughly 45,550 million metric tons of coal ash alone by 2050, along with 249 million metric tons of oily sludge.291 These figures far exceed the anticipated waste from wind turbine blades, and both coal ash and oily sludge are known to be toxic.292 For context, roughly 600 million tons of construction and demolition debris were generated in the United States in 2018 across all s ectors.293 False Claim #23: Wind turbines take up too much land. “The wind’s low power density means massive materials and land/sea area requirements.”294 Princeton University’s 2021 report, Net-Zero America, concluded that the wind turbines needed for the United States to reach net-zero emissions by 2050 will have a direct footprint (i.e. the area covered by turbine bases and access roads) of between 603,678 and 2,479,208 acres.295 This is notably less than the 4.4 million acres currently used for natural gas extraction and the 3.5 million acres for oil extraction.296 Moreover, depending on the location and the technology used, wind turbines can also require less land per kilowatt -hour generated than fossil fuels.297 A report by the United Nations Economic Commission for Europe (UNECE) found that total land occupation (agriculture and urban) for wind power ranged from 0.3–1 m2/KWh for 2022.298 The exact value depends 287 Jonas Jensen et al., Wind Turbine Blade Recycling: Experiences, Challenges and Possibilities in a Circular Economy, 97 RENEWABLE & SUSTAINABLE ENERGY REV .165, 171 (2018), https://doi.org/10.1016/j.rser.2018.08.041 . 288 Wind Energy Technologies Office, Carbon Rivers Makes Wind Turbine Blade Recycling and Upcycling a Reality with Support From DOE, O FFICE O F ENERGY EFFICIENCY AND RENEWABLE ENERGY , U.S. DEPARTMENT OF ENERGY (October 17, 2022) https://www.energy.gov/eere/wind/articles/carbon -rivers-makes-wind -turbine -blade -recycling-and-upcycling -reality-support . 289 Dave Downey, Here’s How One Iowa Company is Taking Wind Turbine Blades Out of the Landfill, W E A RE IO WA (January 24, 2023), https://www.weareiowa.com/article/tech/science/environment/recycling -wind-turbine -blades-regen-fiber-travero-alliant -energy- fiberglass-iowa/524 -88fe0610-cede-4a56 -a9a3 -01a36319927c. 290 Madeline Ruid, Recycling: An Imperative for the Renewable Energy Landscape, GLO BAL X, Nov. 14, 2023, https://www.globalxetfs.com/recycling -an-imperative -for-the-renewable -energy-landscape/. 291 Mirletz et al., supra note 55, at 1376. 292 Id. 293 Construction and Demolition Debris: Material-Specific Data, United States Envt’l Protection Agency, https://www.epa.gov/facts-and- figures-about -materials-waste -and-recycling/construction -and-demolition -debris-material (last visited Apr. 1, 2024). 294 Home, NA T ’L W IND W ATCH, https://www.wind -watch.org/ (last visit ed March 25 , 2024). 295 Eric Larson et al., supra note 104 , at 245. The report predicts that the “total wind farm area” will be significantly larger, but these numbers include the entire visual footprint of wind farms. 296 Dave Merrill, The U.S. Will Need a Lot More Land for a Zero-Carbon Economy, BLO OMBERG (June 3, 2021), https://www.bloomberg.com/graphics/2021-energy-land -use -economy/. 297Carbon Neutrality in the UNECE Region: Integrated Life-cycle Assessment of Electricity Sources, UNITED NA TIONS ECONOMIC CO MMISSION FO R EUROPE (UNECE), United Nations, 70 (2022), https://unece.org/sites/default/files/2022-08/LCA_0708_correction.pdf. 298 Id. 38 on the type of wind tower, onshore or offshore siting, and the particular location of the turbine.299 By comparison, natural gas values ranged from 0.6–3.3 m2/KWh, and coal values from 7.2–23.8 m2/KWh.300 The UNECE report notes that these calculations do not include carbon capture and storage (CCS), which, if implemented, would decrease emissions but increase land use.301 Wind energy also uses far less land than biomass. Dedicated biomass consumes an average of 160,000 hectares of land per terawatt-hour per year.302 By contrast, the land-use intensity of wind energy is only 170 hectares per terawatt-hour per year when looking at the direct footprint of wind or 15,000 hectares per terawatt-hour per year when including space between turbines.303 Figure 13: Average land-use intensity of electricity, measured in hectares per terawatt- hour per year. Source: U.S. Global Change Research Program (visualizing data from Jessica Lovering et al.).304 Fossil fuel generation also has more harmful and enduring impacts on the land that it uses. Spills frequently occur as a result of the extraction, transportation, and distribution of o il and natural gas, causing soil and water damage. A 2017 study found that between 2% and 16% of unconventional oil and gas wells reported a spill each year, with more spills in some 299 Id. 300 Id. 301 Id. 302 Jessica Lovering et al., supra note 120 , at 8. 303 Id. 304 U.S. GLO BA L CHANGE RESEARCH PROGRAM, supra note 121 at 32 -29 (visualizing data from Jessica Lovering et al., supra note 120 at 8). 39 states than others.305 Reclamation is difficult in areas surrounding extraction sites because of frequent leakage.306 The land involved often suffers long-term damage and can only be used for limited purposes.307 Moreover, abandoned coal mines and orphaned oil and gas wells can continue to threaten public health by contaminating groundwater, emitting methane and other noxious gases, and, in the case of abandoned coal strip mines, even result in continuing risk from falling boulders.308 There are currently over 130,000 documented orphaned oil and gas wells in the United States,309 and nearly 40% of Kentucky’s active coal mines are “functionally abandoned.”310 By contrast, utility-scale wind farms can be incorporated into America ’s pasture and cropland with significantly less disturbance. Wind farms directly occupy relatively small a mounts of land. According to the Department of Energy, powering 35% of our national electric grid through wind turbines would require 3,200 km 2 (790,000 acres) of land, a small fraction of the United States’ 2.3 billion acres of land.311 Furthermore, there is ample space for additional land uses within wind farms: the National Renewable Energy Laboratory estimates that about 98% of the area in a wind farm is available for agriculture or other uses.312 Moreover, plant and animal species can safely grow and roam directly up to a turbine ’s base. This can help native species to flourish, as well as allowing farmers to continue cultivating crops and grazing animals after wind projects are installed.313 And reclamation of wind (and solar) energy sites can begin as soon as plants begin operation, because wind and solar require only small amount of soil disturbance compared to other energy sources.314 Finally, climate change produced by burning fossil fuels directly harms forests, oceans, crops, and wildlife, including by causing wildfires, algal blooms, droughts, and extreme weather events that mar the visual landscape.315 Wind energy, in contrast, further protects local landscapes by mitigating climate impacts. 305 Lauren A. Patterson, Unconventional Oil and Gas Spills: Risks, Mitigation Priorities, and State Reporting Requirements, 51 ENVT’L SC IENCE & T ECHNOLOGY 2563, 2563 (2017), https://pubs.acs.org/doi/full/10.1021/acs.est.6b05749 . 306 Brady Allred et al., Ecosystem Services Lost to Oil and Gas in North America, 348 SC I 401, (2015), https://www.science.org/doi/full/10.1126/science.aaa4785 . 307 Id. 308 See Orphaned Wells, U.S. DEP ’T O F INTERIOR, https://www.doi.gov/orphanedwells (last visited Apr. 1, 2024); James Bruggers, Congressional Office Agrees to Investigate ‘Zombie’ Coal Mines, INSIDE CLIMATE NEWS , Jan. 12, 2024, https://insideclimaten ews.org/news/12012024/kentucky-zombie -coal-mines/. 309 Federal Orphaned Well Program, U.S. BUREAU O F LAND MA NAGEMENT, https://www.blm.gov/programs/energy-and-minerals/oil-and - gas/federal-orphaned -well-program (last visited Apr. 1, 2024). 310 Bruggers, supra note 308. 311 Wind Vision: A New Era for Wind Power in the United States, supra note 229, at 139; Land and Natural Resources, EC O NOMIC RESEA RCH SERVICE, U.S. DEP ’T OF A GRICULTURE, https://www.ers.usda.gov/data-products/ag-and-food-statistics-charting -the - essentials/land -and-natural-resources/?topicId=a7a658d4-f209-4641 -9172-066ca0896abe (last visited March 25, 2024). 312 Paul Denholm et al., Examining Supply-Side Options to Achieve 100% Clean Electricity by 2035 at 51, NAT ’L RENEWABLE ENERGY LA BO RATORY, 2022, https://www.nrel.gov/docs/fy22osti/81644.pdf . 313 Molly Bergen, How Wind Turbines are Providing a Safety Net for Rural Farmers, World Resources Institute (October 13, 2020), https://www.wri.org/insights/how -wind-turbines-are -providing-safety-net-rural-farmers. 314 Amalesh Dhar, Perspectives on environmental impacts and a land reclamation strategy for solar and wind energy systems, 718 Science of the Total Environment 134602, 11 (2020), https://www.sciencedirect.com/science/article/pii/S0048969719345930 . 315 Savannah Bertrand, Fact Sheet: Climate, Environmental, and Health Impacts of Fossil Fuels, Environmental and Energy Study Institute (December 17, 2021), https://www.eesi.org/papers/view/fact-sheet-climate -environmental-and-health-impacts-of-fossil-fuels- 2021. 40 False Claim #24: Wind power, particularly offshore wind power , is too expensive. “[W]ind farms . . . cannot produce electricity competitively and require massive government subsidies for both installation and subsequent operation. Rate payers are hit [with] a double whammy, higher electric rates and higher taxes to pay the subsidies.”316 In the United States, onshore wind has the lowest unsubsidized levelized cost of energy (LCOE) of all utility -scale energy sources. Onshore wind’s mean unsubsidized LCOE is $50/MWh, substantially lower than the mean unsubsidized LCOE of gas combined cycle ($70/MWh), coal ($117/MWh), and gas peaking ($168/MWh).317 And, as the figure below from Lazard shows, although offshore wind power is more expensive than gas combined cycle when subsidies are not taken into account, the unsubsidized mean LCOE for offshore wind ($106) is still lower than that of gas peaking and coal.318 Figure 14: The range of unsubsidized LCOE for utility-scale energy sources across various cost of capital scenarios, highlighting the mean unsubsidized LCOE as of April 2023. “IRR” stands for “internal rate of return” and “WACC” stands for “weighted average cost of capital.” Source: Lazard.319 316 Problems with Offshore Wind Farms Not Worth It, NATIONAL W IN D WATCH , https://www.wind -watch.org/news/2011/04/21/problems- with-offshore -wind-farms-not -worth -it/ (last visited March 25, 2024). 317 LA ZA RD, supra note 166, at 2, 6, 9. 318 Id. 319 Id. Reproduced with permission. 41 In addition, the LCOE for offshore wind power has declined substantially over the past decade .320 The Department of Energy’s most recent offshore wind market report estimates that the LCOE for a fixed -bottom offshore wind project beginning operations in 2022 would have been roughly 50% lower than one beginning operations in 2014, despite a 6% increase in costs compared to a 2021 cost estimate.321 Researchers further project that the average LCOE for offshore wind energy will fall to $63/MWh by 2030.322 Due in large part to this dramatic price decline, deployment of offshore wind has surged in recent years , both domestically and globally. By the end of 2022, global capacity had reached 59,009 MW, up roughly 18% from 2021.323 As of the end of May 2023, the pipeline of U.S. offshore wind projects in development and operation was estimated to represent 52,687 MW of wind energy capacity, a 15% growth compared to May 2022.324 It bears noting, however, that several offshore wind projects have been removed from the U.S. offshore wind pipeline since May 2023 as a result of project cancellation.325 This includes Ocean Wind I and II, canceled in October 2023, which were anticipated to deliver over 2,200 MW of wind energy capacity.326 Once operational, offshore wind turbines generate more energy and greater revenues than onshore wind farms, due to higher and steadier wind speeds; they also have the advantage of generating energy closer to many U.S. coastal population centers, thus reducing the need for long-distance transmission.327 According to the European Wind Energy Association, while the average onshore wind turbine generates enough energy to power 1,500 homes, the average offshore turbine can power more than 3,300 homes.328 Moreover, when factoring in costs associated with climate change and human health impacts, offshore wind becomes even less expensive compared to many fossil fuel energy sources.329 320 See Walter Musial et al., Offshore Wind Market Report: 2023 Edition, O FFICE OF ENERGY EFFICIENCY & RENEWA BLE ENERGY, U.S. DEPA RTMENT O F ENERGY, at xiii, 81-83 (2023), https://www.energy.gov/sites/default/files/2023 -09/doe -offshore-wind-market-report-2023- edition.pdf; see also Ryan Wiser et al., Expert Elicitation Survey Predicts 37% to 49% Declines in Wind Energy Costs by 2050, 6 NA TURE ENERGY , 555, 557 (2021), https://doi.org/10.1038/s41560 -021-00810 -z. 321 Musial et al., supra note 320, at xiii, 81 -83. 322 Id. 323 Id. at xii; Walter Musial et al., Offshore Wind Market Report: 2022 Edition, OFFICE OF ENERGY EFFICIENCY & RENEWABLE ENERGY, U.S. DEPA RTMENT O F ENERGY, ix (2022), https://www.energy.gov/sites/default/files/2022-09/offshore -wind -market -report-2022 -v2.pdf. 324 Musial et al, supra note 323, at viii. 325 See Associated Press, In a setback for the wind industry, 2 large offshore projects are canceled in N.J., NPR, Nov. 1, 2023, https://www.npr.org/2023/11/01/1209986572/offshore -wind -energy-new-jersey-orsted; Heather Richards, Offshore wind faces more financial turbulence in 2024, ENERGYWIRE, Jan. 8, 2024, https://www.eenews.net/articles/offshore -wind-faces-more -financial- turbulence -in-2024/. 326 Ocean Wind 2, https://oceanwindtwo.com/ (last visited March 25, 2024). 327 What are the Advantages and Disadvantages of Offshore Wind Farms?, A MERICAN GEOSCIENCE INSTITUTE, https://www.americangeosciences.org/critical-issues/faq/what -are -advantages-and -disadvantages-offshore-wind-farms (last visited March 25, 2024); Adrijana Buljan, Offshore Wind Costs in 2050 Could be Lower than Previously Expected, OFFSHOREWIND.BIZ (Apr. 19, 2021), https://www.offshorewind.biz/2021/04/19/offshore -wind-costs-in-2050-could -be-lower-than-previously-expected/; Laura Small et al., Fact Sheet | Offshore Wind: Can the United States Catch Up With Europe?, ENVIRONMENTAL & ENERGY STUDY INSTITUTE, 3 (January 4, 2016), https://www.eesi.org/papers/view/factsheet -offshore -wind -2016 ; Wind Turbines: the Bigger, the Better, UNITED STATES DEP’T O F ENERGY, Aug. 24, 2023, https://www.energy.gov/eere/articles/wind -turbines-bigger-better. 328 Laura Small et al., supra note 327 , at 3 . 329Id. at 2; Paul R. Epstein et al., Full Cost Accounting for the Life Cycle of Coal, 1219 EC OLOGICAL EC ON. REV ., A NNALS O F THE N.Y. ACADEMY O F SC IENCES , Apr. 2011, 73 -98 (Robert Costanza, Karin Limburg & Ida Kubiszewski eds., 2011), https://pubmed.ncbi.nlm.nih.gov/21332493/. 42 False Claim #25: Wind turbines are bad for farmers and rural communities. “The construction of industrial wind turbines affects aquifers, water flow, tile lines, soil erosion, soil compaction, air pressure and current. In essence, it is destruction of the best soil in the world, the farmland that the generations before us were proud of and left for us to feed the world with.”330 Wind power offers farmers the opportunity to earn additional income from leasing out their land, while also growing crops or grazing livestock.331 As a result, many farmers view wind turbines as beneficial for their farmland and the local community.332 And wind farms leave ample space for continued agricultural use: the National Renewable Energy Laboratory estimates that about 98% of the area in a typical wind farm is available for agriculture or other uses.333 The New York Farm Bureau has stated that “[w]ind turbines are geared towards continued farming activities, because wind turbines are typically spaced one acre apart.”334 Moreover, “[l]ivestock are unaffected by the presence of wind turbines and will graze r ight up to the base of wind turbines.”335 The additional income from lease payments can help farmers keep their land in production.336 One 2017 University of Michigan study found that farmers with turbines tend to invest twice as much in their farms as farmers without wind turbines.337 In addition, property tax payments from utility-scale wind projects provide revenue to rural communities for investing in schools, roads, and bridges.338 Farmers with turbines also appear more confident that they will continue to own their farms at the time of death. In the University of Michigan study, survey results showed 80% of those with turbines had a plan of succession for their farm, while only 62% of those without a turbine had a succession plan.339 The researchers concluded that this difference was likely due to added income the wind turbine provided.340 330 SA V E PIAT T CO UNTY, supra note 224. 331 See Wind Energy’s Economic Impacts to Communities Energy, OFFICE O F ENERGY EFFICIENCY AND RENEWABLE ENERGY , U.S. DEPARTMENT O F ENERGY , https://windexchange.energy.gov/projects/economic -impacts (last visited March 26, 2024); Elizabeth Weise, Wind energy gives American farmers a new crop to sell in tough times, USA TODAY , Feb. 16, 2020 (updated Feb. 20, 2020), https://www.usatoday.com/story/news/nation/2020/02/16/wind -energy-can-help-american-farmers-earn-money-avoid- b ankruptcy/4695670002/. 332 Kirsty Holstead et al., Discourses of On-Farm Wind Energy Generation in the UK Farming Press, 19 J. ENV ’T . POL’Y & PLA N . 391, 399 (2017), https://doi.org/10.1080/15239 08X.2016.1224157; Sarah Mills, Wind Energy and Rural Community Sustainability, in HA NDBOOK SUSTAINABILITY & SO C . SCI. RSCH . 215, 219 -221 (Walter Leal Filho, Robert W. Marans & John Callewaert eds., 2018), https://doi.org/10.1007/978 -3 -319 -67122 -2_12. 333 Paul Denholm et al., supra note 312 at 51. 334 NEW Y O RK FA RM BUREAU, LEASING Y OUR FARMLA ND FOR W IND & SO LA R ENERGY DEVELOPMENT : A BEGINNER’S GUIDE FOR FARMERS at 3 (2014), https://www.nyfb.org/application/files/2014/9780/6349/file_y349d211hx.pdf ; see also id. (“Wind turbine installations are compatible with livestock grazing and growing c rops.”). 335 Id.; see also id. (“Wind turbines are sturdy enough to withstand cattle using them as rubbing posts or for shade.”). 336 Wind Energy’s Economic Impacts to Communities, supra note 331; Kirsty Holstead et al., Discourses of On-Farm Wind Energy Generation in the UK Farming Press, 19 J. ENV ’T. POL’Y & PLA N . 391, 399 (2017), https://doi.org/10.1080/1523908X.2016.1224157 ; Mills, supra note 324, at 219-221. 337 Mills, supra note 332, at 219-221. 338 Wind energy’s economic impacts to communities, supra note 331 . 339 Mills, supra note 332, at 215, 219. 340 Id. at 215, 219 -220. 43 Wind farms can likewise contribute to agricultural productivity. A 2019 study of Gobi Desert wind farms, from China ’s Zhejiang University, found that turbine proximity made loca l vegetation “more metabolically efficient, with higher community coverage, density, and AGB [aboveground biomass].”341 Recent research from Iowa State ’s Agronomy department posits that related benefits to agricultural yields might stem from increased photos ynthesis capacity as turbines draw additional carbon dioxide out of the soil.342 Further studies suggest that wind turbines may even increase crop yields on neighboring farms, by minimizing harmful temperature extremes in the surrounding area.343 Moreover, while recognizing that wind farm installation can contribute to short-term soil degradation, a 2020 analysis from Brazil ’s Universidade Federal do Ceará concluded that these installations produce impacts less intense than those “caused by agricultural use and rainfall in the same period” and that local farmers found it possible “to reconcile agriculture and wind power generation without major repercussions on rural lots.”344 False Claim #26: Wind energy is bad for U.S. jobs. “Subsidised wind and solar destroy far more jobs than they ever ‘create’”345 Wind power is a fast-growing industry, creating many U.S. jobs. In 2021, wind energy production employed roughly 120,000 U.S. workers, creating roughly 5,400 new jobs (up 4.7%) since 2019.346 The Department of Energy s uggests that this sector could employ as many as 600,000 U.S. workers by 2050.347 As noted previously, the United States ’ Fifth National Climate Assessment predicts that there will be nearly 3,000,000 new solar, wind, and transmission -related jobs by 2050 in a high electrification scenario and 6,000,000 new jobs in a 100% renewable scenario, with less than 1,000,000 fossil fuel -related jobs lost.348 341 Kang Xu et al., Positive Ecological Effects of Wind Farms on Vegetation in China’s Gobi Desert, SC I . REPO RTS 9, 6341 (2019) https://www.nature.com/articles/s41598-019-42569-0. 342 Ed Adcock, Iowa State University Research Finds Wind Farms Positively Impact Crops, IO WA STA TE UNIVERSITY EXTENSION AND OUTREAC H, Mar. 5, 2018, https://www.extension.iastate.edu/news/iowa-state-university-research -finds-wind-farms-positively-impact -crops. 343 Daniel T. Kaffine, Microclimate effects of wind farms on local crop yields, 96 J. ENV ’T . ECON. MGMT. 159, 159-160 (2019), https://doi.org/10.1016/j.jeem.2019.06.001. 344 Manoel Fortunato Sobrinho Júnior et al., Soil Use and Occupation of Wind Farm Agricultural Areas, 19 MERC ATOR - REV ISTA DE GEOGRAFIA DA UFC, 1, 3, (2020), https://www.redalyc.org/journal/2736/273664287012/273664287012.pdf . 345 Renewable Energy Job Myth: Subsidised Wind and Solar Destroy Far More Jobs Than They Ever “Create,” STOP T HESE THINGS, May 11, 2020, https://stopthesethings.com/2020/05/11/renewable -energy-job-myth-subsidised -wind -and-solar-destroy-far-more -jobs-than- they-ever-create/ (capitalization edite d to sentence case). 346 United States Energy & Employment Report 2022, O FFICE O F POLICY, OFFICE OF ENERGY JOBS, U.S. DEPARTMENT OF ENERGY, 24 (June 2022), https://www.energy.gov/sites/default/files/2022 -06/USEER%202022%20National%20Report_1.pdf. 347 Wind Vision: A New Era for Wind Power in the United States, supra note 229, at 139. 348 U.S. GLO BA L CHA NGE RESEARCH PROGRAM, supra note 121, at 32 -31. 44 Figure 15: Energy employment from 2020 to 2050 under various U.S. net-zero GHG emissions scenarios. Source: U.S. Global Change Research Program.349 Most of the current domestic jobs are in manufacturing.350 Over 500 U.S. manufacturing facilities now specialize in producing components for wind power generation.351 For turbines installed in the United States, approximately 70% of tower manufacturing and 80% of nacelle assembly also occurs domestically.352 Furthermore, the U.S. Bureau of Labor Statistics identified wind turbine service technicians as the fastest growin g occupation between 2022 and 2023, growing roughly 45% in size during that time.353 False Claim #27: Wind turbines destroy nearby property values. “[T]he presence of a wind power facility is likely to drive down the value of surrounding properties.”354 Multiple academic studies have assessed the impact of wind turbines on property values. Most recently, a March 2024 study found that having a wind turbine in a home ’s viewshed reduces the sales price by 1.12% on average.355 The study found that the negative impact of turbines on property values was primarily observed for urban, rather than rural, properties, and 349 Id. 350 James Hamilton et al., Careers in Wind Energy, U.S. BUREAU OF LA BOR STATISTICS (Sept. 2010), https://www.bls.gov/green/wind_energy/wind_energy.pdf 351 Wind Energy Technologies Office, Wind Manufacturing and Supply Chain, OFFICE OF ENERGY EFFICIENCY A ND RENEWABLE ENERGY , U.S. DEPA RTMENT O F ENERGY, https://www.energy.gov/eere/wind/wind -manufacturing -and-supp ly-chain (last visited March 25, 2024). 352 Id. The nacelle is the housing that holds the gearbox, generator, drivetrain, and brake assembly. 353 Fastest Growing Occupations, U.S. BUREAU O F LABOR STATISTICS (Sept. 2023), https://www.bls.gov/ooh/fastest-growing.htm. 354 FAQ: Economics, NA TIONAL W IND W ATCH, https://www.wind -watch.org/faq -economics.php (last visited March 25, 2024). 355 Wei Guo et al., The visual effect of wind turbines on property values is small and diminishing in space and time, PNAS, March 2024, at 2, https://www.pnas.org/doi/epdf/10.1073/pnas.2309372121. 45 that any negative impact on property values disappeared within ten years after turbine installation.356 The study also found that turbine installations have become less disruptive to home values over time: the researchers found no statistically - significant impact on home values for turbines installed after 2017 and stated that the 1.12% average impact “is larger than the effect one would expect for recent and future installations.”357 For comparison, a December 2023 study found evidence that, when a wind development is announced within one mile of a home, prices decline by up to 11% compared to homes three to five miles away. 358 However, home prices return to within 2% of inflation-adjusted pre-announcement levels roughly five years after the project enters operation.359 The study found that the population of the county mattered: the decrease was roughly 15% in co unties with over 250,000 people but statistically insignificant in counties with fewer than 250,000 people.360 The study also found no statistically-significant adverse impacts on home sale prices outside of 1.25 miles from the nearest turbine.361 An earlier study from 2021 testing how turbine size affects property values at varying distances found that, on average, nearby turbine installation decreases home value by 1.8%.362 The study also found that the farther a turbine was placed from a home, the less impact it had on property value.363 The greatest impact, a price drop of 8.3%, occurred when a large turbine (>150 meters) was placed within 750 meters of a home.364 The greatest impact from a medium sized turbine (50– 150 meters) was 3.4%.365 Beyond 2,250 meters, moreo ver, the 2021 study found no discernible price impact from turbines. 366 A separate study found no impact beyond 3 km. 367 The figure below shows how, for the 2021 study, size and distance of a turbine impacted property value.368 356 Id. at 3. 357 Id. at 3 -4. 358 Eric J. Brunner et al., Commercial wind turbines and residential home values: New evidence from the universe of land-based wind projects in the United States, 185 ENERGY POLICY 113837, at 1 (2023), https://www.sciencedirect.com/science/article/pii/S0301421523004226?via%3Dihub . 359 Id. at 1. 360 Id. at 9 -10. 361 Id. at 7, 10. 362 Martijn Dröes et al., Wind Turbines, Solar Farms, and House Prices, 155 ENERGY POL’Y , 2 (2021), https://doi.org/10.1016/j.enpol.2021.112327 . 363 Id. at 8. 364 Id. 365 Id. 366 Id. 367 Cathrine Jensen et al., The Impact of On-Shore and Off-Shore Wind Turbine Farms on Property Prices, 116 ENERGY POL’Y 54, 50 -59 (2018), https://doi.org/10.1016/j.enpol.2018.01.046 . 368 Martijn Dröes et al., supra note 362, at 8. 46 Figure 16: Graph shows how different size of wind turbines, and distance from property, affects home value. Turbine height is calculated as axis height plus half of the rotor blade diameter. Source: Martijn Dröes et al.369 Another academic study of roughly 50,000 Rhode Island single -family home transactions located within 5 miles of a turbine site found no statistically significant price impact. 370 While yet another academic study of roughly 50,000 home transactions (spread across nine states) within 10 miles of a turbine site likewise found no statistically significant evidence of a price change. 371 By contrast, a 2011 paper found that the presence of a fossil fuel fired power plant within 2 miles of one ’s home decreased its value by 4–7%.372 Among the fossil fuel power plants in the study sample, 92% were natural gas plants.373 Finally, these impacts can be mitigated. For example, multiple studies recom mend clustering turbines within wind farms.374 One of these studies found that adding a turbine within two kilometers of an existing turbine had a statistically insignifica nt 369 Id. 370 Corey Lang et al., The Windy City: Property Value Impacts of Wind Turbines in an Urban Setting, 44 ENERGY ECON. 413, 420-421 (2014), https://doi.org/10.1016/j.eneco.2014.05.010. 371 Lucas Nelsen, Are Property Values Affected by Wind Farms?, CENTER FOR RURAL A FFAIRS (July 19, 2018), https://www.cfra.org/blog/are -property-values-affected-wind -farms. 372 Lucas Davis, The Effect of Power Plants on Local Housing Value and Rents, 93 REV . ECON. STAT . 1391 (2011), https://doi.org/10.1162/rest_a_00119. 373 Id. at 1400. 374 Cathrine Jensen et al., supra note 367, at 51; Martijn Dröes et al., supra note 362, at 7. 47 impact on house prices.375 It bears noting, however, that turbines must be spaced in such a way as to minimize wake interference, the phenomenon where an upstream wind turbine interferes with the production of a downstream turbine.376 False Claim 28: Wind energy is unreliable. “[B]ecause of the wind’s intermittency and high variability, they do next to nothing to reduce the need for other fuels.”377 As with solar energy, complete reliance on wind energy would pose intermittency challenges. However, wind, solar, and storage together can provide the majority of the country’s electricity without compromising reliability.378 Hydropower has also been found to support wind and solar by compensating for intermittency in those sources.379 Moreover, building more long-distance transmission infrastructure can enable greater reliance on wind and solar gene ration,380 and linking offshore wind projects through offshore transmission networks is also expected to enhance grid reliability.381 A National Renewable Energy Laboratory report concluded that “wind power can support power system reliability” by providing “active power controls,”382 which are mechanisms for balancing the power generated by wind farms with the power consumed on the electricity grid.383 And although the reliability of wind and solar energy was questioned following Texas ’ widespread power outages in the winter of 2021, Texas ’ grid failure was primarily caused by freezing natural gas infrastructure, rather than failures at wind and solar farms , though nuclear, coal, and wind also experienced disruptions at a smaller scale .384 Wind energy has already be en successfully incorporated into the United States ’ electric grid at significant scale.385 Domestic energy production from wind more than tripled between 2011 and 2022, from 120 billion kilowatt-hours (2.9% of total 375 Martijn Dröes et al., supra note 362, at 7. 376 See Daniel R. Houck, Review of wake management techniques for wind turbines, 25 Wind Energy 195, 195-96 (2022), https://onlinelibrary.wiley.com/doi/epdf/10.1002/we.2668. 377 Id. 378 See Eric Larson et al., supra note 104 , at 88 (noting that, “[t]o ensure reliability, all cases maintain 500 -1,000 GW of firm generating capacity through all years,” compared to 7,400-9,900 GW for wind and solar in net -zero scenarios for 2050). 379 Rui Shan et al., Complementary relationship between small-hydropower and increasing penetration of solar photovoltaics: Evidence from CAISO, 155 RENEWABLE ENERGY 1139, 1140 (2020). 380 See id. at 97 (noting that “[l]imiting inter-regional transmission capacity to a maximum of 2x current cap acity . . . leads to slightly more gas w/ [carbon capture] and less wind ”). 381 O FFICE O F ENERGY EFFICIENCY & RENEWABLE ENERGY , U.S. DEP ’T OF ENERGY, A TLANTIC O FFSHORE W IND T RANSMISSION STUDY , at vii (March 2024), https://www.nrel.gov/docs/fy24osti/88003.pdf . 382 Erik Ela et al., Active Power Controls from Wind Power: Bridging the Gaps at xi, NA T ’L RENEWA BLE ENERGY LA BORATORY , Jan. 2014, ht tps://www.nrel.gov/docs/fy14osti/60574.pdf ; see also NREL Report Redefines Wind as a Grid Stabilizer, Not a Liability, NA T ’L RENEWA BLE ENERGY LA BORATORY, Jan. 2014, https://www.nrel.gov/docs/fy14osti/60993.pdf; Weihang Yan et al., Synchronous Wind: Evaluating the Grid Impact of Inverterless Grid-Forming Wind Power Plants, NA T’L RENEWABLE ENERGY LA BORATORY , 2023 (preprint), https://www.nrel.gov/docs/fy23osti/84609.pdf . 383 Jan-Willem van Windergarden et al., Active Power Control of Waked Wind Farms, 50 IFAC 4484, 4484, (July 2017), https://www.sciencedirect.com/science/article/pii/S240589631730722X . 384 Joshua W. Busby et al., Cascading risks: Understanding the 2021 winter blackout in Texas, 77 ENERGY RESEARCH AND SOCIAL SCIENCE 102106 (2021), 1 -4, https://www.sciencedirect.com/science/article/pii/S2214629621001997 ; Adriana Usero & Salvador Rizzo, ‘Frozen windmills’ aren’t to blame for Texas’s power failure, W A SH . PO ST, Feb. 18, 2021, https://www.washingtonpost.com/politics/2021/02/18/frozen -windmills-arent -blame -texass-power-failure -neither-is-green-new-deal/; Dionne Searce y, No, Wind Farms Aren’t the Main Cause of the Texas Blackouts, N.Y. T IMES , Feb. 17, 2021 (updated May 3, 2021), https://www.nytimes.com/2021/02/17/climate/texas-blackouts-disinformation.html. 385 Wind Explained: Electricity Generation from Wind, U.S. ENERGY INFORMATION A DMINISTRATION, https://www.eia.gov/energyexplained/w ind/electricity-generation -from-wind.php (last visited March 25, 2024). 48 energy production) to 435 billion kilowatt-hours (10.3% of total energy production).386 Some states have seen even more rapid growth. In 2021, wind energy accounted for 58% of electricity production in Iowa, and 43% of electricity production in Kansas.387 Wind power has enabled Iowa not only to reduce energy costs, but to generate additional revenue by selling excess power to neighboring states during shortages.388 Today, Iowa is considered one of the states with the most reliable energy systems.389 In California, electricity generated from wind powe r increased from roughly 3% in 2009, to roughly 7% in 2022. Electricity generated from natural gas declined from roughly 56% in 2009, to roughly 47% in 2022.390 Yet even with this increased reliance on wind power, California ’s grid reliability has remained consistent, and largely above national averages.391 California has even been able to briefly meet 103% of its energy demands exclusively from renewable sources, demonstrating that a large economy can by powered by renewable energy.392 The UK has also made substantial progress utilizing wind power, which was responsible for 26.8% of overall energy production in 2022, and which helped stave off the worse impacts from the energy crisis following Russia ’s invasion of Ukraine.393 False Claim 29: Wind turbines are very noisy. “Noise created by commercial-scale wind turbines has become a major concern around the world as wind power development continues to proliferate.”394 In a 2021 environmental impact statement for the 120 -turbine, 500-MW Rail Tie Wind Project in Wyoming, which is anticipated to serve the energy needs of 180,000 households, the Department of Energy found that noise generated by site operations likely would not exceed 55 A -weighted decibels (dBAs),395 except in a worst-case scenario in which noise “might reach slightly above 55 dBA.”396 The DOE provides as a point of comparison that sounds at 60 dBA resemble those of a 386 Id. 387 Niccolo Conte, Which US State Generates the Most Wind Power? There’s a Clear Winner, W ORLD ECONOMIC FO RUM (April 26, 2022), https://www.weforum.org/agenda/2022/04/us-wind -electricity-generation -renewable -energy/. 388 Chazz Allen, Iowa Leads in Homegrown, Reliable, Renewable Energy, GAZETTE (November 12, 2022) https://www.thegazette.com/guest-columnists/iowa-leads-in-homegrown-reliable -renewable -energy/. 389 Energy Rankings: Measuring States’ Energy Infrastructure, U.S. NEWS A ND W ORLD REPORT, https://www.usnews.com/news/best - states/rankings/infrastructure/energy (last visited March 25, 2024 ). 390 California Energy Comm’n, Total System Electric Generation 2009-2022 with totals, CalifO RNIA ENERGY CO MMISSION, (2022), https://www.energy.ca.gov/media/7311 . 391 California Energy Comm’n, Electric System Reliability Annual Reports, CA LIFORNIA ENERGY CO MMISSION, (2022), https://www.cpuc.ca.gov/ind ustries-and-topics/electrical-energy/infrastructure/electric -reliability/electric -system-reliability-annual- reports. 392 Lauren Sommer, California Just Ran on 100% Renewable Energy, but Fossil Fuels Aren’t Fading Away Yet, NPR (May 13, 2022), https://www.npr.org/2022/05/07/1097376890/for-a-brief-moment-calif-fully-powered -itself-with-renewable -energy. 393 Georgina Rannard, Wind Generated a Record Amount of Electricity in 2022, BBC NEWS , (January 6, 2023), https://www.bbc.com/news/science-environment-64179918 . 394 Noise Complaints on Rise with New Industrial Wind Power Projects, NATIONAL W IND WATCH , https://www.wind -watch.org/faq- noise.php (last visited March 25, 2024). 395 A -weighted decibel measurements factor into their assessment how the human ear actua lly perceives sound. See Fundamentals of Noise and Sound, FEDERAL A V IATION A DMINISTRATION, https://www.faa.gov/regulations_policies/policy_guidance/noise/basics (last visited March 25, 2024). 396 RA IL T IE W IND PROJECT FINAL ENVIRONMENTAL IMPACT STATEMENT, Nov. 2021, at ES -vi, https://www.energy.gov/sites/defau lt/files/2021- 11/final-eis-0543-rail-tie -wind-wyoming -2021 -11.pdf. 49 residential air conditioner 20 feet away, whereas sounds at 50 dBA resemble those of a residential air conditioner 50 feet away.397 When measured from inside a building located 124–330 meters from a wind turbine, noise produced by the turbine ’s motion has ranged from 30.7–43.4 decibels.398 When measured from outside at the same distance, noise level has ranged from 38.2-50.0 decibels in summer, and 38.9–44.6 decibels in winter.399 For context, a soft whisper is 30 decibels, a refrigerator hum is 40 decibels, and a typical conversation takes place at 60 decibels.400 The CDC has set 70 decibels as the cutoff at which prolonged exposure can cause annoyance a nd hearing damage.401 Also, noise has substantially decreased with turbine innovation: while earlier turbines created a steady noise from gears turning, modern turbines have been designed to insulate these sounds.402 397 Id. at 3 -104. 398 Chun-Hsiang Chiu et al., Effects of Low-Frequency Noise from Wind Turbines on Heart Rate Variability in Healthy Individuals, 11 SC I. REP . 17817, 17822 (2021), https://doi.org/10.1038/s41598-021-97107-8 . 399 Id. 400 What Noises Cause Hearing Loss?, CENTERS FOR DISEASE CO NTROL A ND PREVENTION (CDC), https://www.cdc.gov/nceh/hearing_loss/what_noises_cause_hearing_loss.html (last visited March 25, 2024) 401 Id. 402Wind Turbines, ENVIRONMENTAL PRO TECTION A GENCY , MINISTRY OF ENVIRONMENT OF DENMARK , https://eng.mst.dk/air-noise - waste/noise/wind -turbines/noise -from-wind -turbines/ (last visited March 25, 2024). 50 PART C: FALSE CLAIMS ABOUT ELECTRIC VEHICLES (#30-#33) 51 PART C: FALSE CLAIMS ABOUT ELECTRIC VEHICLES (#30 –#33) False Claim #30: Electric vehicles have a net harmful effect on climate change. “Contrary to vociferous assertions, EVs are no friends of the environment.”403 EVs are essential to reducing greenhouse gas (GHG) emissions and the use of fossil fuels that cause those emissions.404 The Environmental Protection Agency has found that EVs typically have lower lifecycle emissions than traditional gasoline - powered cars, even when taking into account the emissions released when manufacturing EVs and generating power to charge them.405 The Intergovernmental Panel on Climate Change has further explained that “[t]he extent to which EV deployment can decrease emissi ons by replacing internal combustion engine -based vehicles depends on the generation mix of the electric grid although, even with current grids, EVs reduce emissions in almost all cases.”406 The key reason why EVs reduce emissions in almost all cases is that they are inherently more efficient than conventional gasoline -powered vehicles: EVs convert over 77% of electrical energy to power at the wheels, whereas conventional vehicles only convert roughly 12%–30% of the energy in gasoline to power at the wheels.407 Assuming average U.S. grid emissions, the average lifecycle GHGs associated with a gasoline -powered car that gets 30.7 miles per gallon are more than twice as high as those of an EV with a 300 -mile range.408 The figure below from the EPA shows that the lifecycle GHGs for the gasoline -powered car under this scenario are between 350 and 400 grams/mile, whereas the lifecycle GHGs for the EV are only slightly above 150 grams/mile.409 403 Steve Forbes, The Expensive and Harmful Truth About Electric Vehicles, FO RBES, Jan. 6, 2023, https://www.forbes.com/sites/steveforbes/2023/01/06/the-expensive -and-harmful-truth-about-electric -vehicles/. 404 See Divya Singh et al., Does electric vehicle adoption (EVA) contribute to clean energy? Bibliometric insights and future research agency, 8 Cleaner & Responsible Consumption 100099, 1 (2023), https://www.sciencedirect.com/science/article/pii/S2666784322000535#bib4 ; Electric Vehicle Benefits and Considerations, A LTERNATIVE FUELS DA TA CENTRE, O FFICE O F ENERGY EFFICIENCY AND RENEWABLE ENERGY , US DEPARTMENT O F ENERGY, https://afdc.energy.gov/fuels/electricity_benefits.html (last visited Apr. 1, 2024). 405 Electric Vehicle Myths, supra note 18. 406 IPCC, Climate Change 2022: Mitigation of Climate Change (2022), 271, https://www.ipcc.ch/report/ar6/wg3/downloads/report/IPCC_AR6_WGIII_FullReport.pdf. 407 All-Electric Vehicles, U.S. DEPT . O F ENERGY, https://www.fueleconomy.gov/feg/evtech.shtml (last visited March 25, 2024); see also Eric Larson et al., supra note 104 , at 40. 408 Electric Vehicle Myths, supra note 18. 409 Id. 52 Figure 17: Break down of lifecycle emissions for electric and gasoline cars. This figure is based on the following assumptions: a vehicle lifetime of 173,151 miles for both the EV and gas car; a 30.7 MPG gas car; and U.S. average grid emissions. Source: EPA.410 Most importantly, EVs ’ lack of tailpipe emissions and heightened efficiency more than offset the emissions required to manufacture EV batteries: these emissions are offset within 1.4 -1.5 years for electric sedans, and within 1.6 -1.9 years for electric SUVs.411 These reduced tailpipe emissions not only help to stabilize our climate, but also improve air quality, bringing multiple health benefits including reduced rates of childhood asthma, particularly in urban areas. The emissions offset by transitioning to EV s vary based on the carbon intensity of the energy grid. A study from Munich ’s Universität der Bundeswehr found EVs to have reduced emissions by 72% when powered by Germany ’s electric grid, which drew 23% of its electricity from renewable energy in 2021.412 But the researchers projected that a 100% renewable energy grid would have allowed EVs to reduce emissions by as much as 97%.413 And the U.S. grid is getting cleaner over time, with a 44% reduction in power sector emissions from 2005 to 2023, meaning that EV s are having an increasingly positive impact on U.S. emissions.414 For those drivers in the United States who would like to ensure that they are charging their 410 Id. 411 Maxwell Woody et al., The Role of Pickup Truck Electrification in the Decarbonization of Light-Duty Vehicles, 17 ENVIRON. RES. (Mar. 1, 2022), https://iopscience.iop.org/article/10.1088/1748-9326/ac5142 . These figures assume “a business-as-usual scenario which includes policies in place as of June 2020 with no projected policy changes, resulting in a grid that is 50% less carbon inte nsive in 2035 compared to 2005.” 412 Johannes Buberger et al., Total CO2-Equivalent Life-Cycle Emissions from Commercially Available Passenger Cars, 159 RENEWABLE & SUSTAINABLE ENERGY REV , 10 (2022), https://doi.org/10.1016/j.rser.2022.112158 . 413 Id.; see also Paul Wolfram et al., Pricing Indirect Emissions Accelerates Low—Carbon Transition of US Light Vehicle Sector, 12 NA TURE CO MMC ’NS, (2021), https://doi.org/10.1038 /s41467-021-27247-y. 414 Power Sector Carbon Index, SCOTT INSTITUTE FOR ENERGY INNOVATION, https://emissionsindex.org/ (last visited March 25, 2024). 53 EVs with the cleanest possible energy, the Environmental Protection Agency ’s Energy Star program helps drivers determine which chargers rely on renewable energy sources.415 False Claim #31: Electric vehicles will cost the United States many automobile industry jobs. “By most estimates under Biden’s electric vehicle mandate, 40 percent of all U.S. aut o jobs will disappear —think of this—in one or two years.”416 EV manufacturing need not result in fewer jobs in the U.S. automobile industry.417 A 2022 study found that manufacturing battery EV [BEV] powertrain components is more labor intensive than manufactur ing powertrain components for internal combustion engine vehicles [ICEVs], which suggests that vehicle electrification may lead to powertrain manufacturing job growth.418 In addition, an Economic Policy Institute report concluded that “if the shift to BEVs is accompanied by strategic investments in manufacturing and job quality in the U.S. auto sector, then the number and quality of jobs can rise together with BEV production.”419 Electric vehicle production already has created thousands of new jobs in the United States. From 2015 to 2023, there were over 179,000 announced U.S. jobs related to EVs and EV batteries.420 In 2021, the domestic EV industry employed roughly 106,000 workers, more than a 90% increase from 2016 (roughly 55,000 jobs).421 In 2021 alone, the number of domestic jobs in the EV industry grew by over 26%.422 415 Charge Your Electric Vehicle Sustainably With Green Power, ENERGY STAR, U.S. ENVIRONMENTAL PRO TECTION A GENCY , 2, https://www.energystar.gov/sites/default/files/asset/document/Charging%20EVs%20with%20Green%20Power.pdf (last visited March 25, 2024). 416 Angelo Fichera, Trump Autoworkers Speech Fact Check: What of Electric Vehicles?, N.Y. T IMES (Sept. 28, 2023 , last updated Oct. 9, 2023), https://www.nytimes.com/2023/09/28/us/politics/trump -fact-check-electric-vehicles.html (quoting Donald Trump). 417 See Emily Pontecorvo, There’s Surprisingly Little Evidence That EVs Will Require Fewer Workers, HEATMAP (Oct. 6, 2023), https://heatmap.news/electric -vehicles/evs-trump-uaw-jobs-evidence. 418 Turner Cotterman et al., The transition to electrified vehicles: Evaluating the labor demand of manufacturing conventional versus battery electric vehicle powertrains at 1 (June 4, 2022), https://ssrn.com/abstract=4128130 . 419 Jim Barrett & Josh Bivens, The Stake for Workers in How Policymakers Manage the Coming Shift to All-Electric Vehicles, ECONOMIC P O LIC Y INSTITUTE (Sept. 22, 2021), https://www.epi.org/publication/ev-policy-workers/ .The study authors focused on vehicle powertrains, “the automotive system responsible for generating the kinetic power to move the vehicle forward,” because the powertrain is the least similar aspect between EVs and ICEVs. Id. At 3. 420 ENV T ’L DEFENSE FUND, U.S. ELECTRIC V EHICLE MA NUFACTURING INVESTMENTS A ND JO BS : CHARACTERIZING THE IMPACTS OF THE INFLA TION REDUCTION A C T A FTER 1 Y EAR at 2 (2023), https://www.edf.org/sites/default/files/2023-08/EDF%20WSP%20EV%20report%208 -16 - 23%20FINAL%20FINAL.pdf. 421 BW Research Partnership, Energy Employment by State – 2020, 147 (2020), https://www.usenergyjobs.org/s/USEER-Energy- Employment -by-State-2020.pdf; David Keyser et al., United States Energy and Employment Report 2022, OFFICE OF P OLICY, O FFICE O F ENERGY JOBS, U.S. DEPARTMENT OF ENERGY , 141 -143 (2022), https://www.energy.gov/sites/default/files/2022 - 06/USEER%202022%20National%20Report_1.pdf. 422 DOE Report Finds Energy Jobs Grew Faster Than Overall U.S. Employment in 2021, U.S. DEPARTMENT OF ENERGY (June 28, 2022), https://www.energy.gov/articles/doe -report-finds-energy-jobs-grew-faster-overall-us-employment -2021 . 54 Moreover, economic incentives from the 2022 Inflation Reduction Act have increased domestic production and s trengthened domestic supply chains.423 The Inflation Reduction Act provides a customer rebate of up to $7,500 for EVs produced in the United States. The IRA includes additional provisions that mobilize domestic mining and mineral processing, as well as battery manufacturing, to further concentrate EV supply chains within the United States.424 This has spurred broadly distributed job growth, with rough 84,800 new EV -related jobs and $92.3 billion in EV -related investments announced since the passage of the IRA.425 And in addition to benefitting U.S. jobs, EVs are anticipated to benefit U.S. consumers: a recent Gartner analysis suggests that, on average, next -generation EVs will be cheaper to produce than comparable internal - combustion engine vehicles by 2027.426 False Claim #32: Electric vehicles are impractical due to range restrictions. “Here’s the problem with an electric car: they don’t go far. Very simple.”427 The majority of EVs can travel roughly 200 miles on a single charge and some models can travel over 4 00 miles on a single charge.428 Although the median range of a gasoline vehicle (403 miles) is roughly twice that of an EV (234 miles),429 the range of a standard EV is more than enough to meet the daily needs of median U.S. households.430 A 2016 study found that the travel requirements of 87% of vehicle -days could be met by existing, affordable electric vehicles.431 The average range of electric vehicles has only increased since then, from roughly 145 miles in 2016 to roughly 217 miles in 20 21.432 Because most EV drivers charge their vehicles overnight at their home, most of these drivers can go about their daily driving with no need to stop to recharge.433 EV range is also benefiting from the build -out of charging infrastructure. The United States is rapidly building electric charging stations, roughly tripling those in operation, from approximately 53,000 in 2017 to approximately 144,000 in 423 See ENVT ’L DEFENSE FUND, supra note 420, at 4 -5; Leo Banks, How Inflation Reduction Act Electric Vehicles Incentives Are Driving a U.S. Manufacturing Renaissance, Center for American Progress, Nov. 22, 2023, https://www.americanprogress.org/article/how - inflation-reduction-act -electric-vehicle -incentives-are -driving -a-u-s-manufacturing -renaissance/. 424 Owen Minott et al., IRA EV Tax Credits: Requirement for Domestic Manufacturing, BIPARTISAN P OLICY CENTER (Feb. 24, 2023), https://bipartisanpolicy.org/blog/ira-ev-tax-credits/. 425 ENV T ’L DEFENSE FUND, supra note 420, at 4-5 . 426 Gartner Outlines a New Phase for Electric Vehicles, GA RTNER , March 7, 2024, https://www.gartner.com/en/newsroom/press- releases/2024 -03 -07-gartner-outlines-a-new -phase -for-electric -vehicles. 427 Former President Donald Trump, Campaign Speech in Ankeny, Iowa, CSPAN (Dec. 2, 2023), https://www.c- span.org/video/?532073-1/president-trump -delivers-remarks-ankeny-iowa. 428 Electric Vehicle Myths, supra note 18; Model Year 2021 All-Electric Vehicles Had a Median Driving Range about 60% That of Gasoline Powered Vehicles, DEP ’T OF ENERGY , Jan. 17, 2022, https://www.energy.gov/eere/vehicles/articles/fotw -1221 -january-17 -2022- model-year-2021-all-electric -vehicles-had-median; Evolution of average range of electric vehicles by powertrain, 2010-2021, IEA (last updated May 19, 2022), https://www.iea.org/data-and-statistics/charts/evolution-of-average -range-of-electric -vehicles-by-powertrain- 2010-2021. 429 DEP ’T O F ENERGY, supra note 428 . 430 Electric Vehicle Myths, supra note 18. 431 Zachary A. Needell et al., Potential for Widespread Electrification of Personal Vehicle Travel in the United States, NA TURE ENERGY 1, 16112 (2016). https://doi.org/10.1038/nenergy.2016.112 . 432 Evolution of average range of electric vehicles by powertrain, 2010-2021, supra note 428 . 433 Charging Electric Vehicles at Home, U.S. Dep ’t of Energy, https://afdc.energy.gov/fuels/electricity_charging_home.html (last visited March 25, 2024). 55 2022.434 Using funds from the 2021 Infrastructure Investment and Jobs Act and the 2022 Inflation Reduction A ct, the United States has pledged to build 500,000 charging stations by 2030.435 This is more than three times the current number of gas stations.436 In addition, the United States installed 6,300 fast chargers in 2022, bringing the national total to 28,000 fa st chargers.437 On a global scale, by 2022 there were 2.7 million EV chargers in operation worldwide, with more than 900,000 installed in 2022 alone, a 55% increase from 2021.438 False Claim #33: Electric vehicles cannot function in hot or cold weather. “Temperature affects EVs in bad ways.”439 Extreme temperatures can decrease EV range, particularly extreme cold, but this issue is not unique to EVs. According to a 2019 American Automobile Association report, when compared to conditions of 75°F with the HVAC set to Off, a typical EV’s range decreased by 12% at 20°F, and by 4% at 95°F. 440 When comparing conditions with the HVAC set to Auto, a temperature drop from 72°F to 20°F decreased a typical EV ’s range by 41%, and a temperature rise from 72°F to 95°F decreased range by 17%.441 However, EV models are increasingly adopting heat pump technology in place of traditional electric resistance heating, which can minimize the electricity consumption associated with heating an electric vehicle in extreme cold.442 Traditional gasoline-powered cars are likewise susceptible to extreme weather conditions. Fuel economy tests have also shown a decrease in mileage per gallon for conventional gasoline cars due to temperature drops, with mileage roughly 15% lower at 20°F than at 72°F.443 As with EVs, decreased fuel efficiency for conventional gasoline cars in extreme weather is 434 Electric Vehicle Charging Infrastructure Trends, O FFICE OF ENERGY EFFICIENCY A ND RENEWABLE ENERGY, U.S. DEPARTMENT OF ENERGY, https://afdc.energy.gov/fuels/electricity_infrastructure_trends.html (last visited March 26, 2024). 435 FACT SHEET: Biden-Harris Administration Announces New Standards and Major Progress for a Made-in-America National Network of Electric Vehicle Chargers, W HITE HOUSE (February 15, 2023), https://www.whitehouse.gov/briefing -room/statements- releases/2023/02/15/fact-sheet-biden-harris-administration-announces-new-standards-and-major-progress-fo r-a-made -in-america- national-network-of-electric -vehicle -chargers/. 436 Service Station FAQs, A MERICAN PETROLEUM INSTITUTE, https://www.api.o rg/oil-and-natural-gas/consumer-information/consumer- resources/service -station-faqs (last visited March 25, 2024). 437 INTERNATIONAL ENERGY A GENCY, GLO BAL EV O UTLOOK 2023, 45 (2023), https://iea.blob.core.windows.net/assets/dacf14d2 -eabc-498a- 8263-9f97fd5dc327/GEVO2023.pdf . 438 Id. 439 Federico Alcala, 15 Disadvantages of Electric Cars, T O P SPEED (Jul. 6, 2023), https://www.topspeed.com/disadvantages-of-electric - cars/#charging -times-are -still-not -on-par-with-filling-up-gas. 440 AAA Electric Vehicle Range Testing, A MERICAN A UTOMO BILE A SSOCIATION, 32, 51 (2019), https://www.aaa.com/AAA/common/AAR/files/AAA -Electric -Vehicle -Range -Testing-Report.pdf. 441 Id. 442 Carolyn Fortuna, Why Heat Pumps Are Essential for EVs When the Weather Is Cold, CLEA N T ECHNICA, Jan. 22, 2024, https://cleantechnica.com/2024/01/22/why -heat-pumps-are -essential-for-evs-when-the-weather-is-cold ; Shannon Osaka, Why you might want a heat pump in your electric car, W A SHINGTON POST , Jan. 7, 2023, https://www.washingtonpost.com/climate - solutions/2023/01/07/electric -vehicles-cold-winter-range/. 443 Fuel Economy in Cold Weather, U.S. DEP ’T . ENERGY , https://www.energy.gov/energysaver/fuel-economy-cold-weather (last visited March 25, 2024). 56 partially attributable to increased reliance on HVAC systems.444 Both EVs and gasoline -powered cars are likewise susceptible to cold temperatures lowering tire press ure.445 Data from a roadside assistance company in Norway suggests that, by certain metrics, electric vehicles may actually be more reliable than gasoline-powered cars in the cold: 23% of vehicles in Norway are EVs, but the company reported that only 13% of the cases of vehicles failing to turn on in the cold were EVs.446 444 Id.; Fuel Economy in Hot Weather, U.S. DEP’T ENERGY, https://www.energy.gov/energysaver/fuel-economy-hot-weather (last visited March 25, 2024). 445 See Sydnie Gjerald, Winter Range: ICE vs EV, UTILMA RC , Jan. 4, 2022, https://www.utilimarc.com/blog/winter-range -ice -vs-ev/; Fuel Economy in Cold Weather, supra note 443. 446 Fred Lambert, Electric vehicles fail at a lower rate than gas cars in extreme cold, ELECTREK, Jan. 17, 2024, https://ele ctrek.co/2024/01/17/electric -vehicles-fail-lower-rate -than-gas-cars-extreme -cold/. The relatively strong performance of EVs in cold weather in Norway may be influenced by the more frequent use of home charging, more extensive charging port distribut ion, and drivers that are more accustomed to managing EVs in the cold. See Emily Schmall & Jenny Gross, Electric Car Owners Confront a Harsh Foe: Cold Weather, N.Y. T IMES, Jan. 17, 2024 (updated Jan. 18, 2024), https://www.nytimes.com/2024/01/17/business/tesla - charging -chicago-cold -weather.html. Dec om missioning Utility-Scale Solar Facilities Financial Best Practices for Virginia Localities AUGUST 2022 Irene Cox How can Virginia localities hosting utility-scale solar projects minimize their risk of bearing decommissioning obligations without increasing barriers to such projects? This report seeks to offer a practical inventory of regulatory options which localities can adjust based on a utility-scale solar project’s characteristics. The author analyzes decommissioning best practices with respect to context-appropriate site removal and land restoration regulations, legal protections for the locality, financial assurance mechanisms and posting methods, and adjustments to decommissioning security which account for inflation, any administrative factor, and salvage credit. Decommissioning regulations required by state law are distinguished from those which a locality may enforce at its discretion. ABOUT THE AUTHOR Irene Cox is a policy intern at the Weldon Cooper Center for Public Service and a Master of Public Policy candidate at the University of Virginia’s Frank Batten School of Leadership and Public Policy. She holds a B.A. in Economics from the University of Virginia and hopes to continue evaluating policy options which promote renewable energy infrastructure in the Commonwealth of Virginia. Irene can be reached by email at ivc6vq@virginia.edu. ACKNOWLEDGEMENTS I would like to express my sincere gratitude to Elizabeth Marshall and Professor Bill Shobe for their guidance and support on this project. I also thank the local representatives, solar developers, policy consultants, and field experts whose kind consideration and helpful perspectives were instrumental in establishing the context for this paper. Any errors found in this report are the author’s alone. This report was prepared by Irene Cox for the Energy Transition Initiative, which is housed in the Center for Economic and Policy Studies at the University of Virginia Weldon Cooper Center for Public Service. TABLE OF CONTENTS ABBREVIATIONS ............................................................................................................................................... 1 EXECUTIVE SUMMARY .................................................................................................................................... 2 Decommissioning Ordinances ............................................................................................................... 3 Legal Framework in Case of Abandonment ........................................................................................... 3 Financial Assurance .............................................................................................................................. 3 Salvage Credit ...................................................................................................................................... 4 PROBLEM STATEMENT ................................................................................................................................... 5 BACKGROUND .................................................................................................................................................. 6 What is a Utility-Scale Solar Facility? .................................................................................................... 6 Economic Context ................................................................................................................................ 6 Summary of State Laws Indicating Mandatory and Discretionary Local Actions upon Utility-Scale Solar Facilities.............................................................................................................................................................. 11 DECOMMISSIONING ORDINANCE ............................................................................................................ 14 Where to State Decommissioning Requirements ................................................................................. 14 Refurbishment and Repowering ......................................................................................................... 14 Recommended Decommissioning Ordinance Content ......................................................................... 16 Procedure ........................................................................................................................................................... 16 Terms and Conditions ........................................................................................................................................ 17 Land Management and Restoration .................................................................................................................. 18 Decommissioning Plan ....................................................................................................................................... 19 LEGAL FRAMEWORK FOR LOCALITY IN CASE OF ABANDONMENT................................................ 22 Abandonment and Removal Clause .................................................................................................... 22 Special Permit Application .................................................................................................................. 23 Temporary Variance Process .............................................................................................................. 23 Examples ........................................................................................................................................... 23 FINANCIAL ASSURANCE ............................................................................................................................. 26 What Kinds of Financial Assurance Should a Locality Allow? ................................................................ 27 Trust Funds ......................................................................................................................................................... 27 Cash Escrow ....................................................................................................................................................... 27 Letter of Credit ................................................................................................................................................... 28 Surety Bond Guaranteeing Payment or Performance ....................................................................................... 29 Insurance ............................................................................................................................................................ 30 Guarantee by an Investment-Grade Entity ........................................................................................................ 31 Additional Considerations .................................................................................................................................. 34 Summary of Financial Assurance Mechanisms .................................................................................................. 36 When Should a Locality Require an Owner or Affiliate to Post FA? ....................................................... 38 DETERMINING DECOMMISSIONING COSTS .......................................................................................... 41 Valuation of the Administrative Factor ............................................................................................... 41 Salvage Credit .................................................................................................................................... 42 Salvage Plan ....................................................................................................................................................... 42 When To Allow a Salvage Credit ........................................................................................................................ 42 Salvage Credit Calculations ................................................................................................................................ 43 SUMMARY OF RECOMMENDATIONS ...................................................................................................... 44 APPENDIX A: DECOMMISSIONING REGULATIONS BY VIRGINIA LOCALITY, AS OF JULY 2022 ........................................................................................................................................................................... 47 APPENDIX B: DECOMMISSIONING CONSIDERATIONS ...................................................................... 49 REFERENCES ................................................................................................................................................... 52 Decommissioning Utility-Scale Solar Facilities 1 ABBREVIATIONS AEP: ApCo: Appalachian Power Company BLS: Bureau of Labor Statistics CPCN: Certificate of Public Convenience and Necessity DEQ: Virginia Department of Environmental Quality EoL: End-of-Life EPA: U.S. Environmental Protection Agency FA: Financial Assurance kWh: Kilowatt hours LC: Letter of Credit MW: Megawatt NRCS: Natural Resources Conservation Service NREL: National Renewable Energy Laboratory NRSRO: Nationally Recognized Statistical Ratings Organization NYSERDA: New York State Energy Research and Development Authority PBR: PJM: abbreviates Pennsylvania, New Jersey, and Maryland, the initial territories whose utilities joined together into an RTO. PJM now operates in all or parts of Delaware, Ohio, Virginia, Kentucky, North Carolina, West Virginia, Indiana, Michigan, and Illinois. PPA: Power Purchase Agreement PPI: Producer Price Index PV: Photovoltaic RCRA: Resource Conservation and Recovery Act of 1976 RPS: Renewable Energy Portfolio Standard RTO: Regional Transmission Organization SCC: State Corporation Commission SEC: U.S. Securities and Exchange Commission SEIA: Solar Energy Industries Association USDA: United States Department of Agriculture TCLP: Toxicity Characteristic Leaching Protocol VCEA: Virginia Clean Economy Act Decommissioning Utility-Scale Solar Facilities 2 EXECUTIVE SUMMARY When any large energy generation facility reaches the end of its project life, it is commonly decommissioned in accordance with local, state, and federal guidelines: The facility owner disposes of site infrastructure and restores the facility’s real property to a condition suitable for its subsequent use. As is the case with other energy facilities, localities appropriately request specific decommissioning plans and financial assurance from the owners of utility-scale solar facilities in advance of decommissioning. While the financial assurance amounts appropriate for utility-scale solar projects can be quite large—hundreds of thousands of dollars or more—utility-scale solar decommissioning is relatively less expensive, time-intensive, and environmentally disruptive than is the case for decommissioning end-of-life (EoL) nuclear, coal, natural gas, and oil well facilities. To date, it can be challenging for Virginia localities to access contextualized guidance for creating decommissioning policies which both minimize the locality’s exposure to the risk of bearing decommissioning obligations and avoid imposing excessive or superfluous costs on the developers and owners of utility-scale solar projects. Because the Code of Virginia establishes a hybrid regulatory structure for solar energy, localities have the authority to regulate the siting and decommissioning processes for solar facilities beyond the requirements of state law and the responsibility to enforce both state and local solar ordinances (Va. Stat. §15.2-2241.2, 2019; Va. Stat. §§15.2-2288.7:2288.8, 2021; Va. Stat. §§15.2-2316.7:2316.9, 2021). While the local regulations governing utility-scale solar sites vary, a locality-approved plan for decommissioning an end-of-life plant and restoring the facility site is often required for construction to begin. By developing and applying comprehensive, context-appropriate strategies for decommissioning end-of-life (EoL) large- and utility-scale solar projects, localities can ensure that land is left in usable condition at the end of a solar facility’s useful life. This analysis evaluates several local policy strategies for managing utility-scale solar decommissioning in the Commonwealth of Virginia: 1) Establishing an effective decommissioning ordinance; 2) Defining a legal framework to enforce decommissioning; 3) Requesting appropriate forms of financial assurance; and 4) Factoring salvage credit, inflation, and administrative costs. This paper distinguishes among (i) the decommissioning regulations a locality must enforce, as required by state law, (ii) those which the county or city has the authority to enforce at its discretion, and (iii) discretionary regulations which are recommended as best practice for the locality. An overview of the topics and recommendations of this paper is provided below. Decommissioning Utility-Scale Solar Facilities 3 DECOMMISSIONING ORDINANCES A decommissioning ordinance states the minimum decommissioning requirements to be executed by a solar facility’s owner at the end of the project’s life or upon abandonment, and the appropriate contents for a decommissioning plan that a developer should file with the locality prior to initiating site construction. The requirements of a decommissioning ordinance may be formally incorporated into a locality’s existing zoning ordinance, solar ordinance, or other municipal code. If no local law specifies minimum decommissioning requirements, then a locality may instead issue site-specific decommissioning requirements as a component of a conditional use permit, special use permit, siting agreement, or special exception. A locality with laws regulating decommissioning may also create a site-specific decommissioning ordinance with stricter or additional provisions. Virginia localities commonly include decommissioning provisions as a component of their solar ordinance, and these provisions apply to large- and utility-scale solar projects. Localities also have the authority to adopt a decommissioning ordinance independently of adopting a solar ordinance. A locality’s decommissioning ordinance should define key terms, such as decommissioning and abandonment; specify financial assurance requirements, salvage allowances, and the processes for accurately adjusting costs due to annual inflation and changes in secondary markets for solar materials; and state the conditions for sediment and erosion control compliance, post-closure land- use, and land restoration. Localities may also consider suggesting the minimum conditions a facility’s owner or affiliate should fulfill if they seek to extend the life of the facility by installing new solar panels, a process known as repowering. LEGAL FRAMEWORK IN CASE OF ABANDONMENT Localities may protect themselves against bearing decommissioning costs by stating the conditions which affect access to financial assurance. These methods include defining facility non-performance and abandonment, stating the point at which financial assurance instruments are activated, requiring a special permit application in which the decommissioning plan is codified in the locality’s zoning ordinance, issuing site approvals or permits with an abandonment and removal clause, and specifying a temporary variance. FINANCIAL ASSURANCE Localities may access a menu of financial assurance (FA) options that cover the full cost of decommissioning. Different forms of FA are appropriate in different circumstances. Common FA mechanisms include but are not limited to: trust funds, cash escrow, irrevocable letters of credit, Decommissioning Utility-Scale Solar Facilities 4 surety bonds guaranteeing payment or performance, insurance, financial tests, and guarantees by an investment-grade entity, such as a parent guarantee or promissory letter. It is in both the locality’s and the developer’s best interest to minimize the costs associated with posting security. The type of FA a locality should require of a developer and the time or times at which it should be posted are context dependent. The surety amount available to the locality should be periodically adjusted based on a Virginia-licensed engineer’s re-evaluation of decommissioning costs. Although the appropriate timeframe for posting decommissioning security may vary by solar project, a locality should in every case require the site owner to post FA until the decommissioning process has been completed. SALVAGE CREDIT It is at the locality’s discretion whether to allow a salvage credit. While state law does not require the inclusion of a salvage credit against decommissioning costs, it is good practice for a locality to allow a salvage credit for the portion of solar hardware that can be resold for scrap value or reuse at the end of a facility’s operating life. A salvage credit need not equal the total estimated salvage value. A locality can protect against fluctuations in salvage value by using a salvage credit calculation which includes a reserve value. Decommissioning Utility-Scale Solar Facilities 5 PROBLEM STATEMENT A utility-scale solar facility, once built, is very likely to remain economically productive for a long period of time. A solar panel can remain in service for 30 years or longer. An owner or operator of a grid-connected solar facility is unlikely to abandon a utility-scale project during its expected lifetime because of the high value of power produced and contractual obligations arising from the project’s long-term economic value (North Carolina DEQ, 2022, p. 4). Even as the initially installed panels age, project owners will very often face a strong incentive to install new panels on the existing site, a process known as repowering. But any industrial facility can reach an end to its useful economic life, so it is in the locality’s interest to establish clear decommissioning conditions so that (i) should a project owner become financially insolvent, the locality does not incur the responsibility of decommissioning the solar project, and (ii) at the end of a project’s life, retired equipment is responsibly managed and the land is appropriately restored, prepared for redevelopment, or equipped for repowering. Utility-scale solar development will likely continue to increase as the Commonwealth as Virginia is forecast to face higher energy demands over the next decade (PJM, 2022; Shobe, 2021), as Dominion Energy and Appalachian Electric Power continue to comply with the Virginia Clean Economy Act (Duimstra, 2021), and as the costs of solar generation continue to fall (Basore & Feldman, 2022; Davis et al., 2021; McGowan, 2021; U.S. EIA, 2020). Host localities will benefit from timely access to an inventory of guiding practices in anticipation of these facilities’ eventual decommissioning. The practices detailed in this paper seek to help localities protect against the risk of bearing decommissioning costs while simultaneously reducing developers’ barriers to installing utility-scale solar projects. Decommissioning Utility-Scale Solar Facilities 6 BACKGROUND WHAT IS A UTILITY-SCALE SOLAR FACILITY? For the purposes of this report, a utility-scale solar facility is any ground-mounted solar photovoltaic (PV) project with the nameplate capacity to generate five or more megawatts (MW) of electricity—as measured in alternating current—then injected to the grid for offsite consumption, in accordance with the threshold set by the National Renewable Energy Laboratory (NREL, 2022). The term large- scale solar facility refers to installations with a capacity of at least one MW; utility-scale facilities are by definition large-scale solar plants.1 Something less than ten acres of land are required for each MW of solar capacity: One somewhat dated study estimates a capacity-weighted average ranging from 7.3 acres per MW (direct land-use) to 8.9 acres per MW (total land area) (Ong et al., 2013). This land footprint has likely fallen as more efficient solar panels have become available. Solar cell efficiency has increased from 18% in 2015 to over 22% in 2021. The Solar Energy Industries Association currently reports a range of between 5 and 10 acres per MW, depending on specific site characteristics. The total number of solar PV panels installed per acre is site-specific, varying with terrain, hardware characteristics (e.g., tracking versus mounted panels), and setup decisions (e.g., spacing between arrays, angled versus flat configuration). Back-of-the-envelope calculations based on publicly accessible data from the North Carolina DEQ suggest that, depending on solar technology and site conditions, roughly 2,500 to 5,050 solar panels are required to produce one MW of electricity (Scott, 2022). Utility-scale solar facilities average a project life of thirty years, after which point installed solar PV panels produce electricity at approximately eighty to eighty-five percent of their rated capacity (Curtis, Buchanan, Smith, & Heath, 2021; Atasu, Duran, & Wassenhove, 2021). The increasing efficiency of solar technology (Basore & Feldman, 2022) offers both a lengthened project life in the future (Curtis et al., 2021) and the opportunity to repower existing utility-scale projects with more efficient, higher output panels. (MDOC, 2018, p. 4). ECONOMIC CONTEXT Researchers project that over the next two decades, solar energy systems will drive at least fifteen percent of the forecasted 5.9 trillion kWh global increase in new electricity generation from renewable energy sources (Eissa & Tian, 2017). The levelized cost of photovoltaic energy is further predicted to decrease through at least 2030, indicating the potential for lower energy costs and 1 Author’s Note: The U.S. Energy Information Administration (EIA, 2019), the Solar Energy Industries Association (SEIA, 2022), and many local ordinances define “utility-scale solar” as PV capacity greater than 1 MW. This paper applies a 5 MW threshold for utility-scale solar and a 1 MW threshold for large-scale solar for internal consistency. Decommissioning Utility-Scale Solar Facilities 7 higher investment returns (Creutzig et al., 2017). For the first five months of 2022, utility-scale solar accounted for more than five percent of Virginia’s in-state electricity generation. Solar generation in Virginia more than tripled between 2019 and 2021 (EIA, 2022), and has continued to grow rapidly: Virginia was the fifth-leading state in the country for newly installed solar capacity in 2020 (McGowan, 2021; Vogelsong, 2021) and ranked fourth in 2021 (SEIA, 2022). A June 2022 analysis by the Solar Energy Industries Association (SEIA) estimates that solar developers have invested $4.2 billion in the Commonwealth to date, with more than 35% of that activity occurring in 2021 alone. The benefits of these investments in carbon-free solar development will continue accruing to localities over time as they receive tax revenues from operational utility-scale solar facilities. As of July 2022, federal data indicated that at least 63 large-scale solar facilities operated in Virginia. Of these, 55 facilities had a rated capacity of five MW or greater—a 44.7% increase in operating utility-scale solar facilities from January 2021 (EIA, 2022; Berryhill, 2021). PJM, EIA, and DEQ data indicate that at least twenty additional utility-scale projects have received a PBR and are planned for installation, under construction, or active but not yet producing power as of July 2022, with many other proposals engaged in local permitting and PBR review processes. Decommissioning Utility-Scale Solar Facilities 8 Figure 1 – Operational Utility-Scale Solar Facilities in the Commonwealth of Virginia, as of July 2022 2 Facility Name MW Locality Date Facility Name MW Locality Date Eastern Shore Solar, LLC 80 Accomack 2016 Desper / Belcher Solar 88.2 Louisa 2021 Depot Solar 15 Campbell 2022 20 Northampton 2017 Skipjack Solar 175 2022 TPE Kentuck Solar LLC 6 Pittsylvania 2018 13.8 Charlotte 2020 50 Pittsylvania 2021 32 Chesapeake 2020 Danville Farm, LLC 12 Pittsylvania 2020 Bedford Solar Center 70 Chesapeake 2021 10 Pittsylvania 2020 10 Clarke 2017 Scott-II Solar LLC 20 Powhatan 2017 LLC 20 Essex 2017 Road LLC 19.7 Prince George 2020 20 Fauquier 2017 Fort Powhatan Solar 150 Prince George 2022 Palmer Solar Center 5 Fluvanna 2017 LLC 15.7 Shenandoah 2021 Gloucester Solar, LLC 19.9 Gloucester 2019 LLC 100 Southampton 2017 Sadler Solar 100 Greensville 2021 15 Suffolk 2020 80 Greensville 2020 Colonial Trail West Surry 2019 80 Halifax 2021 Spring Grove I 97.9 Surry 2020 25 Hanover 2020 Sussex Drive, LLC 20 Sussex 2017 2 Author’s Note: The most recent U.S. EIA Monthly Electric Generator Inventory can be located at the following link: https://www.eia.gov/electricity/data/eia860m/ Decommissioning Utility-Scale Solar Facilities 9 Facility Name MW Locality Date Facility Name MW Locality Date Briel Farm Solar 20 Henrico 2021 Oceana Solar 17.6 Virginia Beach 2017 Energix Leatherwood, LLC 20 Henry 2021 19.9 Westmoreland 2021 Rochambeau Solar 19.9 County 2021 Gardy's Mill Solar 14 Westmoreland 2020 Farm 20 Louisa 2016 Source: U.S. EIA Monthly Electric Generator Inventory, PJM Interconnection Queue, Virginia DEQ The median nameplate capacity for Virginia’s active utility-scale solar projects is 20.0 MW. Most of Virginia’s operating large-scale solar facilities are in the twelve to fifty MW range, with three out of every four facilities generating twenty-five or fewer megawatts of electricity. Solar projects that are “extremely” large by comparison are at times approved in phases: Spotsylvania Solar, for example, comprises four land parcels with separate project names and SCC Certificate Numbers. Hollyfield I and II, Buckingham I and II, and Scott I and II, respectively, fall in the thirteen to twenty MW range. Phased approvals for large projects are not necessarily the precedent: Some large facilities, such as the 800 MW Randolph Solar Project, have been approved under a single application. Figure 2 – Large-Scale Solar Capacity by Operating Year, as of July 20223 Year in Service < 2MW < 5 MW < 20 MW < 50 MW < 70 MW < 100 MW greater Total 1 1 2 1 1 6 3 5 6 1 15 3 1 4 1 1 1 3 1 7 2 3 1 14 1 4 5 1 4 1 16 1 2 2 4 Total 3 5 23 17 1 8 6 63 Source: U.S. EIA Monthly Electric Generator Inventory 3 Author’s Note: Due to the lack of state and federal data, the total number of large-scale solar facilities may be an undercount. Figures 1 and 2 synthesize the most reliable EIA, PJM, and DEQ data available to date. Decommissioning Utility-Scale Solar Facilities 10 REGULATORY FRAMEWORK The Virginia Clean Economy Act (VCEA) of 2020 created a mandatory renewable energy portfolio standard (RPS) under which the Commonwealth’s two publicly regulated utilities, Appalachian Power Company (ApCo)—a subsidiary of American Electric Power (AEP)—and Dominion Energy, shall produce electricity solely from non-carbon-emitting sources by 2050 and 2045, respectively. One key component of the VCEA establishes a goal of 16.1 gigawatts of electricity generation capacity by solar or onshore wind facilities, of which 35% must be provided by third-party power producers in the form of power purchase agreements (PPAs) (Va. Stat. §56-585.5, 2020). To satisfy this capacity target, Dominion Energy and AEP may enter into PPAs and buy renewable energy from a third party operating a solar or wind facility, develop new solar facilities subject to the approval of the State Corporation Commission (SCC), or acquire solar facilities that are operational or under construction from other developers. Before constructing a new solar facility, publicly regulated utilities must obtain a Certificate of Public Convenience and Necessity (CPCN) from the SCC (Va. Stat. §56-265.2, 2017). The state’s forecasted energy needs are sufficiently high (Shobe, 2021; PJM, 2022) and its solar industry sufficiently cost effective (Bruggers, 2021) that developers would likely continue to propose and build utility-scale solar facilities at a rapid pace even in the absence of the VCEA targets. Before developers can construct a utility-scale solar project with a capacity between 5 and 150 MW, they must receive a permit by rule (PBR) from the DEQ or, depending on a publicly regulated utility’s involvement and the developers’ own preferences, they may instead file for an SCC permit (20VAC5- 302-20). Developers’ PBR applications must include an air quality analysis, assessments of cultural, wildlife, and natural heritage resources, a site and context map, a public comment period, and a certification of local government approval (9VAC-15-60-30:120). Solar energy sites with a capacity less than five MW and occupying between two and ten acres undergo a less intensive approval process known as “Section 130” (9VAC-15-60-130). The Code of Virginia governs utility-scale solar PV system siting and decommissioning through multiple provisions, chiefly Sections 15.2-2316.6:2316.9, 15.2-2232, 15.2-2241.2, and 15.2- 2288.7:2288.8. Sections 15.2-2316.6:2316.9 of the Code of Virginia authorize localities to enter into siting agreements for solar facilities with a capacity greater than five MW and describe the required procedure for negotiating and signing such agreements. Section 15.2-2232 describes the contexts in which a locality must deem a proposed solar facility substantially in accord with its comprehensive plan. Section 15.2-2241.2 defines “decommissioning” and states the minimum requirements of a written decommissioning agreement into which a solar facility’s owner, land-lessee, or land- developer must enter with the locality. Sections 15.2-2288.7:2288.8 outline zoning permissions and special exception requirements for roof-mounted and ground-mounted solar development. Virginia House Bill 206 (2022) establishes land management measures for solar facilities on forested lands and USDA-designated prime agricultural soils. HB 206 will affect the future siting of utility-scale solar projects (Holmes, 2022; Lerch, 2022). It remains unclear whether HB 206 will have decommissioning implications for solar energy projects for which an interconnection request is not Decommissioning Utility-Scale Solar Facilities 11 received by December 31, 2024 (Va. Stat. § 10.1-1197.6; Weaver, 2022). As of August 2022, regulations pursuant to HB 206 remain under development. Summary of State Laws Indicating Mandatory and Discretionary Local Actions upon Utility-Scale Solar Facilities A locality must: Receive a written notice from a prospective solar developer that discloses their intentions to site a facility with a capacity greater than 5 MW within the locality (Va. Stat. §15.2.-2316.7). Either as part of its local legislative approval process or as a condition of approving a site plan, require the owner, lessee, or developer of the land on which a solar facility would be constructed to enter into a written agreement to decommission solar energy equipment, facilities, and devices. This written agreement must include the following terms (Va. Stat. §15.2.-2241.2): If the party that enters into such written agreement with the locality defaults in its decommissioning obligation, the locality has the right to enter the real property of the record title owner of such property without further consent of such owner and to engage in decommissioning. Such owner, lessee, or developer must provide financial assurance of such performance to the locality in the form of certified funds, cash escrow, bond, letter of credit, or parent guarantee, based upon an estimate of a professional engineer licensed in the Commonwealth, who is engaged by the applicant, with experience in preparing decommissioning estimates and approved by the locality. The locality cannot enforce a decommissioning cost estimate in excess of the projected cost of decommissioning calculated by a Virginia-licensed engineer. Observe the Commonwealth’s minimum definition of “decommission”: “The removal and proper disposal of solar energy equipment, facilities, or devices on real property that has been deemed by the locality to be subject to §15.2.-2232 and therefore subject to [§15.2.-2241.2]. “Decommission” includes the reasonable restoration of the real property upon which such solar equipment, facilities, or devices are located, including (i) soil stabilization and (ii) revegetation of the ground cover of the real property disturbed by the installation of such equipment, facilities, or devices” (Va. Stat. §15.2.-2241.2). Formally approve any negotiated siting agreement for a solar project via a majority of a quorum vote among the local governing body. A locality does not have to negotiate a siting agreement in order to approve a solar project (Va. Stat. §15.2.-2316.7). Decommissioning Utility-Scale Solar Facilities 12 If the locality proceeds with a siting agreement, it must: Schedule a public hearing once the locality’s governing body and the facility applicant agree on the terms and conditions of the siting agreement, prior to voting to approve the siting agreement (Va. Stat. §15.2.-2316.8). Enforce the signed siting agreement (Va. Stat. §15.2.-2316.8) and its existing ordinances and regulations, to the extent that they are not inconsistent with the siting agreement’s terms and conditions (Va. Stat. §15.2.-2316.9). Recognize that by signing a siting agreement, the locality deems the solar project substantially in accord with its comprehensive plan (Va. Stat. §15.2.-2316.9). If the locality chooses to create a local ordinance addressing the siting of solar facilities that generate electricity, the solar ordinance must: Be consistent with the provisions of the Commonwealth Clean Energy Policy (Va. Stat. § 45.2-1708). Provide reasonable criteria to be addressed in the siting of the facility. These criteria shall provide for the locality’s protection in a manner consistent with the Commonwealth’s goals to promote the generation of energy from solar and wind resources (Va. Stat. § 45.2-1708). Include provisions establishing reasonable siting requirements, and must include provisions limiting noise, requiring buffer areas and setbacks, and addressing the generating facility’s decommissioning (Va. Stat. § 45.2-1708). A locality is authorized to enforce the following at its discretion: A siting agreement created by the locality may include guidance or requirements including but not limited to mitigation of the solar facility’s impacts on the site, financial compensation to the host locality based on specific capital needs, and the solar developer’s assistance in deploying broadband (Va. Stat. §15.2.-2316.7). Hire and pay consultants in matters pertaining to the solar facility’s siting (Va. Stat. §15.2.-2316.8). Meet, discuss, negotiate, and enter a siting agreement with the applicant (Va. Stat. §15.2.-2316.8). Allow the net salvage value of the solar project’s equipment, facilities, or devices to be subtracted from the gross decommissioning cost (Va. Stat. §15.2.-2241.2). Allow the decommissioning cost estimate to factor (i.e., add) a reasonable allowance for estimated administrative costs related to a default of the owner, lessee, or developer, and an annual inflation factor (Va. Stat. §15.2.-2241.2). Create a local ordinance regulating the disposal of removed solar panels, in accordance with Decommissioning Utility-Scale Solar Facilities 13 other applicable laws and regulations affecting their disposal (Va. Stat. §15.2.-2288.7). Create a local ordinance addressing the siting of renewable energy facilities that generate electricity from wind or solar resources (Va. Stat. § 45.2-1708). Decommissioning Utility-Scale Solar Facilities 14 DECOMMISSIONING ORDINANCE WHERE TO STATE DECOMMISSIONING REQUIREMENTS A locality may formally state its decommissioning requirements via a: universally applicable zoning ordinance conditional use permit (CUP) special use permit (SUP) special exception (SEP) negotiated siting agreement It may also wish to apply some combination of the above. Some localities, for example, state their guiding minimum decommissioning requirements in a zoning ordinance, and note any further conditions in subsequent site-specific permits. As of July 2022, just over twenty-five percent of Virginia’s 133 counties and cities have codified utility-scale solar decommissioning requirements in a zoning ordinance. The use of locally-codified decommissioning ordinances is nearly twice as high among the Commonwealth’s thirty-seven localities with at least one operating utility-scale solar facility. Creating a zoning ordinance for decommissioning offers the locality a guiding document when considering whether to accept a proposed solar project. Codifying minimum decommissioning requirements in a zoning ordinance also helps developers more accurately evaluate costs early in the siting process. A zoning ordinance may be of further benefit to localities in cases where the host locality wishes to implement land- management practices concurrent with the project or land restoration measures after the project terminates. A locality’s comprehensive plan indicates preferences and priorities for land-use, as well as the county’s or city’s values and strategic goals. Localities generally verify that any discretionary decommissioning requirements are in accordance with their comprehensive plan, which may contain related goals such as renewable energy development, economic growth, or technological progress. REFURBISHMENT AND REPOWERING The construction of a solar installation generally requires costly, up-front site improvements whose value may extend beyond the life of the solar panels initially installed at the site. These improvements include site preparation and the infrastructure for connecting the facility to the grid. Because these infrastructure assets will continue to have value even as the original panels age, solar developers will often find it advantageous to repower an existing site by installing new panels and using the already developed land and power improvements. Given the likely advantages of a future repowering, developers and localities may find it advantageous to address the refurbishing or Decommissioning Utility-Scale Solar Facilities 15 repowering of EoL facilities in either the locality’s zoning ordinances or permit process language. Thus, in addition to requiring that operators maintain a decommissioning plan, localities could state any preliminary conditions for re-permitting the land use of the facility at the end of the initial expected life of the facility. Re-permitting can be valuable to both developers and localities, since the repowered facility can have substantially lower costs. Note that a locality’s renegotiation of its permission for a facility owner to continue using a parcel of real property for electricity generation is entirely different from any financial agreements between the power producer and off-taker as negotiated in a PPA, which does not involve the locality. A locality may use a permit or siting agreement to enumerate the minimum conditions a facility’s owner or affiliate should fulfill if they seek to repower the site at the project’s end (Wyatt, 2020). Relevant permit language may be as simple as an extension clause. Examples from locally approved utility-scale solar sites in Virginia include: “The expected life of the Project is thirty (30) years with extension possible upon mutual agreement with the landowners (“Project Life”).” (Conditional Use Permit Approval for Eastern Shore Solar, 80 MW; Accomack County) “The expected useful life of the Solar Farm Project is twenty-five (25) to thirty (30) years with an extension possible upon mutual agreement with the landowners (the "Project Life").” (Conditional Use Permit Approval for SunTec Solar Farm, 20 MW; Accomack County) “The Owner reserves the right to extend the Project instead of decommissioning at the end [sic] commercial operations with landowner permission and upon obtaining all necessary permits. If the Owner seeks to extend the life of the Project, they will decide whether to continue operation with existing equipment or to retrofit solar panels and power system with upgrades based on new technologies." (Special Use Permit Application for Caden Energix Gladys, LLC, 60 MW; Campbell County) “If the Solar Facility is operated for greater than 35 years after the Agreement Date and after the Termination Date, the Developer will use reasonable efforts to negotiate an extension of this Agreement with the County.” (Siting Agreement for Randolph Solar Project, 800 MW; Charlotte County) “The expected life of the Project is thirty (30) years with possible extension (“Project Life”).” (Conditional Use Permit Approval for Southampton Solar, 100 MW; Southampton County) “The facility has an estimated useful life of at least 35 years with an opportunity for extension depending on equipment replacements or refurbishments.” (Special Exception Permit Approval for Montross Solar, 20 MW; Westmoreland County) Decommissioning Utility-Scale Solar Facilities 16 RECOMMENDED DECOMMISSIONING ORDINANCE CONTENT A decommissioning ordinance typically states the decommissioning procedure a locality requires the site owner or operator to follow and specifies the appropriate contents of the decommissioning plan a developer must file with the locality before constructing the facility or receiving site approval. It also defines relevant legal terms and conditions and describes the minimum acceptable standards for land restoration. While Virginia law requires developers 4 to enter into a decommissioning agreement with their host locality, it does not mandate that localities develop a zoning ordinance stating decommissioning requirements. If a locality does not wish to codify specific decommissioning standards or the rights of the local governing body over the decommissioning process in its local laws, it may still find it beneficial to state them in its decommissioning agreement with the project owner. Procedure A decommissioning ordinance should state the conditions under which the facility’s owner must initiate decommissioning; namely, site abandonment or the end of the project’s life, and the time constraints by which decommissioning must be fully executed. Prior to the cessation of operations, a locality may require the project owner to submit a written notification that a site has reached the end of its project life, shall be non-operational, or is scheduled to be abandoned to the relevant government official, such as the zoning administrator, county administrator, county building official, or zoning and inspections director. At its discretion, the locality may further establish a procedure for setting the official timetable for decommissioning. Some Virginia localities, for example, have codified their right to issue a site- specific “County Notice” or “City Notice” (hereafter, “Notice”) that the locality deems the facility deactivated or abandoned and requires decommissioning to be fully executed within a set period of time from the owner’s receipt of the Notice. Others specify that upon their receipt of the project owner’s notice of non-operationality, or upon a zoning administrator’s subsequent site inspection and confirmation that it would be timely and appropriate to initiate decommissioning, the site must be fully decommissioned within twelve to twenty-four months. Localities may reserve the right to issue a Notice if a site fulfills the criteria which would qualify it as abandoned or deactivated even if the facility’s owner or operator has not submitted a written notification of the site’s non-operationality. It is considered good practice to allow a window for the owner or operator to appeal for approval to repair a non-operational site that has not reached the end of its project life upon receiving a Notice. Should the need arise, a locality may also choose to allow its relevant local governing body, such as its Board of Supervisors, to grant a decommissioning extension or extensions. Decommissioning Utility-Scale Solar Facilities 17 Terms and Conditions Decommissioning: Localities generally define “decommissioning” as the removal and proper disposal of all above-ground hardware, structures, and solar infrastructure along with removal of part or all below-ground equipment upon a project’s abandonment, termination, or after its anticipated useful life, in accordance with the decommissioning plan submitted to and approved by the locality. Such a definition is consistent with that provided in §15.2-2241.2 of the Code of Virginia. Based on NREL guidance and definitions implemented by localities in Virginia and other states, an appropriate decommissioning specification may also include the reclamation of access roads and the restoration of the land and related disturbed areas to agreed-upon conditions for subsequent use via soil decompaction, soil stabilization, re-seeding, or revegetation. Based on site characteristics, it may be necessary to delay the removal of any stormwater structures which should remain in-place during the hardware removal and land restoration phases. In some cases, a locality may deem that certain installations, such as stormwater structures or access roads, constitute real improvements to the site based on its future land-use, and allow such installations to be exempted from decommissioning. Abandonment, Deactivation, and End of Life: Virginia localities with abandonment or deactivation clauses in their decommissioning ordinances typically identify a solar facility as abandoned if it ceases to generate electricity for a continuous period of twelve months, with some localities’ definitions ranging between six and twenty-four months. To protect against abandonment in the construction phase, localities may also include language quantifying the number of months a developer has to reach an operational status before the conditional use permit must be renegotiated. For example, a locality may specify that a solar facility shall held as abandoned if construction on an initiated project remains incomplete twenty-four months after the locality has approved the final site plan, with exceptions granted for interconnection delays due to the rolling backlog of requests in the PJM queue. To avoid legal ambiguity, it is crucial that a decommissioning ordinance clearly distinguish between the conditions of inactivity which constitute abandonment and those that do not. These conditions are covered in greater detail in the “Legal Framework” section of this paper. Financial Considerations: A decommissioning ordinance will generally state which forms of posted financial assurance the locality considers acceptable and should specify that financial assurance must cover the full cost of decommissioning. It may allow, explicitly disallow, or remain silent on whether a developer may factor part or all of hardware’s anticipated salvage value into the estimated net cost of decommissioning. To guard against abandonment or financial insolvency early in the project, a locality may require a developer to provide proof of liability insurance for the solar facility before initiating construction. Decommissioning Utility-Scale Solar Facilities 18 Rights of the Locality Regarding the Project Site: The locality should specify its right to enter and remove the facility if decommissioning protocols have been activated but the owner or operator has failed to fulfill them within a timely manner. Legal actions and remedies available to the locality in such a case are further described in the “Procedural Framework” section of this paper. A locality may require that it be granted the right to periodically enter and inspect the solar facility during decommissioning. It may also wish to specify a framework by which the site owner or operator should coordinate with local emergency services to train for responses to onsite emergencies, provide site access, and develop an Emergency Operations Plan throughout the facility’s operational period. Land Management and Restoration Land management requirements for a utility-scale solar site are more often specified in a siting agreement or local land use permit rather than in a decommissioning ordinance. Even so, it is appropriate for a decommissioning ordinance to state that a facility owner or operator must comply with state and federal regulations for sediment and erosion control during site construction, operation, and decommissioning. Because Virginia state law allows localities to enact sediment erosion and control standards that are more stringent than those mandated by the state (Va. Stat. §62.1-44.15:51), it may be prudent to reference any such regulations in the decommissioning ordinance. Measures for protecting wetlands during decommissioning and maintaining watershed nutrient load standards when amending soil should be similarly noted, where applicable and necessary. Land restoration may include such measures as soil regrading, the application of soil amendments, reseeding, revegetation, and the removal of all access roads and internal paths, or those deemed relevant. It may also be necessary to re-grade, backfill, and re-stabilize areas significantly impacted by the removal of any site components. The de-compaction of both topsoil and subsoil horizons may be necessary as agreed to by the landowner, consistent with the future use of the land or as required by then-current state laws and regulations. The heavy machinery used to install and dismantle utility-scale solar PV systems can compact topsoil and subsoil across the disturbed land area. While amending these soils with organic fertilizers and replanting with native vegetation to the extent feasible 5 during and after the solar project’s life are excellent land management and restoration practices (Horowitz, Ramasamy, Macknick, & Margolis, 2020; Walston et al., 2018), replanting alone will not reduce the bulk density of compacted soils beyond a few inches over twenty to thirty years. Deep-rooted plants such as alfalfa and switchgrass and chemical amendments such as gypsum may increase land productivity over time, but they cannot in themselves loosen highly compacted topsoils and subsoils. If agriculture is the desired 5Author’s Note: Depending on site characteristics, it may be quite challenging to maintain native vegetation directly around active panel displays because of (1) the mowing standards by which a project owner must abide to fulfill safety and access requirements and (2) short- and medium-term erosion and sediment control measures (L. Daniels, personal communication, August 1, 2022). Native vegetation is encouraged where practicable. Decommissioning Utility-Scale Solar Facilities 19 post-project land use, the locality should require the party responsible for decommissioning to mechanically loosen and till the soil prior to revegetation. Where decompaction is necessary, it is crucial that tillage is applied under the appropriate soil- moisture regime, as ascertained by the site engineer. Overly dry soil will prevent the shank used for tillage from cutting through the ground, and may cause a chisel plow, rototiller, or shank ripper to eject large chunks of intact soil. Conversely, a shank will pass too smoothly through overly wet ground and fail to shatter compact soil. The extent of tillage necessary will vary site-to-site and can be easily determined by measuring the bulk density and texture of the upper inches of soil and generating an estimate of the root-limiting bulk density, which is well-established in agronomic literature. If possible, topsoil should be salvaged and re-applied in a loose, rough, and undulating manner after tillage or cut-and-fill measures have been applied. These decompaction and soil reconstruction practices sufficiently restore property for silviculture or hay-land pasture use, but for USDA NRCS-designated prime farmland, NRCS prime farmland and state-designated “important agricultural soils”, additional measures may be required to restore the land to its prior productivity (L. Daniels, personal communication, July 5, 2022). Decommissioning Plan The decommissioning plan is typically submitted for review concurrent with a solar facility’s site plan. A locality’s Planning Commission should review the decommissioning plan no less frequently than once every five years after its initial approval. Based on guidance from existing decommissioning plans, the North Carolina Department of Environmental Quality (2022, p. 12), and the Virginia-based developer SolUnesco (Maamari, 2018), a decommissioning plan should contain: Contact information for the landowner, site operator, and entity responsible for decommissioning. This information should include the relevant parties’ names, titles, physical mailing addresses, email addresses, and business names. The anticipated project life, along with the current land-use (e.g., industry, agriculture, silviculture) and the proposed land use (i.e., utility-scale solar development). A cost estimate for decommissioning including the anticipated present value, an explanation of the cost calculation applied, and a description of the financial assurance to be posted for decommissioning that has been deemed acceptable by the locality’s relevant legal authority, such as the County Attorney, including which legal entity shall establish the surety, when it shall be established, and how the locality shall access it should the need arise. Decommissioning Utility-Scale Solar Facilities 20 A decommissioning narrative describing the procedure through which decommissioning will occur, a schedule for this procedure which includes the total estimated length and the estimated duration of each activity, the disposal methods which shall be applied (e.g., hazardous waste vs. non-hazardous waste disposal, landfilling, reuse, recycling) in accordance with then-current state and federal regulations, and a description of the expected site conditions once solar facilities have been removed. A salvage plan describing the procedures by which equipment will be recycled or resold in licensed secondary markets, where possible. A restoration plan detailing the quality to which the land will be returned and the actions necessary to accomplish this. Current decommissioning plans in Virginia generally describe the full removal of above ground support structures, as well as below ground piles where practical. Removable hardware includes but is not limited to solar panels, panel trackers, anchors, supports and mounts, inverter buildings, electrical conductors, electrical cables, substation components, control cabinets, and fencing. Below- ground components must usually be removed to thirty-six inches below finished grade or down to bedrock, whichever is less. For a below-ground component such as a steel piling extending deeper than thirty-six inches, the owner would be obligated to remove at least the upper portion of the piling. In practice, because the piling is a single component, facility owners will remove the full module. In the event that a sub-surface component breaks during removal, is embedded in bedrock, or cannot otherwise be recovered, existing special use permits specify that the piece should be excavated to a depth of at least thirty-six inches, with the remainder left in place and covered with an appropriately-reconstructed soil profile (SolUnesco, 2018; L. Daniels, personal communication, August 1, 2022). Some local governments allow a subsurface component to remain if the landowner submits a written request for a waiver to the relevant local legislative body. Solar waste should be recycled to the maximum extent feasible where such markets exist. While current research indicates that solar recycling is generally unprofitable in comparison to landfilling and without additional legislative protections (D’Adamo, Miliacca, & Rosa, 2017; Malandrino et al., 2017; Lunardi et al., 2021), several European solar recycling paradigms have been shown to be cost effective (Choi & Fthenakis, 2010; McDonald & Pearce, 2010) and impressive progress has been made in designing full-module recycling systems (Klugmann-Radziemsa, 2012; Cucchiella, D’Adamo, & Rosa, 2015; Latunussa, Ardente, Blengini, & Mancini, 2016; Heath et al., 2018; Faircloth et al., 2019; Markert, Celik, & Apul, 2020; Peacock, 2021; Flores et al., 2022). Because comparable solar waste markets, collection systems, and recycling facilities have not yet been realized in the mid-Atlantic United States (Ovaitt, Mirletz, Seetharam, & Barnes, 2021), decommissioning ordinance clauses which recommend solar recycling are beneficial but not enforceable. Recent guidance from the North Decommissioning Utility-Scale Solar Facilities 21 North Carolina DEQ to its state’s localities hosting utility-scale solar projects encourages the economic development of recycling and reuse streams for end-of-life solar panels (Scott, 2022). Based on the federal government’s Resource Conservation and Recovery Act of 1976 (RCRA), solar panels and system components which qualify as recyclable material may also be subject to regulations for solid waste or potentially hazardous waste, depending on the content of the PV module (40 C.F.R. §§ 261.2(a)-(c); 42 U.S.C. § 6903(27); 40 C.F.R. § 261.2(e)(ii)). For example, one square meter of a thin-film cadmium telluride (CdTe) photovoltaic module contains about seven grams of cadmium—about as much as a 4.6 cubic inch nickel cadmium (NiCd) flashlight battery (note also that NiCd, being subject to the EPA’s Universal Waste Rule, is best disposed of via recycling) (Zweibel, Moskowitz, & Fthenakis, 1998, pp. 1-2; Industrial Economics, 2004, p. 23). Research conducted by the National Renewable Energy Laboratory suggests that the primary federally approved method for testing solar panel toxicity, the Toxicity Characteristic Leaching Procedure (40 C.F.R. §§ 261.11, 261.24) has variable results depending on the sampling location, removal method applied, and laboratory used to analyze results (Curtis et al., 2021, p. 8; TamizhMani et al., 2018). The EPA recommends the appropriate recycling or reuse of hazardous materials to reduce soil pollution and the consumption of primary resources (EPA, 2021); thus, the activation of an RCRA or TCLP hazardous waste designation should be understood as ensuring responsible waste management rather than threatening environmental quality. If desired, a locality may adopt regulations into their zoning ordinances that installed panels meet internationally recognized standards of material quality. Such PV modules will still likely fall under RCRA’s purview. Any hazardous materials should be removed and disposed of in accordance with then-current local, state, and federal regulations. When solar hardware is recycled, resold in a licensed secondary market, or otherwise appropriately disposed of, it is good practice for a developer to retain the manifests provided by such sites which document the quantities and descriptions of the delivered materials. Localities seeking additional guidance on PV material management may consider reviewing the standards required in Washington, California, New Jersey, and North Carolina (NYSERDA, 2022). Decommissioning Utility-Scale Solar Facilities 22 LEGAL FRAMEWORK FOR LOCALITY IN CASE OF ABANDONMENT Non-financial mechanisms can assure PV system decommissioning by defining a legal framework which indemnifies the locality in the event of abandonment. These mechanisms often resemble the regulations applied to ensure the decommissioning of telecommunications installations. The New York State Energy Research and Development Authority (NYSERDA) identifies these key mechanisms as an abandonment and removal clause, a special permit application, and a temporary variance process. ABANDONMENT AND REMOVAL CLAUSE Localities should clearly define non-performance and abandonment and delineate the timeframes by which (i) a project’s status is considered “abandoned”, (ii) an owner or operator may appeal an abandonment status and/or correct the solar site, and (iii) the locality may access financial assurance in the event that an abandoned project has not been decommissioned in a timely manner. An abandonment and removal clause may outlay the terms for civil penalties and fines levied on the owner or operator of an abandoned site. The locality may further state its ability to impose a lien on such a property to recover decommissioning costs in cases where financial assurance is inaccessible or otherwise insufficient to remove the solar facility. Both “abandonment” and “removal” should be clearly defined to eschew any legal ambiguity. The timeframe allotted for decommissioning an abandoned or end-of-life project should be sensitive to the solar facility’s size, location, and complexity. Localities should also specify the contexts in which it is permissible for a solar site to remain continuously inactive for an extended period without being designated abandoned. An analysis of decommissioning ordinances enacted by Virginia localities indicates that acceptable non- abandonment scenarios may include but are not necessarily limited to: A force majeure event that has occurred or is occurring, which will prevent the facility from resuming operations within twelve months; A project in the process of being repowered; A project pending completion of construction due to a backlog of cases or service requests in the PJM interconnection queue; A situation in which the owner or operator can provide evidence to the relevant local governing board, such as the Board of Zoning Appeals or Board of Supervisors, that the site’s period of continuous inactivity is due to circumstances beyond their control and the facility has not been abandoned; and Decommissioning Utility-Scale Solar Facilities 23 An appeal of the County Notice or City Notice within a set time from its receipt (e.g., 45 days) in which a facility owner explains the reasons for operational difficulty and provides a timetable for corrective action which the locality deems reasonable. SPECIAL PERMIT APPLICATION In the absence of a solar ordinance that requires a decommissioning plan, a locality may, as a condition of SEP/CUP approval, require the Final Site Plan review to include its approval of a complete and accurate decommissioning plan (NYSERDA, 2022). The locality may also require a conceptual decommissioning plan as a condition of special permit approval, understanding that component-specific details and site design may not be finalized until the Final Site Plan review. Codifying a decommissioning plan requirement protects the locality’s interests in that (i) the locality is authorized to request any significant revisions to the decommissioning plan or procedure before approving the Final Site Plan, and (ii) the local government may apply the approved, complete decommissioning plan as a framework for assessing decommissioning noncompliance at the end of a project’s life or in the case of abandonment. TEMPORARY VARIANCE PROCESS Issuing a land variance or special or conditional use permit for a utility-scale solar facility allows the locality to exercise its regular zoning enforcement authority to remove an abandoned or otherwise non-operational facility. It further allows the locality to re-license the facility, if desired, once the project term expires (NYSERDA, 2022). EXAMPLES Abandonment clauses protecting the locality against bearing decommissioning costs state the point at which the locality may access financial assurance, enter the site without the owner’s site to complete decommissioning, or pursue other legal action for failing to decommission the site within the agreed-upon period. Note that while the locality’s right to enter a solar facility without the owner’s consent and engage in decommissioning is protected under Section 15.2.-2241.2 of the Code of Virginia, it is considered good practice to restate this right in a decommissioning ordinance, siting agreement, and/or condition for land use. Relevant examples from Virginia localities’ solar decommissioning ordinances are shown below, with emphasis added: (a) Legal action and liability statements: “…the county may pursue legal action to have the facility removed at the expense of the facility owner, site owner, or operator, each of whom shall be jointly and severally liable for the expense of removing or repairing the facility.” (Appomattox County Code, §19.6-97.6; Halifax Decommissioning Utility-Scale Solar Facilities 24 County Code, §53-160; Prince Edward County Code, §7-114) “If the owner or operator fails to remove or repair the unsafe solar energy project, [the county] may pursue a legal action to have the project removed at the owner’s or operator’s expense.” (Dinwiddie County Code, §22-234.68; Henry County Code, §21-1807; Southampton County Code, §18-367) “If the facility is not removed within the specified time after the County Notice, the County may cause the removal of the facility with costs being borne by the project owner.” (Piedmont Environmental Council utility-scale solar development policy draft for Culpeper County, unadopted) “The surety shall be sufficient to indemnify the County if it incurs costs to rectify any violations of applicable codes, or to remove obsolete or abandoned renewable energy facilities in the event the applicant, its successors or assigns, fails to comply with any condition of the permit, which the County may undertake to do if the applicant, its successors or assigns fail to do so within 90 days of notice from the Zoning Administrator of a violation of any provision of this chapter or any of the permit conditions imposed by the Board.” (Rappahannock County Code, §170-64) “Within three hundred sixty-five (365) days of the date of abandonment or discontinuation, the owner of the system shall physically remove all components of the solar energy facility. If not removed within the allotted time, the county may have it removed at the expense of the property owner.” (Rockingham County Code, §17-607) “If the owner or operator fails to either notify the County Administrator or a designee that the large-scale solar facility is an abandoned large-scale solar facility or to decommission the abandoned large-scale solar facility upon request of the County, the County may, in addition to any other remedies available under the law, cause the abandoned large-scale solar facility to be decommissioned and recover against the bond posted pursuant to § 165-174E the costs of such decommissioning.” (Shenandoah County Code, §165-174H) “If removal to the satisfaction of the county does not occur within one (1) year from the date of abandonment then the county may remove and salvage the component(s) and all supporting equipment using the decommissioning surety. Should the surety fail to adequately fund the decommissioning of the site(s) the county will recover any difference, including attorney fees and any zoning violation fines, if applicable, through legal action against the designated responsible party or parties identified in the decommissioning plan, applicant, and/or landowner(s) party to the SUP, and their respective successors and assigns.” (Spotsylvania County Code, §23.4.5.7) (b) Entry right statements: “If the owner, lessee, or developer defaults in the obligation to decommission the facility, the county has the right to enter the real property without further need of consent of the owner to engage in decommissioning.” (Alleghany County Code, §66-762; Gloucester County Code, §9-28) Decommissioning Utility-Scale Solar Facilities 25 “If the party that enters into such written agreement with the County defaults in the obligation to decommission such equipment, facilities, or devices in the timeframe set out in such agreement, the County has the right to enter the real property of the record title owner of such property without further consent of such owner and to engage in decommissioning.” (Campbell County Code, §22-32; Isle of Wight County Code, §5-5003) “If the terms of the decommissioning agreement are not met, the county may collect the surety and may enter the site to remove the equipment, apparatus, or any other personal property or improvements placed on the real property as a part of, or in connection with, the solar facility as it deems appropriate.” (Brunswick County Code, §23-407) “If the facility owner/operator fails to remove the installation in accordance with the requirements of this permit or within the proposed date of decommissioning, the County may collect the bond or other surety and the County or hired third party may enter the property to physically remove the installation.” (Amelia County Code, §325-34.2) “In the event the holder of a conditional use permit for a utility solar energy facility breaches the obligations put forth in the written agreement, the city may utilize the financial assurance, in whole or in part, to enter the property and engage in decommissioning the site without the owner's consent.” (City of Chesapeake Code, §13-2702) “If the applicant, its successor, or the property owners fail to decommission the solar energy facility within six (6) months,6 the County shall have the right, but not the obligation, to commence decommissioning activities and shall have access to the property, access to the full amount of the decommissioning surety, and the rights to the solar energy equipment and materials on the property.” (Prince George County, draft solar energy facility siting policy, unadopted) 6 Author’s Note: Emerging best practice is to allow the facility owner a minimum of twelve months to fulfill all decommissioning requirements. Decommissioning Utility-Scale Solar Facilities 26 FINANCIAL ASSURANCE Whether as part of a decommissioning plan, a zoning ordinance, or a condition of the solar facility’s approval, a locality should require the project’s owner or affiliate to post financial assurance (FA) equal to the full amount of the estimated decommissioning costs. These costs generally include labor, infrastructure removal and transportation, recycling, disposal, and site restoration and reclamation (Curtis et al., 2021). Localities frequently interchange the term “surety” with “financial assurance”. While “surety” technically refers to the person who assumes direct liability for another party’s debt or other legal obligation upon the closing of the land-use agreement (Cornell Law School, 2022; Garner, n.d.), substituting the terms “surety” or “surety amount” for FA is an accepted practice. The amount, type, and posting time(s) of FA will depend on the size, complexity, and duration of operation of the solar facility, as well as the site owner’s access to capital; as such, FA varies across utility-scale solar projects. It is standard best practice to require that the surety amount be adjusted at least every five years based on a Virginia-licensed engineer’s re-evaluation of decommissioning costs. State law also allows the annual application of an inflation factor to the original decommissioning cost estimate so that the total decommissioning security reflects real market costs. Localities should be aware that removal costs may both fluctuate and can change at different rates than the market rate of inflation. An engineer’s regular recalculation of the decommissioning cost estimate may thus provide a more precise estimate of site removal costs than applying an inflation factor would. If decommissioning costs are periodically reassessed, it is redundant to include an inflation factor. FA should also always be posted until the end of the decommissioning process, regardless of the point at which the locality requires the project owner to begin posting it. As such, a solar decommissioning regulation that contains language resembling the following is encouraged: “The full amount of the specified financial assurance must remain in full force and effect until the Project is decommissioned and any necessary site restoration is completed,” “At its option, the County / City may require the financial assurance amount change based on the net cost of decommissioning,” and, “In the event of abandonment or failure to decommission, the County / City shall have access to the full amount of the specified financial assurance.” Decommissioning Utility-Scale Solar Facilities 27 WHAT KINDS OF FINANCIAL ASSURANCE SHOULD A LOCALITY ALLOW? It is in both the locality’s and the project owner’s best interest to provide the local government with the necessary security for full decommissioning at the lowest cost to the developer. The most appropriate FA mechanism may change in cases where a solar project comes under new ownership, as the latest holder may have a different level of access to capital (MDOC, 2018, p. 7). While all FA types are capital-intensive, some require considerable expenditures for annual maintenance and may impose undue financial hardship on the facility owner or affiliate. Similarly, others may be inefficient to apply where the developer is a well-established entity with very strong financial backing. Commonly accepted financial assurance mechanisms and the situations in which they may be most useful to a locality are described below. A locality should always require that any third-party financial institutions or bank accounts involved in maintaining and procuring the FA are federally insured. Trust Funds Financial institutions employ a Trustee to manage trust funds on behalf of the project’s owner. Trust funds may be used alongside additional FA mechanisms, such as a surety bond or letter of credit. A trust fund is both capital-intensive—the developer often must pay all or much of the decommissioning cost into the trust fund at the project’s outset, as well as the administrative costs for the Trustee investing and managing the fund—and relatively risky, as the trust fund is susceptible to market volatility. Any return on the invested funds that outpaces general inflation or industry- specific increases in decommissioning costs would reduce capital costs for decommissioning faced by the developer, who may then be able to receive funds in excess of the decommissioning cost. If decommissioning costs rise unexpectedly or the trust fund performs poorly in the investment market to the point that its worth is less than the decommissioning cost estimate, the developer will need to deposit additional payments to true up the security (Richards, n.d.). Thus, the project owner or developer may incur the additional burdens of remaining in contact with the Trustee managing the trust; filing riders or amendments in the Trust Agreement between the solar site and the financial institution and notifying the locality if the Trustee or financial institution changes name or undergoes a merger; constantly monitoring the trust’s value; and verifying that administrative fees are not eroding the trust fund’s value (EPA, n.d., “RCRA Fact Sheet: Trust Fund”). If the solar project changes ownership, the trust fund will not automatically transfer to the successor company. Cash Escrow A solar project owner or developer may deposit funds into a cash escrow account maintained by a federally insured financial institution. Once the project owner fulfills the decommissioning requirements set by the locality at the end of the facility’s life, the bank will release the funds deposited in the cash escrow account back to the developer. If the solar project is abandoned or insufficiently decommissioned, the bank will grant the locality access to the cash escrow account to complete the decommissioning process. A locality may require the developer to post full funding for Decommissioning Utility-Scale Solar Facilities 28 decommissioning at the beginning of the project’s life or according to a fee schedule set in the use permit approval. While a cash escrow account is relatively simple to administer, it imposes high costs on the facility’s owner. Developers with strong credit and capital access are less likely to implement cash escrow as their preferred FA mechanism; in fact, it may be the only surety option available to smaller developers with limited credit access (MDOC, 2018, pp. 8, 30). Similar to the restrictions of a money market account, the funds held in cash escrow remain inaccessible to the solar facility’s owner or affiliates for the duration of the project. Prior research suggests cash escrow accounts are sufficiently costly to utility-scale solar developers that, if a locality requires cash escrow but disallows salvage value, a developer is likely to withdraw the project altogether (Maamari, 2018). Thus, localities stipulating cash escrow as a financial assurance mechanism should (i) establish a preset schedule of deposits to the account, so the project owner does not bear decommissioning assurance as an upfront cost, and (ii) include a salvage credit so account maintenance costs are not prohibitively high early in the project life. Letter of Credit A letter of credit (LC) is a federally insured financial institution’s legally-binding written guarantee that it will pay a beneficiary—here, the locality—under specified conditions, such as if the developer defaults on decommissioning or abandons the solar project, until the LC’s expiration date, usually one year from issuance (U.C.C. § 5-103(a), 1995), unless the developer renews the LC annually. For the term that the LC exists, the issuing bank may impose an unsecured credit pool (UCP) lien or Uniform Commercial Code (UCC) lien on the solar developer equaling the amount of the LC. The LC thus appears as a footnote on the solar company’s balance sheet indicating its future decommissioning liability and may impact the company’s ability to access credit markets (Freeman, 2020). Should the solar company fail to decommission the project in accordance with the terms of its contract with the locality, the locality will receive sufficient decommissioning funds from the issuing bank. The solar company must then reimburse the issuing bank for any payments to the locality. A financial institution will typically require a solar company seeking a letter of credit to post collateral—cash or non-cash—equaling between 0.5% and 1% of the LC’s face value, and to establish a standby trust fund from which the bank would pay for decommissioning and land restoration activities. The letter of credit and standby trust fund may be issued by different financial institutions. The LC’s issuing and maintenance costs vary with the solar developer’s or owning firm’s creditworthiness: annual renewal fees range from one percent to five percent of the letter of credit’s face value (MDOC, 2018; Richards, n.d.), and can thus become quite costly. For example, if a bank’s renewal fee is 3% per annum on an LC with a $435,000 payout, the project owner would need to pay more than $13,000 annually simply to maintain the surety amount. Despite these conditions— collateral, renewal fees, and the establishment of a standby trust fund—letters of credit may be Decommissioning Utility-Scale Solar Facilities 29 relatively less expensive than posting cash escrow, even for less financially solvent developers. Moreover, because a letter of credit is publicly filed, a locality can verify its value more easily than it can a cash escrow account (Nusgart, 1998). If a locality allows decommissioning security to take the form of a letter of credit, it should (i) specify an irrevocable LC, (ii) include an evergreen clause, and, as in all cases, (iii) abide by the typical precautions associated with storing and implementing a legally binding financial document. While an irrevocable LC cannot be revoked or conditionally altered by the bank or the project owner, the payout amount guaranteed by the LC should accurately reflect changes in the estimated cost of decommissioning. If decommissioning costs significantly increase or decrease, adjustments in the payout promised by the irrevocable LC can only occur with the explicit agreement of the project owner, the beneficiary, and the issuing bank. Requiring an irrevocable LC thus ensures that no changes can be made to the decommissioning security without the locality’s knowledge and consent. Requiring that an LC have an evergreen clause causing the FA’s automatic annual renewal offers further assurance to the locality in that its access to decommissioning surety from the LC’s original signing is not compromised. Because the solar company would already need to maintain the LC year-to-year, an evergreen clause poses no unanticipated financial burden on the developer. Finally, since the LC is a cash instrument, the issuing bank’s liability is strictly enforceable (Downey, 1988, p. 6): The locality can access the standby trust fund only upon presenting the original, signed LC and any other documents required by the financial institution. As such, the locality should maintain the original LC in a secure location inaccessible to the public (EPA, n.d., “RCRA Fact Sheet: Letter of Credit”). Surety Bond Guaranteeing Payment or Performance In a surety bond agreement, the Surety—a third-party insurer such as a bank insurance company— agrees to complete decommissioning or uphold the project developer’s financial obligations for the landowner’s or locality’s benefit if the developer defaults, abandons the project, or otherwise fails to decommission the solar facility (Garner, n.d.; Curtis et al., 2021). To access the surety bond, a locality typically must notify the Surety that the solar company, or Principal, failed to decommission the site. After verifying the locality’s claim, the Surety will pay decommissioning funds into a standby trust fund for the locality’s use. The Principal must reimburse the Surety for any outstanding decommissioning costs. Different types of decommissioning surety bond exist, the most common being a payment or financial guarantee bond. Bond companies will less frequently extend a performance bond, which largely resembles a payment bond in structure and execution except that the Surety may decide whether to put an activated decommissioning bond in a standby trust fund or use the bond to hire contractors and carry out the decommissioning requirements itself (Richards, n.d.). A solar project owner cannot combine a performance bond with other financial assurance mechanisms, but a payment bond or Decommissioning Utility-Scale Solar Facilities 30 financial guarantee bond can be used in conjunction with other FA options. All surety bond types are generally paid into a standby trust fund if the locality informs the bond company that the project owner has failed to decommission (EPA, n.d., “RCRA Fact Sheet: Surety Bond”). To obtain and maintain a surety bond, the Principal must pay the bond company an annual premium equaling a percentage of the decommissioning bond amount (MDOC, 2018; Maamari, 2018). This annual premium usually ranges from 1 to 3% of the decommissioning bond’s face value; of course, if a developer has poor credit or the bank assesses a solar project as relatively riskier, the bond premium could rise as high as 15% (Freeman, 2020). Although circumstances vary across projects, surety bonds do not have the same credit rating implications as letters of credit and may thus be relatively less costly for a developer while still providing the same level of decommissioning security to a locality. Insurance A solar company may take out a fully-funded or “finite” insurance policy equaling the net present value of its expected decommissioning liability. It pays this liability amount either through a single up-front insurance premium, or in phases of premiums paid during some portion or all of the solar project’s life. As a result, the solar company pays for decommissioning twice: Once through the insurance policy, and again upon actual decommissioning. The locality may then direct the insurer to reimburse the solar company for incurred decommissioning costs once the removal and restoration terms have been fulfilled (Richards, n.d.). Another insurance mechanism, a risk transfer policy, moves the solar company’s decommissioning liability to the insurer through the company’s payment of a premium to the insurer throughout the project’s life (EPA, n.d., “RCRA Fact Sheet: Insurance”). Risk transfer policies more commonly occur in oil and gas decommissioning projects, for which temporal uncertainties regarding a project’s life and unknown total liabilities during and after closure could cause the project owner or operator to fail to perform decommissioning due to financial distress (Barnes, 2018). Solar decommissioning is far more straightforward: the process is less costly, the project life is pre-negotiated, the facility is relatively smaller, hardware removal has few engineering and environmental complexities, and land restoration requirements can be fulfilled within weeks to months. A risk transfer policy is not inappropriate in a solar decommissioning context, but insurers may prefer underwriting fully-funded insurance policies, which more effectively limit the insurer’s risk exposure (EPA, n.d., “RCRA Fact Sheet: Insurance”). Despite their expense, insurance policies offer some flexibility: They do not require the establishment of a standby trust fund and can be paired with additional financial assurance mechanisms. If decommissioning costs change, the solar company can alter the policy’s face value relatively easily. For increases in the decommissioning cost estimate, the company could also pair the insurance policy with another locality-approved FA mechanism. Decommissioning Utility-Scale Solar Facilities 31 A locality allowing decommissioning insurance should structure necessary requirements of the policy among the decommissioning conditions of the use permit, and should exercise due diligence by monitoring an active policy. Similar to other FA mechanisms, the insurance policy would fail to hold in the event of decommissioning default if the insurer canceled the policy or became bankrupt. By design, an insurer can only cancel a policy if the company fails to pay its premium. Thus, the locality should monitor both the insurer’s financial solvency and that the solar company pays all its premiums. Any insurance policies for decommissioning should be subject to the locality’s approval. Based on an overview of existing utility-scale solar ordinances in Virginia and an analysis of the EPA’s recommendations for closure and post-closure insurance, a locality accepting decommissioning insurance should require the following conditions to hold: The insurance policy should contain a provision transferring the policy to the successive owner or operator of the solar facility if it is sold by the original policyholder; The insurer cannot cancel, terminate, or fail to renew the policy except for failure to pay the premium; The policyholder must send a notice of cancellation to the relevant local/state authorities upon failure to pay the premium; and If the insurer cancels the policy, the owner or operator must obtain an alternate form of financial assurance, subject to approval by the locality. The locality may specify these requirements in the use permit for the solar facility, in its decommissioning ordinance, if it exists, as a condition of the decommissioning insurance approval process, or where otherwise relevant and prudent. Guarantee by an Investment-Grade Entity An investment-grade entity holds long-term unsecured debt obligations rated at least BBB- or above from S&P Global Ratings and Baa3 or above from Moody’s Investors Service, or holds a comparable credit rating from a currently registered Nationally Recognized Statistical Ratings Organization (NRSRO) such as Fitch or Egan-Jones (SEC, 2017; SEC, 2022). A solar company which qualifies as an investment-grade entity could extend a parent guarantee or promissory letter as proof for the locality that it will fulfill its decommissioning responsibilities. Alternatively, if a solar developer has a sufficiently large, stable, and tangible net worth to pass a corporate financial test, a locality may waive the requirement to post decommissioning security, accepting the financial test as a demonstration of the company’s ability to self-insure decommissioning costs. Decommissioning Utility-Scale Solar Facilities 32 Corporate Financial Test A company meeting the requirements of a corporate financial test indicates its ability to self-insure for the cost of decommissioning based on the magnitude and soundness of its net worth and working capital. Passing a corporate financial test is not equivalent to a legally binding guarantee that an investment-grade company will uphold its decommissioning requirements, but because a company can only pass the test if its net worth is six times the sum of the estimated decommissioning and land restoration costs it will face, it is unlikely that a company which passes the test would go bankrupt in the next year. As long as a company continues to demonstrate financial solvency by passing the corporate financial test, the locality may waive the developer’s requirement to post decommissioning security through a third party without exposing itself to any significant risk of bearing decommissioning costs for an abandoned project. The following corporate financial test procedure is based on the EPA’s guiding practices on decommissioning security for end-of-life RCRA Subtitle C facilities. Subtitle C sites, such as deactivated nuclear power plants or municipal solid waste landfills, involve the containment of hazardous waste. While end-of-life PV panels may be subject to RCRA disposal guidelines, solar farms themselves are neither toxic nor pollutive of air, water, or soil resources, and follow decommissioning processes quite different from RCRA Subtitle C facilities. The EPA’s guiding practices for corporate financial tests in non-analogous decommissioning situations provide a useful framework of the financial proofs which solar developer should provide if they seek valid alternatives to posting working capital as decommissioning security during the project’s life. There are two separate tests, or “alternatives” within a corporate financial test. Each alternative has four criteria. To pass a corporate financial test, a company must fulfill all four criteria within a single alternative. Criteria one and two are the same across both alternatives: Alternative I Criterion 1: The company must have a tangible net worth greater than $10 million. Criterion 2: The company’s U.S. assets equal at least 90% of its total assets or six times the sum of its decommissioning and land restoration obligations. Criterion 3: The company’s net working capital and tangible net worth must each be at least six times the sum of its decommissioning and land restoration obligations. Criterion 3: The company’s tangible net worth must be at least six times the sum of its decommissioning and land restoration obligations. Decommissioning Utility-Scale Solar Facilities 33 Criterion 4: The company must pass at least two of the three following ratios: Its ratio of total liabilities to net worth must be less than 2:1. Its ratio of the sum of net income, depreciation, depletion, and amortization to total liabilities must be greater than 1:10. Its ratio of current assets to current liabilities must be greater than 1.5:1. Criterion 4: The company’s most recent bond issuance must have a rating of at least BBB from Standard & Poor’s and at least Baa from Moody’s. If the company responsible for decommissioning the solar facility passes the corporate financial test, the locality should monitor the company’s financial status throughout the project life to verify the company’s ability to self-insure the estimated decommissioning costs. The locality can build these monitoring practices into the conditions for using a corporate financial test by applying the following: The locality could require the company to provide its financial statements for the most recent year to an independent Certified Public Accountant, who shall examine and produce an audit report on them. The financial test must be re-taken at least every year and when decommissioning cost estimates change to verify that the guarantor maintains at least the minimum tangible net worth and bond rating. Separate from use requirements, a locality accepting a corporate financial test should further: Verify the company’s bond ratings and financial ratios annually. A locality may also be able to access the company’s Form 10-K filed with the SEC, if the company has at least $10 million in assets and at least 500 shareholders, or if its lists its securities on an exchange or NASDAQ. A Form 10-K offers a useful summary of the corporation’s business and financial condition upon the end of its fiscal year, including audited statements (SEC, 2021). Remain aware of negative changes in (i) the size of the buffer by which the company passes the financial test, (ii) the company’s fiscal year-end, and (iii) business press regarding the company’s bond ratings, stock prices, or mergers and acquisitions, as any of these may indicate the company’s financial distress. Decommissioning Utility-Scale Solar Facilities 34 Parent Guarantee A parent guarantee is only available to solar developers affiliated with a parent company with a large and stable net worth (MDOC, 2018, p. 9). Similar to a corporate financial test, the locality is responsible for assessing the parent company’s financial ability to bear the costs of decommissioning and may consider the parent company’s asset to liability ratio, net worth, and credit exposure. Utilities regulated by the SCC, such as Dominion Energy, are typically able to offer parent guarantees for decommissioning security. Depending on additional state and federal regulations which their subsidiary division is subject to, a publicly regulated utility may prefer to offer a comparable form of financial assurance, such as a promissory note. Promissory Note An owner or operator of a solar facility who gives a promissory letter or promissory note for decommissioning makes a legally binding, unconditional promise to pay the costs associated with decommissioning an end-of-life or abandoned solar facility to the holder of the note, namely the locality, if the facility is not decommissioned in the required manner. Promissory notes typically provide a maturity date and specify the amount of the promised payment, along with the terms for payment. Additional Considerations Localities Rarely Accept Salvage Value Alone as FA While the estimated decommissioning cost should factor salvage value, localities generally do not accept salvage value alone as sufficient financial assurance for decommissioning, even in cases where an engineer’s decommissioning cost estimate suggests that salvage value exceeds removal costs. In the current market, salvage values exceeding the total decommissioning cost estimate may overstate resale and recycling values. This may change as secondary markets develop and is an important area for monitoring and future research. Pooled Funds It is impractical and highly costly both to the developer and the locality to implement a pooled fund to assure decommissioning. Pooled funds are used—often under federal mandate—to decommission highly-regulated sites such as nuclear plants, oil wells, and hazardous waste facilities (MDOC, 2018; 26 CFR §1.468A-5). Owners of the same category of facility deposit payments or investment options into a decommissioning fund which each contributing owner may access under specific circumstances to execute decommissioning. The high levels of funding and administrative expertise necessary to operate a pooled fund, matched with the relative simplicity of decommissioning utility-scale solar facilities, make pooled funds an economically infeasible FA mechanism for solar sites. Decommissioning Utility-Scale Solar Facilities 35 Pooled Insurance A similar approach, pooled insurance for decommissioning, is infeasible at present for different reasons. Under a pooled insurance model, multiple solar developers could fund decommissioning security by contributing individual premiums to a group fund. A neutral manager of the pool, typically an insurance underwriter, would evaluate each project's decommissioning plan, each developer's financial status, and a table of historical losses—that is, decommissioning liability claims—from comparable sites to determine individual participants' risk that they would fail to complete decommissioning. This probability of failure, multiplied by the facility owner's total decommissioning obligation and factoring any administrative costs for managing the insurance pool, would yield the developer’s contribution to the fund. In the event that one of the participating developers should default on their obligation, the full FA amount would be paid out from the fund to the affected locality. There are several likely challenges associated with the take-up and rollout of a decommissioning insurance pool. As of August 2022, no insurers in the Commonwealth of Virginia underwrite pooled decommissioning insurance policies for utility-scale solar facilities. Nationally, the limited cases where pooled insurance for utility-scale solar projects have occurred are in relation to liability claims, such as from hailstorm damage or wind-loosened panels, and not EoL decommissioning (Schwab, Walker, & Desai, 2020). Moreover, because there is a very limited history of defaults on solar decommissioning obligations, it would be difficult for an underwriter to establish a schedule of actuarially fair prices for developers. If an underwriter overestimates a facility owner’s default risk, the insurance premium paid by the owner could be relatively higher than under an individual insurance policy or alternative FA mechanism, and therefore present a suboptimal FA situation for the solar developer. Conversely, if the insurer undercalculates the facility owner’s default risk, it will be responsible for paying extensive FA claims to the locality in the event of failure to decommission. While it is unlikely that the pool of funds would be insufficient to pay out decommissioning claims to localities, it remains possible that localities could face additional complications or lags in their access to a pool of funds if multiple project owners default on their decommissioning obligations. Applying a pooled insurance paradigm further requires solar projects across counties to participate in the same pool. This restricts the pooled insurance mechanism to future projects, demands greater coordination across localities, and could introduce delays to projects where coordination is uncertain or pre-coverage negotiations are necessary. While a decommissioning insurance pool is possible, the lack of a relevant model for utility-scale solar facilities may make it a daunting FA alternative for both localities and solar developers at this time. Decommissioning Utility-Scale Solar Facilities 36 Summary of Financial Assurance Mechanisms FA Mechanism Description Benefits Disadvantages Additional Considerations Trust Fund The solar developer (“Grantor”) transfers assets sufficient to cover the estimated decommissioning costs to a trust held and administered by a financial institution (“Trustee”). surety bond or letter of credit. Phased deposits may be allowed. If the trust fund accrues investment income, the locality may thus reduce future deposits required from funds: highly expensive to establish and maintain; subject to market volatility. If facility ownership changes, the trust fund does not automatically transfer to the Trustee manages assets for the benefit of the locality (“Beneficiary”). If the trust’s value exceeds the decommissioning cost estimate, funds may be released to the solar company. Cash Escrow The solar developer deposits funds sufficient to cover the estimated decommissioning costs to an account at a federally insured financial institution. be allowed. Funds in the cash escrow account will be released to the developer if decommissioning is Highly expensive to establish. May be the only FA mechanism available to solar developers with less credit access. Scheduled deposits rather than upfront payment and factoring salvage value can reduce expense. Escrow agent is an impartial asset holder. Letter of Credit (LC) The issuing bank substitutes its credit for the developer’s. Establishment requires the developer to post collateral usu. worth 0.5% to 1% of the LC’s face value. If facility ownership changes, the prior owner is not released from the LC until the successor company provides alternate FA. locality to verify LC’s value and access LC than is the case with a cash escrow account. In some cases, it may be easier for a locality to access LC funds than surety bond funds. An irrevocable LC cannot be revoked or altered by the issuing Costly annual renewal fees. May negatively affect the solar company’s credit and borrowing access. LC does not automatically transfer to successor company if facility ownership changes. include an evergreen clause so the LC automatically renews each year. Requires a standby trust agreement. (Irrevocable LC:) The Surety can alter the payout amount only with the consent of the bank, the locality, and Surety Bond The Surety, a bond company or bank insurance company, provides its financial backing to the locality on behalf of the developer, and takes on decommissioning obligations up to the bond limits if the developer (“Principal”) abandons or fails to decommission the facility. through the Principal’s payment of an annual premium equaling 1 to 3% of the bond’s face value. Publicly filed, and therefore relatively easier for a locality to verify surety bond’s value than is the case with a cash escrow account. May be less expensive for developer than cash Can be an expensive option, depending on cost of annual premium. Locality must file a written claim with Surety to obtain decommissioning funds. Surety verifies locality’s claim that decommissioning terms have been violated before granting the locality access to the FA. performance bonds differ. A payment bond requires a standby trust agreement. For a performance bond, the bonding company may pay out funds to a standby trust fund or hire a contractor to execute decommissioning. Cost paid by Principal depends on creditworthiness and Decommissioning Utility-Scale Solar Facilities 37 FA Mechanism Description Benefits Disadvantages Additional Considerations Insurance (Finite policy:) The solar company pays the insurer the net present value of the expected decommissioning liability. The locality may direct the insurer to reimburse the solar company for incurred decommissioning costs. Can be used with other FA mechanisms. Insurance premium may be paid as a single up-front cost or in phases. Responsive to adjustments in decommissioning cost estimate. Can be prohibitively expensive, as the company pays for decommissioning twice before reimbursement. The locality should monitor both the insurer’s financial solvency and that the solar company pays all its premiums. is required. May take the form of a fully-funded (finite) policy or, less commonly, a risk transfer policy. The insurer can only cancel the policy if the company fails to pay its Corporate Financial Test Developer self-insures cost of decommissioning (i.e., does not post security) by proving large Developer is extremely unlikely to become financially insolvent. Generally excludes developers unaffiliated with parent companies, or whose parent companies do not have a large and stable net worth. Locality should verify and monitor company’s financial ability to bear decommissioning obligations throughout the project life, potentially increasing the locality’s administrative costs. Promissory Letter or Parent Guarantee Developer’s parent company proves financial solvency and promises to pay any decommissioning obligations. unlikely to become financially insolvent. Developer does not usually post decommissioning security. Usually limited in application to publicly regulated utilities. Decommissioning Utility-Scale Solar Facilities 38 WHEN SHOULD A LOCALITY REQUIRE AN OWNER OR AFFILIATE TO POST FA? The cost-minimizing, security-maximizing timeline by which an owner should post financial assurance may vary across projects. Requiring decommissioning surety prior to or upon energizing a solar project offers localities immediate financial protection but also raises developers’ capital costs considerably, particularly where a solar project has not yet begun creating revenue (Curtis et al., 2021, “A Survey…”, p. viii). Pre-construction surety requirements may thus disincentivize developers from offering proposals or lengthen the construction phase of approved projects (NYSERDA, 2020). Surety posted at the power purchase agreement’s (PPA’s) expiration offers little long-term security to localities lacking the legal protections of abandonment and liability clauses. Apart from a force majeure event, it is extraordinarily unlikely that a solar facility with a PPA will cease operations during the project life, thereby decreasing the risk of abandonment. Later-phase surety may make a county or city relatively more competitive if it is seeking solar projects. Later posting further allows operators the benefit of paying FA as an operating cost, rather than an initial capital cost (Curtis et al., 2021, p. 29). Intermediate posting options are described in greater detail below. If a locality desires access to decommissioning security prior to the site’s construction, sufficient assurance can be accessed by requiring the project owner to provide evidence of liability insurance for the facility. This avoids levying a cost-prohibitive financial assurance condition—namely, providing most or all of the FA before operation—on the developer while simultaneously protecting the locality against site abandonment in the solar project’s early life. Note that liability insurance differs from a risk-transfer policy. Requiring a developer to post the most or all of the surety amount upon reaching the middle or first third of the solar facility’s anticipated life allows the project owner to pay financial assurance as an operating cost. This allows the locality to receive decommissioning security long before the facility’s scheduled deactivation without threatening the project’s financial viability. For example, the City of Suffolk requires the following financial assurance from Myrtle Solar Farm, LLC (15 MW): "Beginning in year 10, the solar energy facility owner will obtain a letter of credit, bond, or such other security in an amount equal to the cost of performing the restoration obligations minus the salvage value of the Solar Energy Facilities on the property." A phased financial assurance approach may be similarly beneficial if the solar developer is a smaller firm with less access to credit than a publicly regulated electric utility. Under this condition, the project owner would post security to a cash escrow account or attain additional surety bonds or letters of credit according to a pre-specified schedule. Depending on the locality’s preferences, a developer may make constant or variable payments in regular intervals. Decommissioning Utility-Scale Solar Facilities 39 For example, the conditional use permit approval for Twitty’s Creek Solar (13.8 MW) in Charlotte County, Virginia outlays the following schedule of annual deposits to a reserve fund. Note that the schedule below does not account for interest on the fund balance: Operating Year Deposit Cumulative Fund 1 $40,900 $40,900 6.79% 2 $39,600 $80,500 13.37% 3 $37,400 $117,900 19.57% 4 $36,600 $154,500 25.65% 5 $37,400 $191,900 31.86% 6 $36,100 $228,000 37.85% 7 $35,300 $263,300 43.72% 8 $32,700 $296,000 49.14% 9 $30,000 $326,000 54.13% 10 11 $23,500 $376,500 62.51% 12 $20,500 $397,000 65.91% 13 $17,000 $414,000 68.74% 14 $13,900 $427,900 71.04% 15 to 30 $10,900 per annum $602,300 by Year 30 100% by Year 30 Another phased FA approach is embodied in a proposed amendment to Pennsylvania Senate Bill 284 (S.B. 284 AO3939, 2022) at the time of this paper’s writing, which suggests the project owner should post the estimated decommissioning cost in ten percent increments every five years, beginning thirty days before the solar facility’s construction. Once the solar facility is established, the amendment recommends the following conditions take effect: Ten years after the initial security posting, the owner will provide 40% of the estimated decommissioning costs. Fifteen years after the initial security posting, the owner will provide 60% of the estimated decommissioning cost less the facility’s salvage value, subject to the exception that the security amount factoring salvage shall be no less than 40% of the estimated cost of decommissioning. Decommissioning Utility-Scale Solar Facilities 40 Twenty years after the initial security posting, the owner will provide 80% of the estimated decommissioning cost less the facility’s salvage value, but the security amount factoring salvage shall be no less than 60% of the estimated cost of decommissioning. Twenty-five years after the initial security posting, the owner will provide 100% of the estimated decommissioning cost less the facility’s salvage value, but the security amount factoring salvage shall be no less than 70% of the estimated cost of decommissioning. These phased deposits provide the locality with the security of access to most of the decommissioning surety prior to the project’s half-life without requiring steep commitments of financial assurance from the developer early in the project. Decommissioning Utility-Scale Solar Facilities 41 DETERMINING DECOMMISSIONING COSTS A decommissioning cost estimate must be prepared or at least reviewed by a Virginia-licensed engineer prior to submission to the locality’s Board of Supervisors, County Administrator, or other relevant official (Va. Stat. §15.2-2241.2). To ensure that decommissioning costs reflect price changes due to inflation and any non-uniform variation in costs among components of the decommissioning process, many Virginia localities require periodic updates of the decommissioning cost estimate, usually no less frequently than every ten years and no more frequently than every five years. The Code of Virginia allows but does not mandate the inclusion of a salvage value, which may be subtracted from the gross decommissioning cost to yield a net decommissioning cost estimate. In any case, the decommissioning cost estimate applied by the locality cannot exceed the licensed engineer’s projected cost of decommissioning (Va. Stat. §15.2-2241.2). VALUATION OF THE ADMINISTRATIVE FACTOR Some decommissioning ordinances and special use permit conditions apply an “administrative factor” equaling ten to twenty-five percent of the gross decommissioning cost, or removal cost. The administrative factor is added to the gross decommissioning cost and has several intended functions: Section 2241.2 of the Code of Virginia allows localities to include “a reasonable allowance for the estimated administrative costs related to a default of the owner, lessee, or developer [of a solar facility]”. In specific cases where the Virginia Department of Transportation has notified the locality that road damage is possible during site removal, the administrative factor assures that necessary road improvements will occur in a timely manner without cost to the public. It also acts as a reserve or buffer protecting the locality against any significant changes in the salvage credit claimed by the developer. Although the terms “administrative factor” and “inflation factor” are often used interchangeably, the term “inflation factor” is misleading. Inflation, being any general changes in the prices of goods and services throughout the economy, is naturally accounted for in the periodic re-calculation of the decommissioning cost estimate. Non-inflationary, industry-specific changes in the prices of solar hardware and the cost of decommissioning labor will also be fully accounted for in the re-calculation. Requiring an inflation factor as allowed in Section 2241.2 of the Code of Virginia is only useful if the decommissioning cost estimate is not regularly updated. If an annual inflation factor is preferred to a periodic recalculation, the locality should apply the industrial inflation rate as published in the Bureau of Labor Statistics’ producer price index (PPI).7 7 Author’s Note: The Bureau of Labor Statistics (BLS) regularly updates the PPI. Updates to the PPI database can be accessed online at: https://www.bls.gov/ppi/databases/. Decommissioning Utility-Scale Solar Facilities 42 The following statements exemplify superfluous special use permit conditions, and are not recommended in cases where a professional engineer recalculates decommissioning costs at least every five years: “The decommissioning cost estimate must include a provision for inflation.” “The decommissioning cost estimate shall be updated every five years from the date of approval and include the inflation rate as published by the Bureau of Labor Statistics, CPI.” “The project owner’s decommissioning cost estimate shall be increased by twenty percent (20%) of said estimate costs as a reasonable allowance for administrative costs, inflation, and potential damage to existing roads or utilities during site removal.” The following alternatives are both economically accurate and legally sound: "The owner shall supply bond riders or replacement bonds, upon request by the Locality, to account for inflation and changes in anticipated costs.” “The decommissioning plan shall be updated and filed with the County / City every five years to account for changed circumstances, including inflation.” “The project owner’s decommissioning cost estimate shall be increased by twenty percent (20%) of said estimate costs as a reasonable allowance for administrative costs and potential damage to existing roads or utilities during site removal.” SALVAGE CREDIT Salvage Plan The salvage plan is the portion of the decommissioning plan stating the description and quantities of solar waste components that will be recycled, resold in a licensed secondary market, or landfilled. A salvage plan should be prepared regardless of whether a locality factors salvage value. A project owner should also report the salvage value, or residual value of recycled or resold hardware as calculated by a Virginia-licensed engineer, alongside the decommissioning cost estimate even if the locality does not allow a salvage credit equaling part or all of the salvage to be subtracted from the decommissioning cost. Salvage values may change as the market for recycling and re-selling used solar hardware continues to develop. When to Allow a Salvage Credit It is considered good practice for localities to factor salvage value by allowing a solar facility’s owner or affiliate to subtract a salvage credit from the estimated cost of decommissioning, particularly as recycling and resale markets for solar technologies grow more robust. Including a salvage credit allows the project owner to post a lesser but sufficient financial assurance should the locality need to take over system decommissioning. Decommissioning Utility-Scale Solar Facilities 43 Localities can include a salvage credit while protecting against fluctuations in salvage value. This can be broadly accomplished by applying a reserve in the decommissioning cost estimate to protect against price volatility over the project life; for example, a locality may award a salvage credit by reducing the estimated salvage value by twenty percent while increasing the gross cost estimate by twenty percent (Maamari, 2018). The North Carolina Department of Environmental Quality similarly recommends that a locality exclude a specific percentage of salvage value from the offset calculation and revise it over time as recycling and reuse markets grow (2022, p. 12). To date, because salvage value estimates are subject to considerable uncertainty, localities generally do not accept salvage credit alone as sufficient decommissioning security in cases where the predicted salvage value exceeds the decommissioning cost estimate. In every case, salvage value estimates should come from an independent engineer rather than from a solar developer or facility owner. Salvage Credit Calculations Examples of salvage credit valuation from existing Virginia projects for which the salvage value equals the estimated resale and recycling values associated with decommissioned equipment include: The salvage credit equals eighty percent of the salvage value. (CUP Approval, Eastern Shore Solar, Accomack County; CUP Approval, SunTec Solar, Accomack County; CUP Approval, Southampton Solar, Southampton County) The salvage credit equals ninety percent of the salvage value. (CUP Approval, Spring Grove Solar, Surry County) The salvage credit equals fifty percent of the salvage value. (Southampton County Code, §18-637) Additional examples provided by the North Carolina Department of Environmental Quality suggest the following salvage credit valuations: 125% of the estimated net cost of decommissioning established within the approved decommissioning plan, or 25% of the estimated decommissioning cost excluding salvage value, whichever is greater; or 1.25 times the estimated decommissioning cost minus the salvageable value; or Either the difference of the estimated decommissioning cost and 50% of the salvageable value, or $75,000, whichever value is greater. Decommissioning Utility-Scale Solar Facilities 44 SUMMARY OF RECOMMENDATIONS The best practices for a locality to adopt when establishing regulations and financial assurance options for utility-scale solar facilities will depend on the size and duration of the project, the financial characteristics of the project developer, and the intended future use of the real property on which the project is situated. Host localities should expect that specific details of their decommissioning agreements with the developers of approved solar facilities will vary in accordance with the context of each project. Key considerations to weigh across all projects include: The local legal framework for utility-scale solar facilities; If the locality has incorporated decommissioning regulations into its zoning ordinance, then any subsequent decommissioning agreements and decommissioning plans are, at minimum, subject to the requirements specified therein. Localities may wish to consider which legal mechanisms should apply when determining whether a utility-scale solar facility should be repowered instead of decommissioned. A decommissioning ordinance—whether codified in the zoning ordinance or applied as a condition for land use—should define “decommissioning” and “abandonment” to avoid legal ambiguity and state the rights and rules of the locality regarding the decommissioning process. These rules may include clauses enforcing the project owner’s legal liability for paying the costs associated with removing and restoring the site, describing the conditions under which the locality would be allowed to inspect the facility, and restating the locality’s right to enter and remove the facility without the owner’s consent in the event of the owner’s failure to decommission. Emerging best practice is to allow between twelve and twenty-four months of continuous inactivity before declaring a facility abandoned, and to provide at least twelve months for decommissioning to be completed from the time of the facility’s abandonment or end-of-life. Specifying appropriate decommissioning plan contents; In every case, it is prudent to require a decommissioning plan to state the project owner’s contact information, the site’s anticipated project life, current land use, and proposed land use, a clearly- explained calculation of the estimated present-value cost of decommissioning, a description of the locality-approved financial assurance, a decommissioning narrative, a salvage plan—even in cases where the locality does not factor a salvage credit—and a land restoration plan. It may be necessary to include such measures as decompaction and soil restoration in the land restoration plan, depending on the property owner’s intended future use for the land. Decommissioning Utility-Scale Solar Facilities 45 Which financial assurance options are optimal to require of a developer; Legally enforceable access to sufficient financial assurance (FA) to carry out decommissioning plays an essential role in reducing the host locality’s risk of bearing the cost burden for removing a deactivated solar facility and restoring the project site to an appropriate condition. Nationally, localities tend to reject FA proposals that would substitute a salvage value estimate outweighing the gross cost of decommissioning (i.e., a net gain from decommissioning) as sufficient decommissioning security. Best practice provides that the surety amount be adjusted at least every five years based on a Virginia-licensed engineer’s re-evaluation of decommissioning costs. Any salvage value estimate could also be updated at this time. To maintain security in the event that a developer becomes financially insolvent, localities should require FA to remain posted until all decommissioning requirements have been fulfilled. Trust funds, fully-funded or risk-transfer insurance policies, and cash escrow accounts should be used with caution, as they may become prohibitively expensive for the facility owner. Surety bonds generally provide localities the same level of financial assurance as letters of credit and cash escrow accounts without affecting solar developers’ access to credit or working capital. If a project owner can fulfill the capital requirements of a corporate financial test, parent guarantee, or promissory note, localities should consider accepting such mechanisms as decommissioning security; in such case, the locality will bear the administrative burden of verifying the information and business status provided by the developer or its parent company. To avoid delaying projects due to high capital costs or imposing undue financial hardship on the solar developer, localities should consider requiring FA payments in phases or in the full amount once the project is operational, rather than as a lump-sum during site development. If and how inflation, administrative costs, and salvage values should be factored into the decommissioning cost estimate. Localities can account for inflationary changes in the decommissioning cost estimate by annually applying an inflation factor to the original estimate. For a more precise assessment of decommissioning costs, localities should instead have a Virginia-licensed engineer periodically recalculate the decommissioning cost, no less frequently than every five years from the estimate’s original filing with the locality. Based on emerging best practice, localities should also allow the salvage value of solar equipment and site hardware—or, a salvage credit equaling a substantial portion of the salvage value—to be subtracted from the gross decommissioning cost, as end-of-life equipment will retain a resale value even where recycling streams do not exist. Salvage value estimates should never come directly from a site owner or solar developer, but rather be prepared by an independent engineer. Decommissioning Utility-Scale Solar Facilities 46 Altogether, localities have ample discretion in determining and enforcing appropriate decommissioning practices for utility-scale solar facilities in the Commonwealth of Virginia. The principles and mechanisms detailed here are intended to provide localities with a helpful inventory of regulatory options which can be tailored to the characteristics of the solar facilities they host. Decommissioning Utility-Scale Solar Facilities 47 APPENDIX A: DECOMMISSIONING REGULATIONS BY VIRGINIA LOCALITY, AS OF JULY 2022 As of July 2022, the following localities… … Have neither a utility-scale solar decommissioning ordinance nor locally codified FA requirements: Accomack County, Albemarle County, City of Alexandria, Arlington County, Bath County, Bland County, Botetourt County, City of Bristol, Buchanan County, Buckingham County, City of Buena Vista, Caroline County, Carroll County, Charles City County, City of Charlottesville, Chesterfield County, City of Colonial Heights, City of Covington, Craig County, Cumberland County, City of Danville, Dickenson County, City of Emporia, Essex County, City of Fairfax, Fairfax County, City of Falls Church, Fauquier County, Floyd County, Fluvanna County, City of Franklin, Franklin County, City of Fredericksburg, Galax City, Giles County, Goochland County, Grayson County, Greene County, Greensville County, City of Hampton, Hanover County, Henrico County, Decommissioning Utility-Scale Solar Facilities 48 City of Hopewell, James City County, King and Queen County, Lee County, City of Lexington, Loudon County, Lunenburg County, City of Lynchburg, City of Manassas, City of Manassas Park, City of Martinsville, Mathews County, Mecklenburg County, Nelson County, New Kent County, City of Newport News, City of Norfolk, Northampton County, City of Norton, Nottoway County, Orange County, Page County, Patrick County, City of Petersburg, City of Poquoson, City of Portsmouth, Powhatan County, Prince William County, Pulaski County, City of Radford, City of Richmond, City of Roanoke, Roanoke County, Rockbridge County, Russell County, City of Salem, Scott County, Smyth County, Stafford County, City of Staunton, Tazewell County, City of Virginia Beach, Warren County, City of Waynesboro, Westmoreland County, City of Williamsburg, City of Winchester, Wise County. … Have a utility-scale solar decommissioning ordinance, but no locally codified FA requirements: Brunswick County, Clarke County, Frederick County, King George County, Pittsylvania County, Rockingham County, Washington County, York County. … Have both a utility-scale solar decommissioning ordinance and locally codified FA requirements: Alleghany County, Amelia County, Amherst County, Appomattox County, Augusta County, Campbell County, Charlotte County, City of Chesapeake, Dinwiddie County, Gloucester County, Halifax County, Henry County, Highland County, Isle of Wight County, King William County, Lancaster County, Louisa County, Middlesex County, Northumberland County, Prince Edward County, Rappahannock County, Richmond County, Shenandoah County, Southampton County, Spotsylvania County, City of Suffolk, Surry County. … Have considered or are considering a drafted decommissioning ordinance with FA requirements: City of Chesapeake (new FA requirements), Culpeper County, Prince George County, Sussex County; Town of Wytheville has adopted a decommissioning ordinance with FA requirements, but Wytheville County has not. Decommissioning Utility-Scale Solar Facilities 49 APPENDIX B: DECOMMISSIONING CONSIDERATIONS The following summary categorizes relevant options for localities to consider when creating decommissioning guidelines for utility-scale solar facilities. Key: Mandatory Enforcement Discretionary Enforcement Continued on following page. The locality grants zoning approval for a solar project, or receives an NOI for a by-right project. State Laws The following regulations (non-inclusive) apply: Va. Stat. § 10.1-1197.6 (HB 206) Va. Stat. §§15.2-2316.6:2316.9 Va. Stat. §15.2-2232 Va. Stat. §15.2-2241.2 Va. Stat. §§ 15.2-2288.7:2288.8 Va. Stat. § 45.2-1708 Va. Stat. §56-265.2 Va. Stat. §56-585.5 (VCEA) Va. Stat. §62.1-44.15:51 9VAC-15-60-30:130 20VAC5-302-20 regulations codified in a local solar ordinance and/or zoning ordinance. Site-specific conditions attached to the siting agreement and/or SUP, CUP, or SEP. Per the terms of Va. Stat. §15.2.-2241.2, project owner must enter into a written agreement with the locality that it will decommission the solar facility. Decommissioning Utility-Scale Solar Facilities 50 (Continued on Next Page) Administrative Factor: Can be omitted. If included, usually equals between ten and twenty-five percent of the DCE. What additional decommissioning measures should the locality consider? When is a project deemed “abandoned”? What is the facility’s EoL? What is the maximum permissible timeframe for decommissioning? Can the facility owner file for an extension on the decommissioning process? If so, what is the procedure for approval? Is the locality willing to negotiate an extension on the lease or use permit in the event that a project can be repowered upon EoL? Decommissioning Plan: Contact information Anticipated project life Cost estimate Decommissioning narrative Salvage plan Restoration plan Legal Protections for the Locality: Clear definitions of “decommission” and “abandonment” Distinguish between periods of continuous inactivity which do and do not constitute abandonment Entry rights Owner’s liability for decommissioning. Locality’s full access to decommissioning financial assurance upon abandonment or failure to decommission in a timely manner Procedure for local Notice, exceptions, and extensions on decommissioning Temporary variance framework How should decommissioning costs be calculated? Decommissioning Cost Estimate (DCE): Must be prepared by an independent, Virginia-licensed engineer. OR inflation annually with an inflation factor, based on PPI published for inflation and industry changes by recalculating the DCE every Salvage Credit: Best practice is to factor part or all of the salvage value. Not required under current state law. Never accept directly from the developer; should always be calculated by an independent engineer. Should be recalculated every 5 to 10 years. Decommissioning Utility-Scale Solar Facilities 51 What financial assurance (FA) mechanisms should the locality consider? Use with Caution: Can become prohibitively expensive for the facility owner to post or maintain. Trust fund (p. 28) Fully-funded insurance policy (pp. 31-32) Risk-transfer insurance policy (pp. 31-32) Cash escrow account (pp. 28-29) Considered Infeasible at Present: Salvage value alone, where salvage value exceeds decommissioning cost estimate. Pooled funds (p. 35) Decommissioning insurance pool (p. 36) Accessible for Many Facility Owners: Letter of Credit (pp. 29-30) Decommissioning Surety Bond (pp. 30-31) Accessible for Well-Capitalized Facility Owners: Parent Guarantee (p. 35) Promissory Note (p. 35) Corporate Financial Test (pp. 33-34) When should the locality require the facility owner to post FA? FA should always cover the full cost of decommissioning and should always be posted until decommissioning is complete. A lump-sum payment of the full decommissioning cost estimate during site construction can cause project delays. FA payments in a predetermined phased schedule, or in the full amount once a project is operational are less likely to impose undue financial hardship on the facility owner. Decommissioning Utility-Scale Solar Facilities 52 REFERENCES Adams, M. (2021, November 8). VA. GOP targets clean energy law, but rollback options are limited. 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Fact sheet: Repowering and decommissioning: End of life for renewable energy. Great Plains Institute. Zweibel, K., Moskowitz, P., & Fthenakis, V. (1998). Thin-film cadmium Telluride photovoltaics: ES and H issues, solutions, and perspectives. https://doi.org/10.2172/578669 AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER ON TUESDAY, JUNE 11, 2024 RESOLUTION CERTIFYING THE CLOSED MEETING WAS HELD IN CONFORMITY WITH THE CODE OF VIRGINIA WHEREAS, the Board of Supervisors of Roanoke County, Virginia has convened a closed meeting on this date pursuant to an affirmative recorded vote and in accordance with the provisions of The Virginia Freedom of Information Act; and WHEREAS, Section 2.2-3712 of the Code of Virginia requires a certification by the Board of Supervisors of Roanoke County, Virginia, that such closed meeting was conducted in conformity with Virginia law. NOW, THEREFORE, BE IT RESOLVED, that the Board of Supervisors of Roanoke County, Virginia, hereby certifies that, to the best of each member’s knowledge: 1. Only public business matters lawfully exempted from open meeting requirements by Virginia law were discussed in the closed meeting which this certification resolution applies; and 2. Only such public business matters as were identified in the motion convening the closed meeting were heard, discussed or considered by the Board of Supervisors of Roanoke County, Virginia.