Graham Platz, deputy general counsel for the West Virginia Department of Commerce, explains the proposed emergency rule requiring approval by the state Public Energy Authority to allow power plants using fossil fuels to be decommissioned or deconstructed. (Photo by Steven Allen Adams)

CHARLESTON — In the wake of the drama over a recent mothballing of a West Virginia coal-fired power plant, the state Public Energy Authority approved Tuesday new rules governing how future power plants in the state can shut down.

The Public Energy Authority approved an emergency rule to comply with the requirements of Senate Bill 609. The emergency rule is the first step toward a legislative rule that will have to be approved by lawmakers next year.

The legislative rule is required by SB 609, obtaining approval for decommissioning or deconstructing of existing power plants. The bill was passed by the West Virginia Legislature on March 6 and signed by Gov. Jim Justice the next day.

Graham Platz, deputy general counsel for the state Department of Commerce, went over the details of the proposed rule with authority members. The rule sets out requirements for public notice to state and local government entities, how third-party evaluators are selected, what information petitions must provide to the authority.

“The authority has a requirement that petitioners provide some baseline information that will help define the scope of the request for the authority when it has been put on notice of having to begin this procedure,” Platz said. “It serves notice on relevant government entities, and it addresses the third-party evaluator concern, which is the authority approving or denying the selected third-party evaluator selected by the petitioner.”

SB 609 requires existing coal-fired, natural gas-fired, and oil-fired electric power plants to receive approval from PEA in order to begin decommissioning and deconstructing activities. Power plants wishing to shut down are required to submit a petition to PEA.

The petitions must include an independent analysis of the social, environmental and economic impact decommissioning or deconstructing of the power plants has on communities and the state and a report on the potential alternatives to shutting down the plants, including using other technologies to produce electricity from alternative fuel sources. The law exempts power plants that have been non-producing five years or more prior to March 6.

The proposed rule sets out a public comment period for 30 days from the time the authority receives a petition, allowing the public to comment in writing or online. Petitions and other documentation would be available to the public through a Freedom of Information Act request, though proprietary information or trade secrets could be redacted.

The rule would also give flexibility to PEA’s chairman, Department of Commerce Cabinet Secretary James Bailey, to make certain decisions on behalf of the full authority. The rule requires information requests for petitions to go through the PEA chairman and gives the chairman the authority to determine what information can be given out through FOIA requests.

“There’s a couple places in this rule where I feel like it’s important for me to make sure everybody’s aware of where, as the chair, that it kind of delegates some authority to the chair,” Bailey said. “There certainly will be a ton of proprietary confidential information in all of these documents. We just need a way to allow everything to be as public as possible while also complying with confidentiality law.”

SB 609 requires PEA to implement an emergency rule and a legislative rule to implement the new law. Emergency rules allow agencies to quickly implement temporary rules until the Legislature can approve the final legislative rule. Emergency rules are up to the Secretary of State’s Office to approve or reject and can remain in effect for up to 15 months or until the final legislative rule goes into effect.

The agency must file a notice of public comment period within 30 days of filing the emergency rule. Public comment periods are open between 30 days and not more than 60 days.

The agency must also file a notice of agency approval within 90 days of filing the emergency rule with the Legislative Rule-Making Review Committee which approves or rejects legislative rules for the full Legislature to consider during the annual 60-day legislative session.

SB 609 was a direct response earlier this year to the possible closure of the Pleasants Power Plant near St. Marys. The 1,300-megawatt coal-fired power plant, originally scheduled to be retired at the end of May, went into mothballed status with PJM Interconnection as of June 1 after nearly 45 years of service.

Texas-based Energy Transition and Environmental Management, the owners of Pleasants Power with plans to demolish the plant, and California-based Omnis Fuel Technologies signed a letter of intent last week toward a possible purchase of Pleasants Power for hydrogen production. Energy Harbor, formerly known as FirstEnergy Solutions, had sold the plant to ETEM and leased the plant to continue producing electricity up to its retirement date.

ETEM was also in talks with Monongahela Power Co. and Potomac Edison Co., two subsidiaries of Akron-based FirstEnergy Corp., to maintain the plant for a 12-month period while the two companies considered a purchase of the plant. The PSC ordered MonPower/Potomac Edison to investigate the purchase of Pleasants Power, with the Legislature adopting two resolutions encouraging the companies to investigate the purchase. Justice also expressed support for a purchase.

The companies originally sought a $36 million temporary surcharge, though the companies have since admitted the costs could increase. Any letter of intent between MonPower/Potomac Edison and ETEM would need to be approved by the PSC.

Pleasants Power employs 154 workers and thousands of temporary union workers during maintenance periods with a $400 million economic impact for Pleasants County and the surrounding Mid-Ohio Valley. The plant is supplied by coal mines in the Northern Panhandle.