What is happening:
The West Virginia Department of Economic Development, agency administering the controversial Data Center Bill (a.k.a. HB2014, microgrid bill, and officially the Power Generation and Consumption Act) from the last legislative session, has put rules out for public comment that will guide implementation of this highly impactful bill. The rules have been designated as “emergency” by the agency. This means that there is only 30 days for public comment and the rules will go into effect 42 days after they were noticed unless they are approved by the Secretary of State or the Attorney General earlier.
What are the issues:
NOT an emergency
Usually, these rules are amended and approved by our democratically elected state legislature. However, there is an “emergency” process for times when a genuine emergency necessitates rules be put in place faster than can be accommodated by the legislative rule making process. This is not one of these times! State code 29A-3-15 requires that the agency provide reasoning as to why emergency rules are necessary. In its reasoning the Agency here simply sites that the legislation gives it that ability make rules and emergency rules. The agency fails to actually give a reason that it is an emergency.
Eliminates public participation
The rules eliminate public participation and, even worse, they eliminate the ability of the public to be informed. It appears that the first time that the public may be aware of a project is when the buildings start to be constructed. The rule states:
§145-20-15. Confidentiality. 15.1. All Letters of Intent seeking certification of a microgrid district and all Petitions seeking certification of a High Impact Data Center shall be deemed confidential. The Secretary shall institute a process to ensure that such documents are treated as confidential.
Why should this be a confidential process? How does this serve the public?
These districts could stretch across the county
The rules allow properties that are “nearly contiguous” to be included in the microgrid district. Nearly continuous is defined as “two or more parcels of property that are separated by a distance of no more than one (1) mile at their closest point.” This would literally allow one microgrid district to stretch across the entire county! Just think what this will do to the property values of the properties intertwined between these “nearly contiguous” properties. Imagine the impact of putting in the utilities that will need to be installed to serve such a ridiculously shaped district. The language in this section needs to be changed so that all property is actually contiguous. Any petitioner shall apply with contiguous acres; no shoestrings, no buffers, and all lots need to be touching at borders. This will reduce the negative impacts on property values, and reduce inefficiencies in utility delivery, and help reduce the impacts on the rural character of the area.
Does NOT protect natural resources
High Impact Data Centers and Microgrids have the capacity to use a massive amount of water in their processes. However, in the rules as currently written, there are no provisions noted to prohibit groundwater usage for these entities. The rules need to be changed to add these protections particularly for karst areas, which are especially vulnerable to over extraction.
Does NOT protect historic resources
The Eastern Panhandle of West Virginia is particularly ripe with historic sites and sacred areas. There are currently no protections for such sites in the rules. The rules should require that such sites be protected. The tourism economy rely on these sites and this bill has stripped the ability of our local government to protect them so the rules should add protections for them.
Please find below my comments on the Rule to Petition the Department of Commerce for Certification of a Microgrid District or Certification as a High Impact Data Center (HIDC).
This rule should not be designated an emergency. The only reason given for emergency designation was that the legislation allows for emergency rules. This does not actually constitute an emergency. Please remove the emergency designation, and allow our elected representatives to participate in the rule making process before any rule goes into effect.
This rule not only eliminates public participation but it also eliminates the ability of the public to seek information and know anything about these developments. This eliminates transparency and accountability. Please remove section 145-20-15 from the rules.
This legislation removes local protections for natural and historic resources by not allowing local zoning and land development to apply to development of these microgrid districts. For this reason, the rules should provide protections for these resources.
These microgrid districts stand to have a massively negative impact on local property values for properties not in the microgrid district, and the provision that allows properties that are 1 mile apart to be included in the same microgrid district will make this even worse, and add the issue of inefficient utility and fiber instillation. Please require that all parcels in a microgrid district be contiguous and no property or group of properties outside of the microgrid district be completely surrounded by properties in a microgrid district.
The entire microgrid district including any high impact data centers within them should be considered under one air permit as consistent with the Clean Air Act and West Virginia air permitting rules. The properties within the microgrid district are contiguous or nearly contiguous, and because the high impact data centers are the customer for 95% of the power plant’s generated electricity, the data center effectively controls the emissions that will be made by both the data center (including any emergency generators) and the power plant, which supports the data center operations.
To address these concerns please add the following paragraphs under the appropriate section:
3.1.x. Petitioner shall demonstrate that water for all uses within the microgrid district will be serviced by a surface water utility where the real property that will be subject to the microgrid district is in karst terrain. For the purposes of this rule “surface water utility” is defined as a utility that draws greater than 99% of the pretreatment water to serve the microgrid district from a naturally occurring surface water course (creek, stream, or river) and does not use artificial means (a well or pump) to obtain the water from groundwater.
3.1.x. Petitioner shall demonstrate that the microgrid district does not include any property or structure on the state or national register of historic places, and will not disturb land or cause land to be disturbed (with instillation of fiber or utilities) within 300 yards (as measured from the outer perimeter of the property or structure) of any property or structure on the state or national register of historic places.
3.1.x. Petitioner shall demonstrate that the parcels within the microgrid district are all contiguous and that no property or group of properties not within the microgrid district are surrounded by properties in the microgrid district (simply fronting a road does not alleviate this provision)
4.1.x. An attestation that the microgrid district does not include any property or structure on the state or national register of historic places, and will not disturb land or cause land to be disturbed (with instillation of fiber or utilities) within 300 yards (as measured from the outer perimeter of the property or structure) of any property or structure on the state or national register of historic places.
4.1.x. An attestation that the parcels within the microgrid district are all contiguous and that no property or group of properties not within the microgrid district are surrounded by properties in the microgrid district (simply fronting a road does not alleviate this provision).
4.1.x. An attestation that for the purposes of air emissions permitting through the WV Department of Environmental Protection or the US Environmental Protection Agency 1) all air emissions associated with the microgrid district, including any emissions from the associated high impact data center serviced by the microgrid (such as those from back-up generators), will be considered and applied for as one source; and 2) no claim of confidential business information will be made by the applicant regarding any air emission sources or air emissions.
9.1.x. Petitioner shall demonstrate that water for all uses within the High Impact Data Center will be serviced by a surface water utility where the High Impact Data Center is in karst terrain. For the purposes of this rule “surface water utility” is defined as a utility that draws greater than 99% of the pretreatment water to serve the High Impact Data Center from a naturally occurring surface water course (creek, stream, or river) and does not use artificial means (a well or pump) to obtain the water from groundwater.
9.1.x. Petitioner shall demonstrate that the High Impact Data Center property does not include any property or structure on the state or national register of historic places, and will not disturb land or cause land to be disturbed (with instillation of fiber or utilities) within 300 yards (as measured from the outer perimeter of the property or structure) of any property or structure on the state or national register of historic places.
10.1.x. An attestation that groundwater will not be utilized for any purpose within the High Impact Data Center if a majority the subject property is in karst terrain.
10.1.x. An attestation that the High Impact Data Center property does not include any property or structure on the state or national register of historic places, and will not disturb land or cause land to be disturbed (with instillation of fiber or utilities) within 300 yards (as measured from the outer perimeter of the property or structure) of any property or structure on the state or national register of historic places.