Title of Regulation: 1VAC20-10. Public Participation Guidelines (amending 1VAC20-10-10 through 1VAC20-10-120).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Effective Date: December 30, 2013.

Agency Contact: Justin Riemer, Deputy Secretary, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8904, or email justin.riemer@sbe.virginia.gov.

Small Business Impact Review Report of Findings: This regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Summary:

The amendments (i) provide that the State Board of Elections website, as well as the Virginia Regulatory Town Hall website, can be used at the board's discretion when seeking public comment on regulations; (ii) address the method by which and reduce the time period within which public comment for exempt regulations is received; and (iii) clarify when a regulation becomes effective.

1VAC20-10-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the State Board of Elections.

"Approving authority" means the State Board of Elections established pursuant to § 24.2-103 of the Code of Virginia as the legal authority to adopt regulations.

"Board" means the State Board of Elections, which is the unit of state government empowered by Title 24.2 of the Code of Virginia to make rules and regulations for registration of voters and elections. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

"Negotiated rulemaking panel" or "NRP" means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members of the board will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"State Board of Elections website" means the website operated by the Virginia State Board of Elections at http://www.sbe.virginia.gov, which [ has may provide ] online public comment forums and [ displays information about regulatory meetings and public information about ] regulatory actions under consideration by the [ board and makes this information viewable to the public Virginia State Board of Elections ].

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at http://www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended, and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

1VAC20-10-40. Public comment.

A. Whenever directed by statute or upon its own initiative, the agency may commence the regulation adoption process and proceed to draft a proposal according to these procedures.

B. In considering any nonemergency, exempt regulatory action, the board [ shall, in its discretion, will ] afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on [ the ] Town Hall or through the State Board of Elections website.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; any economic impact analysis of the proposed regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

C. [ The agency If the board, in its discretion, affords interested persons an opportunity to submit data, views, and arguments, the board ] shall accept public comments in writing after the publication of a regulatory action either on its website or on Town Hall and ] in the Virginia Register as follows:

1. For a minimum of 30 [ 14 21 ] calendar days following the publication of the notice of proposed exempt regulatory action.

2. For a minimum of 30 [ 14 21 ] calendar days following the publication of a reproposed regulation.

3. To the extent reasonably possible following the publication of a proposed emergency regulation.

4. For a minimum of [ 21 seven ] calendar days following the publication of a notice of periodic review.

5. Not later than [ 21 seven ] calendar days following the publication of a petition for rulemaking.

D. The agency may determine if any of the comment periods listed in subsection C of this section shall be extended or reduced if necessary.

E. If the board finds that one or more changes with substantial impact have been made to a proposed regulation, [ it the board, in its discretion, ] may allow an additional [ 30 calendar days period of time ] to solicit additional public comment on the changes.

F. If practicable, the board shall send a draft of the board's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation.

1VAC20-10-50. Petition for rulemaking.

A. Any person may petition the board to consider a regulatory action.

B. A petition shall include sufficient information to understand and evaluate the proposed action and contact the person responsible for presenting it. The following is a noninclusive list of information typically needed to the extent available:

1. The petitioner's name, mailing address, email address, and telephone number;

2. The petitioner's interest in the proposed action;

3. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections;

4. Reference to the legal authority of the agency to take the action requested;

5. Statement of the need and justification for the proposed action;

6. Statement of the impact on the petitioner and other affected persons; and

7. Supporting documents, if applicable.

C. The agency shall receive, consider, and respond to a petition and shall have the sole authority to dispose of the petition. The board may require a petitioner to reimburse copying costs associated with a petition.

D. The petition shall be posted on the State Board of Elections website or [ the on ] Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

1VAC20-10-60. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if the proposed text of the regulation is posted on the State Board of Elections website or on [ the ] Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate.

1VAC20-10-80. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory State Board of Elections website or [ the on ] Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

1VAC20-10-90. Public hearings on regulations.

A. The board shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The board may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The Governor requests the board to hold a public hearing; or

2. The board receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of proposed regulatory action.

D. Notice of any public hearing shall be posted on the State Board of Elections website or [ the on ] Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The board shall also notify those persons who requested a hearing under subdivision C 2 of this section.

1VAC20-10-100. Effective date and posting to agency website.

Regulations adopted by the board shall be effective [ as of the date stated in the regulation, which may provide conditions, ] including preclearance required under the federal Voting Rights Act, [ and in no event before they are published in upon approval by the board and compliance with all applicable legal requirements, including filing with ] the Register of Regulations [ and any further conditions the board may specify ]. All adopted regulations shall be posted to the agency website the Internet within three business days after they become effective.

1VAC20-10-120. Periodic review of regulations.

A. Following each presidential election, the board shall conduct a periodic review of its regulations consistent with an executive order issued by the Governor to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the State Board of Elections website or [ the on ] Town Hall and published in the Virginia Register.

Title of Regulation: 1VAC20-40. Voter Registration (amending 1VAC20-40-50, 1VAC20-40-70; repealing 1VAC20-40-80).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Public Hearing Information: A public hearing will be scheduled in January or February, 2014.

Public Comment Deadline: January 13, 2014.

Agency Contact: Martha Brissette, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8925, FAX (804) 371-0194, or email martha.brissette@sbe.virginia.gov.

Small Business Impact Review Report of Findings: This regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Summary:

The proposed amendments (i) clarify language related to application signature and determination of residency; (ii) remove a requirement for the registrar to seek information not material to the application; (iii) update referenced forms; and (iv) remove provisions related to absent military and overseas voters, which are being relocated in a separate regulatory action to a new chapter numbered 1VAC20-45.

1VAC20-40-50. Supplemental questions.

When warranted by the situations described in 1VAC20-40-40 C and where any other information on the voter registration application is unclear, the general registrar shall ask the following questions on a form prescribed by the board after notifying the applicant that any response he makes is subject to the same oath he took to sign the application:

1. Are you currently registered to vote at another address? The general registrar shall not ask this question unless the applicant failed to provide the information on the voter registration application.

a. If yes to subdivision 1 of this section, what is that address, and in what county, city, or state is that address located?

b. If yes to subdivision 1 of this section or as indicated on the voter registration application, do you wish to cancel your registration in that county, city, or state and register and establish residence in this county or city in Virginia?

2. Do you have a specific plan to move away from this county or city at a fixed date in the future? If so, when?

1VAC20-40-70. Applications for voter registration; affirmation of United States citizenship.

A. Form and signature.

1. Applications for voter registration shall be on a form approved by the State Board of Elections or appropriate federal agency.

2. Applications for voter registration must be signed by the applicant or the name and address of the assistant entered on the signature line for an applicant with. If the applicant is unable to sign due to a physical disability, the name and address of the person assisting the voter shall be entered on the application according to the form instructions.

B. Material omissions on applications for voter registration in general. The following omissions are not material if any of the following, or combination thereof, exists:

1. Daytime telephone number;

2. Description of a rural address;

3. Mailing address different from residence address;

4. Date of the application;

5. Whether the applicant is interested in working as an election official;

6. Whether the applicant requests to have his residence address excluded from published lists;

7. Whether the applicant has a disability that requires accommodation in order to vote; or

8. Gender.

C. Material omissions from applications for voter registration on a Federal Post Card Application or Federal Write-in Absentee Ballot. The following omissions are not material:

1. Service identification number, rank, grade, or rate on an application that declares active duty military status.

2. Employer name and address on an application that declares temporary overseas residence with no date of last residence.

3. Employer name and address on an application that declares temporary overseas residence with a date of last residence. If practicable, the general registrar should inform the applicant that eligibility for full ballots requires providing the name and address of an employer outside the United States.

4. Date of last residence on an application that declares indefinite overseas residence. The date of last residence for an application declaring indefinite overseas residence without indicating a date of last residence in the United States shall be the date the application is signed.

D. C. Middle name may be material to determining eligibility to vote. If the applicant does not include a middle name the registrar shall:

1. As far as practical, attempt to contact the applicant and obtain his middle name or lack thereof to determine if the application is complete.

2. a. If the applicant indicates that he has no middle name, the registrar shall process the application.

3. b. If the applicant indicates that he has a middle name, the registrar shall inform the applicant that the middle name is required, deny the application, and send the applicant a new application.

4. 2. If the registrar is unable to contact the applicant and therefore unable to determine if the application is incomplete, he shall give the benefit of doubt to the applicant and process the application.

E. Except for gender, the general registrar, if practicable, shall attempt to contact the applicant and obtain the missing information requested on an application for voter registration that is not material to determining eligibility to vote. If the general registrar obtains any missing information, he shall write the information, his name, and the date on the reverse side of the application for voter registration to indicate that the alteration was made by the general registrar.

F. D. A general registrar shall not change information provided by an applicant on an application for voter registration without written authorization signed by the applicant.

G. E. Persons identified as noncitizens in reports from the Department of Motor Vehicles shall have the opportunity to affirm United States citizenship status using any approved voter registration application or other form containing the required affirmation. The State Board of Elections shall automate the process for requesting affirmation of United States citizenship prior to cancellation.

H. F. For cases not covered by this section, the general registrar in consultation with the electoral board and State Board of Elections staff shall determine materiality on a case-by-case basis that may result in further amendment of this regulation.

1VAC20-40-80. Application for registration on Federal Post Card Application (FPCA). (Repealed.)

An applicant eligible for registration who applies for registration simultaneously with a request for an absentee ballot on a Federal Post Card Application (FPCA) as authorized by § 24.2-703 of the Code of Virginia may apply for registration as well as request an absentee ballot by facsimile transmission or scanned email attachment. An electronically submitted FPCA shall be sufficient to apply for registration and request an absentee ballot if signed and otherwise complete.

FORMS (1VAC20-40)

Virginia Voter Registration Application Form, VA-NVRA-1 (rev. 02/10)

Virginia Voter Registration Application Form, SBE-416.2 (rev.7/13)

National Voter Registration Application Form, Register to Vote in Your State by Using this Postcard Form and Guide (rev. 3/06)

Federal Post Card Application (FPCA), Voter Registration and Absentee Ballot Request, Standard Form 76 (rev. 08/11)

Federal Write-In Absentee Ballot (FWAB), Voter's Declaration/Affirmation, Standard Form 186 (rev. 08/11)

Title of Regulation: 1VAC20-45. Absent Military and Overseas Voters (adding 1VAC20-45-10 through 1VAC20-45-40).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Public Hearing Information: A public hearing will be scheduled. Contact the agency for details.

Public Comment Deadline: January 13, 2014.

Agency Contact: Martha Brissette, Policy Analyst, State Board of Elections, 1100 Bank Street, Richmond, VA 23228, telephone (804) 864-8925, FAX (804) 371-0194, or email martha.brissette@sbe.virginia.gov.

Small Business Impact Review Report of Findings: This regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Summary:

The State Board of Elections is proposing a new chapter for all regulations regarding absent military and overseas voters, which are currently found in 1VAC20-040 and 1VAC20-70, consistent with Chapter 353 of the 2012 Acts of Assembly establishing the Uniform Military and Overseas Voters Act. The regulations address voter registration, electronic submission of the Federal Post Card Application, and material omissions from federal write-in absentee ballots.

CHAPTER 45
ABSENT MILITARY AND OVERSEAS VOTERS

1VAC20-45-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Application for an absentee ballot" means a Federal Post Card Application (Form SF-76). A Federal Write-In Absentee Ballot (SF-186) is an absentee ballot application only for the voted ballot being submitted and is not an application for future elections.

"Federal-only ballot overseas voter" means a United States citizen residing outside the United States indefinitely who has not provided his last date of residence in Virginia or employment information showing that he is employed overseas or is the spouse or dependent residing with a person employed overseas. The date the applicant has provided next to his affirmation will serve as his last date of residence.

1VAC20-45-20. Voter registration.

A. Presumptions. As provided in 1VAC20-40-30 B, no presumption in favor of or against residence may arise merely on the basis of a person's presence or absence in the following circumstances:

1. While employed in the service of the Commonwealth or United States, whether military or civilian; or

2. While engaged in the navigation of the waters of the United States or of the high seas.

B. Material omissions from applications for voter registration on a Federal Post Card Application or Federal Write-in Absentee Ballot. The following omissions are not material:

1. Service identification number, rank, grade, or rate on an application that declares active duty military status.

2. Employer name and address on an application that declares temporary overseas residence with no date of last residence.

3. Employer name and address on an application that declares temporary overseas residence with a date of last residence. If practicable, the general registrar should inform the applicant that eligibility for full ballots requires providing the name and address of an employer outside the United States.

4. Date of last residence on an application that declares indefinite overseas residence. The date of last residence for an application declaring indefinite overseas residence without indicating a date of last residence in the United States shall be the date the application is signed.

1VAC20-45-30. Electronic submission of Federal Post Card Application.

An applicant eligible for registration who applies for registration simultaneously with a request for an absentee ballot on a Federal Post Card Application (FPCA) as authorized by §§ 24.2-458 and 24.2-703 of the Code of Virginia may apply for registration as well as request an absentee ballot by facsimile transmission or scanned email attachment. An electronically submitted FPCA shall be sufficient to apply for registration and request an absentee ballot if signed and otherwise complete.

1VAC20-45-40. Material omissions from Federal Write-In Absentee Ballots.

A. Pursuant to the requirements of §§ 24.2-467, 24.2-702.1, and 24.2-706 of the Code of Virginia, a timely received write-in absentee ballot on a Federal Write-In Absentee Ballot (FWAB) (Form SF-186) should not be rendered invalid if it contains an error or omission not material to determining the eligibility of the applicant to vote in the election in which he offers to vote.

B. If the applicant is not registered, the FWAB may not be accepted as timely for registration unless the applicant has met the applicable registration deadline. Section 24.2-419 of the Code of Virginia extends the mail registration deadline for certain military applicants. All applications requesting mailed ballots are subject to the mail absentee application deadline in §§ 24.2-459 and 24.2-701 of the Code of Virginia.

C. The following omissions are always material and any FWAB containing such omissions should be rendered invalid if on the declaration/affirmation any of the following, or combination thereof, exists:

1. The applicant has omitted the signature of the voter or the notation of an assistant in the voter signature box that the voter is unable to sign;

2. The applicant has omitted the signature of the witness; or

3. The applicant did not include the declaration/affirmation page.

D. The ballot should not be rendered invalid if on the FWAB any of the following, or combination thereof, exists:

1. The applicant has not listed the names specifically in the order of last, first, and middle name;

2. The applicant has listed a middle initial or maiden name, instead of the full middle name;

3. The applicant has omitted the street identifier, such as the term "road" or "street," when filling in the legal residence;

4. The applicant has omitted the county or city of registration if the county or city is clearly identifiable by the residence address information provided;

5. The applicant has omitted the zip code;

6. The applicant has omitted the date of the signature of the voter;

7. The applicant has omitted the address of the witness;

8. The applicant has omitted the date of signature of the witness;

9. The applicant did not seal the ballot within the security envelope, provided there is substantial compliance with the requirement that the ballot be accompanied by the required voter statement; or

10. The applicant has submitted a ballot containing offices or issues for which he is not eligible.

FORMS (1VAC20-45)

Federal Post Card Application (FPCA), Voter Registration and Absentee Ballot Request, Standard Form 76 (rev. 8/11)

Federal Write-in Absentee Ballot (FWAB), Voter's Declaration/Affirmation, Standard Form 186 (rev. 8/11)

Envelope B for Statement of UOCAVA Absentee Voter, 42 USC 1973ff-1 (rev. 7/13)

Title of Regulation: 1VAC20-50. Candidate Qualification (amending 1VAC20-50-30).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Effective Date: December 30, 2013.

Agency Contact: Myron McClees, Policy Analyst, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8949, FAX (804) 786-0760, or email myron.mcclees@sbe.virginia.gov.

Small Business Impact Review Report of Findings: This regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Summary:

The amendments clarify the provision regarding affidavits from persons whose signatures were rejected due to illegibility.

1VAC20-50-30. Appeals of petition signature insufficiency.

A. Pursuant to the requirements of §§ 24.2-506 and 24.2-543 of the Code of Virginia, a candidate for office, other than a party nominee, may appeal a determination that the candidate has failed to provide the required number of valid petition signatures necessary to qualify to appear on the ballot.

B. Any communication or notice required in this section shall be made in writing and delivered by mail or, unless otherwise prohibited by the Code of Virginia, electronically by electronic mail or facsimile. Notice of appeal from candidates must bear a photographically reproducible notary seal and be received by the deadlines established within this section.

C. A candidate for a county, city, or town office shall file his appeal with the local electoral board. A candidate for any other office shall file his appeal with the State Board of Elections.

D. A candidate for an office other than President of the United States must file his appeal within five calendar days of the issuance of the notice of disqualification.

E. A candidate for President of the United States must file his appeal within seven calendar days of the issuance of the notice of disqualification.

F. The proper body to which the appeal notice was given shall establish the time and place where the appeal will be heard and convey this information immediately to the candidate. Electronic mail will be the preferred method of notifying the candidate if such address has been provided by the candidate; otherwise, notice shall be sent by first-class mail.

G. The candidate bears the burden of proof in establishing that a sufficient number of signatures from qualified voters were timely provided.

1. The candidate must submit a list containing the rejected signatures to be reviewed and the specific reason for each signature's reconsideration at least two business days prior to the date on which the appeal will be heard. If the candidate submits no list, or submits a list that contains an insufficient number of names and reconsideration reasons to make up the number of signatures by which the candidate was deemed deficient, no appeal shall be held and the initial determination that the candidate did not qualify for the ballot will be final.

2. The candidate may submit documents clarifying the status of persons whose signatures were rejected for lacking proper registration status or residence.

3. The candidate may submit documents establishing the age of majority for any signer who was listed as ineligible due to status of being a legal minor.

4. The candidate may submit affidavits from persons whose signatures were rejected due to illegibility that attest to their identity. If possible, the The affidavits should state the person's name, residence address, and, if possible, a reasonable description of the location where approached by the circulator to sign the petition.

5. The candidate may not submit documents establishing that a petition signer became registered or updated his voter registration status to the address provided upon the petition after the established candidate filing deadline for the office sought.

H. Individual signatures reconsidered during the appeal will only count towards the candidate's requisite number if a majority of board members agree that sufficient evidence exists for their inclusion.

I. All determinations of the board before which the appeal is being heard shall be considered final and not subject to further appeal.

Title of Regulation: 1VAC20-60. Election Administration (amending 1VAC20-60-30, 1VAC20-60-40, 1VAC20-60-50).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Public Hearing Information: A public hearing will be scheduled. Contact the agency for details.

Public Comment Deadline: January 8, 2014.

Agency Contact: Myron McClees, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8949, FAX (804) 786-0760, or email myron.mcclees@sbe.virginia.gov.

Small Business Impact Review Report of Findings: This regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Summary:

The proposed amendments (i) clarify the use of electronic devices in the polling place, (ii) establish that a ballot is cast for provisional ballots when the voter relinquishes possession of a completed provisional ballot envelope containing the ballot to the possession of an officer of election, and (iii) establish the process for emptying an overfull ballot container in a single-party primary election.

1VAC20-60-30. Electronic devices in polling place.

A. Representatives of candidates and political parties authorized to observe the election may use cell phones or other electronic devices provided that the device contains no camera or video recording capacity camera function is not used within the polling place. The officers of election are responsible to monitor the use of electronic devices for observation of the election and may regulate or prohibit any use the officers determine will hinder or delay a voter or officer of election or otherwise impede the orderly conduct of the election.

Whether a particular call or calls by any authorized representative is deemed to interfere or disrupt the voting process is within the discretion of the officers of election at each precinct polling place as a majority. Any authorized representative may be required to cease the call, make or receive any such calls outside the precinct polling place, or be removed from the polling precinct place.

B. Use of cell phones and other electronic devices by other persons at polling places shall be monitored by the officers of election who may regulate or prohibit any use the officer determines will hinder or delay a voter or officer of election or otherwise impede the orderly conduct of the election. Use of electronic devices may not interfere nor disrupt the voting process, nor attempt to solicit or attempt to influence any person in casting his vote. At no time may any person use a camera or the camera function on an electronic device to film, digitally capture, or take pictures within the polling place unless such person is an authorized member of the media filming in accordance with § 24.2-604 J of the Code of Virginia. Once a voter enters the prohibited area at the polls as designated in § 24.2-604 of the Code of Virginia, the use of a cell phone or other electronic communication device may be prohibited if deemed a violation of § 24.2-1006 of the Code of Virginia, or if otherwise deemed disruptive to the voting process.

C. Grounds for regulating or prohibiting use of electronic devices include but are not limited to (i) the making or receiving of calls that interfere with or become disruptive to the voting process; (ii) the making or receiving of calls in an attempt to solicit or influence any person in casting his vote; or (iii) the usage of the camera function to film within the polling place or beyond the 40-foot prohibited area; or (iv) the person using the device is conducting himself in a noisy or riotous manner at or about the polls so as to disturb the election.

D. An officer of election may require any individual using an electronic device subject to regulation under subsection C of this section to cease such use, make or receive calls outside the precinct polling place, or remove the use of the device from the polling place.

E. Any action taken pursuant to this section is within the judgment of the officers of election as a majority.

F. The determination of the officers of election of any dispute concerning the use of electronic devices shall be subject to immediate appeal to the local electoral board.

1VAC20-60-40. When ballot cast.

A. A voter, voting in person on election day or voting absentee in-person, has not voted until a permanent record of the voter's intent is preserved.

B. A permanent record is preserved by a voter (i) pressing the vote or cast button on a direct recording electronic machine, (ii) inserting an optical scan ballot into an electronic counter, or (iii) placing a paper ballot in an official ballot container, or (iv) relinquishing possession of a completed provisional ballot envelope containing the ballot to the possession of an officer of election.

C. A vote has not been cast by the voter unless and until the voter or an officer of election or assistant at the direction of and on behalf of the voter pursuant to § 24.2-649 of the Code of Virginia completes these actions to preserve a permanent record of the vote.

D. If any voter's ballot was not so cast by or at the direction of the voter, then the ballot cannot be cast by any officer of election or other person present. Notwithstanding the previous sentence, if a voter inserts a ballot into an optical scanner and departs prior to the ballot being returned by the scanner due to an undervote or overvote, the officer of election may cast the ballot for the absent voter.

E. An absentee voter who votes other than in person shall be deemed to have cast his ballot at the moment he personally delivers the ballot to the general registrar or electoral board or relinquishes control over the ballot to the United States Postal Service or other authorized carrier for returning the ballot as required by law.

1VAC20-60-50. Overfull optical scan ballot container.

If an optical scan reader in use in a registrar's office or a polling place malfunctions because the connected ballot container includes too many ballots, election officials may open the ballot container and empty the ballots with the following safeguards:

1. The optical scan ballot container shall be opened in plain sight of any authorized party representatives or other observers and, once the ballots have been deposited into an auxiliary ballot container, both ballot containers shall remain in plain sight in the polling place.

2. Any such auxiliary ballot container used shall meet the requirements of § 24.2-623 of the Code of Virginia.

3. A minimum of two officers of election, representing both political parties, shall execute such a transfer of ballots. In a single-party primary election, the transfer shall be conducted by a minimum of two officers of election who may be members of the same party.

Title of Regulation: 1VAC20-70. Absentee Voting (amending 1VAC20-70-10; repealing 1VAC20-70-30).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Public Hearing Information: A public hearing will be scheduled. Contact the agency for details.

Public Comment Deadline: January 13, 2014.

Agency Contact: Martha Brissette, Policy Analyst, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8925, FAX (804) 371-0194, or email martha.brissette@sbe.virginia.gov.

Small Business Impact Review Report of Findings: This regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Summary:

The proposed amendments remove provisions related to absent military and overseas voters, which are being relocated in a separate regulatory action to a new chapter numbered 1VAC20-45.

1VAC20-70-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Application for an absentee ballot" means an application for an absentee ballot submitted on any form approved for that purpose according to federal and state laws. The term includes a Virginia Absentee Ballot Application (SBE-701), and a Virginia Annual Absentee Ballot Application (SBE-703.1), and a Federal Post Card Application (SF-76A). A Federal Write-In Absentee Ballot (SF-186A) is an absentee ballot application only for the voted ballot being submitted and is not an application for future elections.

"Envelope B" means the envelope required by § 24.2-706 of the Code of Virginia which identifies the voter.

"Federal only ballot overseas voter" means a United States citizen residing outside the United States indefinitely who has not provided his last date of residence in Virginia. The date the applicant has provided next to his affirmation will serve as his last date of residence.

1VAC20-70-30. Material omissions from Federal Write-In Absentee Ballots. (Repealed.)

A. Pursuant to the requirements of §§ 24.2-702.1 and 24.2-706 of the Code of Virginia, a timely received write-in absentee ballot on a Federal Write-In Absentee Ballot (FWAB) (Form SF-186A) should not be rendered invalid if it contains an error or omission not material to determining the eligibility of the applicant to vote in the election in which he offers to vote.

B. If the applicant is not registered, the FWAB may not be accepted as timely for registration unless the applicant has met the applicable registration deadline. Section 24.2-419 of the Code of Virginia extends the mail registration deadline for certain military applicants. All applicants are subject to the absentee application deadline in § 24.2-701 of the Code of Virginia.

C. The following omissions are always material and any FWAB containing such omissions should be rendered invalid if any of the following, or combination thereof, exists:

1. The applicant has omitted the signature of the voter or the notation of an assistant in the voter signature box that the voter is unable to sign;

2. The applicant has omitted the signature of the witness;

3. The applicant did not include the declaration/affirmation page; or

4. The applicant omitted from the declaration/affirmation information required by § 24.2-702.1 of the Code of Virginia needed to determine eligibility including, but not limited to, current military or overseas address.

D. The ballot should not be rendered invalid if on the FWAB any of the following, or combination thereof, exists:

1. The applicant has not listed the names specifically in the order of last, first, and middle name;

2. The applicant has listed a middle initial or maiden name, instead of the full middle name;

3. The applicant has omitted the street identifier, such as the term "road" or "street" when filling in the legal residence;

4. The applicant has omitted the county or city of registration if the county or city is clearly identifiable by the residence address information provided;

5. The applicant has omitted the zip code;

6. The applicant has omitted the date of the signature of the voter;

7. The applicant has omitted the address of the witness;

8. The applicant has omitted the date of signature of the witness;

9. The applicant did not seal the ballot within the security envelope, provided there is substantial compliance with the requirement that the ballot be accompanied by the required voter statement; or

10. The applicant has submitted a ballot containing offices or issues for which he is not eligible.

FORMS (1VAC20-70)

Absentee Ballot Application Form, SBE-701 (rev. 7/10)

Annual Absentee Ballot Application, SBE-703.1 (rev. 1/10)

Federal Post Card Application (FPCA), Voter Registration and Absentee Ballot Request, Standard Form 76 (rev. 08/11)

Federal Write-in Absentee Ballot (FWAB), Voter's Declaration/Affirmation, Standard Form 186 (rev. 08/11)

Envelope B for Statement of UOCAVA Absentee Voter, 42 USC 1973ff-1(b) (rev. 5/04)

Envelope B for Statement of Absentee Voter, SBE 706-2 (rev. 7/03)

Annual Absentee Ballot Application, SBE-703.1 (rev. 7/13)

Virginia Absentee Ballot Application Form, SBE-701 (rev. 7/13)

Envelope B - Ballot - Statement of Absentee Voter, (undated)

Title of Regulation: 3VAC5-50. Retail Operations (amending 3VAC5-50-10, 3VAC5-50-20, 3VAC5-50-40, 3VAC5-50-60, 3VAC5-50-100, 3VAC5-50-110, 3VAC5-50-160).

Statutory Authority: §§ 4.1-103 and 4.1-111 of the Code of Virginia.

Effective Date: January 29, 2014.

Agency Contact: W. Curtis Coleburn III, Chief Operating Officer, Department of Alcoholic Beverage Control, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-4409, FAX (804) 213-4411, TTY (804) 213-4687, or email curtis.coleburn@abc.virginia.gov.

Summary:

The amendments (i) clarify the types of restaurants that are eligible for a wine and beer license and further distinguish restaurants that are eligible for a mixed beverage license; (ii) extend the current statutory provisions for licensees (e.g., ability to read, write, speak, and understand the English language) to managers; (iii) lower the dollar amount of food that must be sold at gourmet shops in order for them to be licensed from $2,000 to $1,000; (iv) describe the specific criminal conduct that disqualifies an employee of a business rather than cite specific sections of the Code of Virginia; and (v) expand a restaurant's ability to advertise that drink specials are offered during specific times, without allowing advertising of specific special prices.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

3VAC5-50-10. Restrictions upon sale [ , possession, ] and consumption of alcoholic beverages.

A. Except as may be otherwise permitted under subdivisions 1 through 5 subdivision 7 of § 4.1-200 of the Code of Virginia, no licensee shall sell any alcoholic beverage to a person whom he shall know, or have reason at the time to believe, is:

1. Under the age of 21 years;

2. Intoxicated; or

3. An interdicted person.

B. No licensee shall allow the [ possession or ] consumption of any alcoholic beverage upon his licensed premises by any person to whom such alcoholic beverage may not lawfully be sold under this section [ , except where possession of the alcoholic beverage by a person younger than 21 years of age is due to such person's making a delivery of alcoholic beverages in pursuance of his employment or an order of his parent, or by any state, federal, or local law-enforcement officer when possession of an alcoholic beverage is necessary in the performance of his duties ].

3VAC5-50-20. Determination of legal age of purchaser.

A. In determining whether a licensee, or his employee or agent, has reason to believe that a purchaser is not of legal age, the board will consider, but is not limited to, the following factors:

1. Whether an ordinary and prudent person would have reason to doubt that the purchaser is of legal age based on the general appearance, facial characteristics, behavior and manner of the purchaser; and

2. Whether the seller demanded, was shown and acted in good faith in reliance upon bona fide evidence of legal age, as defined herein, and that evidence contained a photograph and physical description consistent with the appearance of the purchaser.

B. Such bona fide evidence of legal age shall include a valid motor vehicle driver's license issued by any state of the United States or the District of Columbia, armed forces identification card, United States passport or foreign government visa, valid special identification card issued by the Virginia Department of Motor Vehicles, or any valid identification issued by any other federal or state government agency, excluding student university and college identification cards, provided such identification shall contain a photograph and signature of the subject, with the subject's height, weight and date of birth.

C. It shall be incumbent upon the licensee, or his employee or agent, to scrutinize carefully the identification, if presented, and determine it to be authentic and in proper order. Identification which has been altered so as to be apparent to observation or has expired shall be deemed not in proper order.

3VAC5-50-40. Designated managers of licensees; appointment generally; disapproval by board; restrictions upon employment.

A. Each retail licensee, except a licensed individual who is on the premises, shall have a designated manager able to understand and communicate in the English language in a reasonably satisfactory manner present and in actual charge of the business being conducted under the license at any time the licensed establishment is kept open for business, whether or not the privileges of the license are being exercised. The name of the designated manager of every retail licensee shall be kept posted in a conspicuous place in the establishment, in letters not less than one inch in size, during the time he is in charge.

The posting of the name of a designated manager shall qualify such person to act in that capacity until disapproved by the board.

B. The board reserves the right to disapprove any person as a designated manager if it shall have reasonable cause to believe that any cause exists which would justify the board in refusing to issue such person a license, or that such person has committed any act that would justify the board in suspending or revoking a license.

Before disapproving a designated manager, the board shall accord him the same notice, opportunity to be heard, and follow the same administrative procedures accorded a licensee cited for a violation of Title 4.1 of the Code of Virginia.

C. No licensee of the board shall knowingly permit a person under 21 years of age, nor one who has been disapproved by the board within the preceding 12 months, to act as designated manager of his business.

D. Notwithstanding the provisions of § 4.1-225 (1) (i) of the Code of Virginia, the board will not take action to suspend or revoke a retail license if a licensee knowingly employs a person who has been convicted in any court of a felony or of any crime or offense involving moral turpitude, except in the following two categories:

1. The board may suspend or revoke a license if a licensee knowingly employs in the business conducted under such license, as agent, servant, or employee, in a position that is involved in the selling or serving of alcoholic beverages to customers, any person who has been convicted of a felony violation of Articles 1 (§ 18.2-248 et seq.), 1.1 (§ 18.2-265.1 et seq.), or 2 (§ 18.2-266 et seq.) of Chapter 7 of Title 18.2 the laws of the Commonwealth prohibiting the manufacture, sale, distribution, use, or possession of controlled substances, imitation controlled substances, counterfeit controlled substances, marijuana, or synthetic cannabinoids; driving under the influence of alcohol or other self-administered intoxicants; or a similar offense under the laws of any state, or the United States; or

2. The board may suspend or revoke a license if a licensee knowingly employs in the business conducted under such license, as agent, servant, or employee, in a position that is involved in the creation or maintenance of records required to be kept by the licensee under the provisions of Title 4.1 of the Code of Virginia or board regulations, or in the preparation or filing of any tax return or report required under Title 4.1 or Title 58.1 of the Code of Virginia or board regulations, any person who has been convicted of a felony violation of Articles 2 (§ 18.2-89 et seq.), 3 (§ 18.2-97.1 et seq.), 4 (§ 18.2-112.1 et seq.), or 7.1 (§ 18.2-152.2 et seq.) of Chapter 5 of Title 18.2 or Articles 1 (§ 18.2-172.2 et seq.), 3 (§ 18.2-178 et seq.), 4 (§ 18.2-182 et seq.), 5 (§ 18.2-186 et seq.), 6 (§ 18.2-194 et seq.), or 9 (§ 18.2-246.1 et seq.) of Chapter 6 of Title 18.2 the laws of the Commonwealth prohibiting robbery, burglary, larceny, embezzlement, computer crimes, forgery, false pretenses, issuing bad checks, false representations to obtain property or credit, credit card forgery or fraud, or money laundering, or a similar offense under the laws of any state, or the United States.

E. If a retail licensee wishes to employ a person whose employment would be covered by subdivisions D 1 or 2 of this section, or who has violated the laws of the Commonwealth, of any other state, or of the United States, applicable to the manufacture, transportation, possession, use or sale of alcoholic beverages, the licensee may apply to the board for approval of such employment. The board will cause the Bureau of Law Enforcement Operations to conduct an investigation into the suitability of the person for employment and recommend approval or disapproval. Before disapproving the employment of a person, the board shall accord him the same notice, opportunity to be heard, and follow the same administrative procedures accorded a licensee cited for a violation of Title 4.1 of the Code of Virginia.

3VAC5-50-60. Procedures for mixed beverage licensees generally; mixed beverage restaurant licensees; sales of spirits in closed containers.

A. No mixed beverage restaurant or carrier licensee shall:

1. Prepare, other than in frozen drink dispensers of types approved by the board drinks, or sell any mixed beverage except pursuant to a patron's order and immediately preceding delivery to him.

2. Serve as one drink the entire contents of a container of spirits in its original container for on-premises consumption except as provided by subsections C, D, and E [ of this section ].

3. Sell any mixed beverage to which alcohol has been added.

B. No mixed beverage restaurant licensee shall:

1. Allow to be kept upon the licensed premises any container of alcoholic beverages of a type authorized to be purchased under his license that does not bear the required mixed beverage stamp imprinted with his license number and purchase report number.

2. Use in the preparation of a mixed beverage any alcoholic beverage not purchased from the board or a wholesale wine licensee.

3. Fail to obliterate the mixed beverage stamp immediately when any container of spirits is emptied.

4. Allow any patron to possess more than two drinks of mixed beverages at any one time.

C. If a restaurant for which a mixed beverage restaurant license has been issued under § 4.1-210 of the Code of Virginia is located on the premises of a hotel or motel, whether the hotel or motel be under the same or different ownership, sales of mixed beverages, including sales of spirits packaged in original closed containers purchased from the board, as well as other alcoholic beverages, for consumption in bedrooms and private rooms of such hotel or motel, may be made by the licensee subject to the following conditions in addition to other applicable laws:

1. Spirits sold by the drink as mixed beverages or in original closed containers must have been purchased under the mixed beverage restaurant license upon purchase forms provided by the board;

2. Delivery of sales of mixed beverages and spirits in original closed containers shall be made only in the bedroom of the registered guest or to the sponsoring group in the private room of a scheduled function. This section shall not be construed to prohibit a licensee catering a scheduled private function from delivering mixed beverage drinks to guests in attendance at such function;

3. Receipts from the sale of mixed beverages and spirits sold in original closed containers, as well as other alcoholic beverages, shall be included in the gross receipts from sales of all such merchandise made by the licensee; and

4. Complete and accurate records of sales of mixed beverages and sales of spirits in original closed containers to registered guests in bedrooms and to sponsors of scheduled private functions in private rooms shall be kept separate and apart from records of all mixed beverage sales.

D. Carrier licensees may serve miniatures not in excess of two fluid ounces or 50 milliliters, in their original containers, for on-premises consumption.

E. A mixed beverage restaurant may serve as one drink the entire contents of a container of soju in its original container for on-premises consumption under the following conditions:

1. The container may be no larger than 375 milliliters.

2. Each container of soju served must be served for consumption by at least two patrons legally eligible to consume alcoholic beverages.

3VAC5-50-100. Definitions and qualifications for retail off-premises wine and beer licenses and off-premises beer licenses; exceptions; further conditions; temporary licenses.

A. Retail off-premises wine and beer licenses may be issued to persons operating the following types of establishments provided the total monthly sales and inventory (cost) of the required commodities listed in the definitions are not less than those shown:

1. "Delicatessen." An establishment which sells a variety of prepared foods or foods requiring little preparation such as cheeses, salads, cooked meats and related condiments:

Monthly sales ......................................................... $2,000

Inventory (cost) ....................................................... $2,000

2. "Drugstore." An establishment selling medicines prepared by a registered pharmacist according to prescription and other medicines and articles of home and general use [ ;: ]

Monthly sales .......................................................... $2,000

Inventory (cost) ....................................................... $2,000

3. "Grocery store." An establishment which sells edible items intended for human consumption, including a variety of staple foodstuffs used in the preparation of meals:

Monthly sales .......................................................... $2,000

Inventory (cost) ....................................................... $2,000

4. "Convenience grocery store." An establishment which has an enclosed room in a permanent structure where stock is displayed and offered for sale, and which sells edible items intended for human consumption, consisting of a variety of such items of the type normally sold in grocery stores:

Monthly sales .......................................................... $2,000

Inventory (cost) ....................................................... $2,000

In regard to both grocery stores and convenience grocery stores, "edible items" shall mean such items normally used in the preparation of meals, including liquids.

5. "Gourmet shop." An establishment provided with adequate shelving and storage facilities which [ sell sells ] products such as cheeses and gourmet foods:

Monthly sales .............................................. $2,000 $1,000

Inventory (cost) ............................................. $2,000 $1,000

B. Retail off-premises beer licenses may be issued to persons operating the following types of establishments provided the total monthly sales and inventory (cost) of the required commodities listed in the definitions are not less than those shown:

1. "Delicatessen." An establishment as defined in [ subsection A subdivision A 1 of this section ]:

Monthly sales .......................................................... $1,000

Inventory (cost) ....................................................... $1,000

2. "Drugstore." An establishment as defined in [ subsection A subdivision A 2 of this section ]:

Monthly sales.......................................................... $1,000

Inventory (cost) ....................................................... $1,000

3. "Grocery store." An establishment as defined in [ subsection A subdivision A 3 of this section ]:

Monthly sales.......................................................... $1,000

Inventory (cost) ....................................................... $1,000

4. "Marina store." An establishment operated by the owner of a marina which sells food and nautical and fishing supplies:

Monthly sales.......................................................... $1,000

Inventory (cost) ....................................................... $1,000

C. The board may grant a license to an establishment not meeting the qualifying figures in subsections A and B [ of this section ] provided it affirmatively appears that there is a substantial public demand for such an establishment and that public convenience will be promoted by the issuance of the license.

D. The board in determining the eligibility of an establishment for a license shall give consideration to, but shall not be limited to, the following:

1. The extent to which sales of required commodities are secondary or merely incidental to sales of all products sold in such establishment;

2. The extent to which a variety of edible items of the types normally found in grocery stores are sold; and

3. The extent to which such establishment is constructed, arranged or illuminated to allow reasonable observation of the age and sobriety of purchasers of alcoholic beverages.

E. Notwithstanding the above, the board may issue a temporary license for any of the above retail operations. Such licenses may be issued only after application has been filed in accordance with § 4.1-230 of the Code of Virginia and in cases where the sole objection to issuance of a license is that the establishment will not be qualified in terms of the sale of food or edible items. If a temporary license is issued, the board shall conduct an audit of the business after a reasonable period of operation not to exceed 180 days. Should the business be qualified, the license applied for may be issued. If the business is not qualified, the application will become the subject of a hearing if the applicant so desires. No further temporary license shall be issued to the applicant or to any other person with respect to that establishment for a period of one year from the expiration and, once the application becomes the subject of a hearing, no temporary license may be issued.

3VAC5-50-110. Definitions and qualifications for retail on-premises and on-premises and off-premises licenses generally; mixed beverage licensee requirements; exceptions; temporary licenses.

A. The following definitions shall apply to retail licensees with on-premises consumption privileges and mixed beverage licensees where appropriate:

1. "Bona fide, full-service restaurant" means an established place of business where meals are regularly sold to persons and that has adequate facilities and sufficient employees for cooking, preparing, and serving such meals for consumption at tables in dining areas on the premises.

2. "Counter" means a long, narrow surface with stools or chairs along one side for the patrons, behind which refreshments or meals are prepared and served.

1. "Designated area." A 3. "Designated area" means a room or an area in which a licensee may exercise the privilege of his license, the location, equipment and facilities of which room or area have been approved by the board. The facilities shall be such that patrons may purchase food prepared on the premises for consumption on the premises at substantially all times that alcoholic beverages are offered for sale therein. The seating capacity of such room or area shall be included in determining eligibility qualifications for a mixed beverage restaurant.

2. "Dining car, buffet car or club car." A vehicle operated by a common carrier of passengers by rail, in interstate or intrastate commerce and in which food and refreshments are sold.

3. "Meals." In determining what constitutes a "meal" as the term is used in this section, the board may consider the following factors, among others:

a. The assortment of foods commonly offered for sale;

b. The method and extent of preparation and service required; and

c. The extent to which the food served would be considered a principal meal of the day as distinguished from a snack.

4. "Habitual sales." In determining what constitutes "habitual sales" of specific foods, the board may consider the following factors, among others:

a. The business hours observed as compared with similar type businesses;

b. The extent to which such food or other merchandise is regularly sold; and

c. Present and anticipated sales volume in such food or other merchandise.

5. "Sale" and "sell." The definition of "sale" and "sell" as defined in 3VAC5-70-90 shall apply to this section.

4. "Dining area" means a public room or area in which meals are regularly sold at substantially all hours that alcoholic beverages are offered for sale therein.

5. "Meal" means a selection of foods for one individual, served and eaten especially at one of the customary, regular occasions for taking food during the day, such as breakfast, lunch, or dinner, that consists of at least one main dish of meat, fish, poultry, legumes, nuts, seeds, eggs, or other protein sources, accompanied by vegetable, fruit, grain, or starch products.

6. "Table" means an article of furniture supported by one or more vertical legs [ or similar supports ] and having a flat horizontal surface suitable for the service of meals [ , not immediately adjacent to the area where refreshments or meals are prepared ].

B. Wine and beer. Retail on-premises or on-premises and off-premises licenses may be granted to persons operating the following types of establishments provided that meals or other foods are regularly sold at substantially all hours that wine and beer are offered for sale and the total monthly food sales for consumption in dining areas and other designated areas on the premises are not less than those shown:

1. "Boat" (on premises only). A common carrier of passengers for which a certificate as a sight-seeing carrier by boat, or a special or charter party by boat has been issued by the State Corporation Commission, habitually serving food on the boat:

Monthly sales .........................................................$2,000

2. "Restaurant." A bona fide dining establishment habitually regularly selling meals with entrees and other foods prepared on the premises:

Monthly sales .........................................................$2,000

3. "Hotel." Any duly licensed establishment, provided with special space and accommodation, where, in consideration of payment, meals with entrees and other food prepared on the premises and lodging are habitually furnished to persons and which has four or more bedrooms:

Monthly sales .........................................................$2,000

In regard to both restaurants and hotels, at least $1,000 of the required monthly sales must be in the form of meals with entrees.

4. "Gourmet Oyster House." Any duly licensed establishment, located on the premises of a commercial marina and permitted by the Department of Health to serve oysters and other fresh seafood for consumption on the premises, where the licensee also offers to the public events for the purpose of featuring oysters and other seafood products:

Monthly sales of oysters and other seafood….....$1,000

C. Beer. Retail on-premises or on-premises and off-premises licenses may be granted to persons operating the following types of establishments provided that food is regularly sold at substantially all hours that beer is offered for sale and the total monthly food sales for consumption in dining areas and other designated areas on the premises are not less than those shown:

1. "Boat" (on-premises only). See subdivision B 1 [ of this section ]:

Monthly sales .........................................................$2,000

2. "Restaurant." An establishment habitually regularly selling food prepared on the premises:

Monthly sales .........................................................$2,000

3. "Hotel." See subdivision B 3 [ of this section ];

Monthly sales .........................................................$2,000

D. Mixed beverage licenses. The following shall apply to mixed beverage licenses where appropriate: Mixed beverage restaurant licenses may be granted to persons operating bona fide, full-service restaurants.

1. "Bona fide, full-service restaurant." An established place of business where meals with substantial entrees are habitually sold to persons and which has adequate facilities and sufficient employees for cooking, preparing and serving such meals for consumption at tables in dining areas on the premises. In determining the qualifications of such restaurant, the board may consider the assortment of entrees and other food sold. Such restaurants shall include establishments specializing in full course meals with a single substantial entree.

2. "Monetary sales requirements." The monthly sale of food prepared on the premises shall not be less than $4,000 of which at least $2,000 shall be in the form of meals with entrees.

3. "Dining area." A public room or area in which meals are regularly sold at substantially all hours that mixed beverages are offered for sale therein.

4. "Outside terraces or patios." An outside terrace or patio, the location, equipment and facilities of which have been approved by the board may be approved as a "dining area" or as a "designated area" in the discretion of the board. A location adjacent to a public sidewalk, street or alley will not be approved where direct access is permitted from such sidewalk, street or alley by more than one well-defined entrance therefrom. The seating capacity of an outside terrace or patio if used regularly by those operations which are seasonal in nature, shall be included in determining eligibility qualifications. For purposes of this subdivision, the term "seasonal operations" is defined as an establishment that voluntarily surrenders its license to the board for part of its license year.

5. "Tables and counters."

a. A "table" shall include any article of furniture, fixture or counter generally having a flat top surface supported by legs, a pedestal or a solid base, designed to accommodate the serving of food and refreshments (though such food and refreshments need not necessarily be served together), and to provide seating for customers. If any table is located between two-backed benches, commonly known as a booth, at least one end of the structure shall be open permitting an unobstructed view therein. In no event, shall the number of individual seats at free standing tables and in booths be less than the number of individual seats at counters.

b. This subdivision shall not be applicable to a room otherwise lawfully in use for private meetings and private parties limited in attendance to members and guests of a particular group.

1. Service of food in a bona fide, full-service restaurant shall consist of [ taking a food order at the table, and ] serving the food to the table on plates or appropriate dinnerware, accompanied by appropriate tableware. The board may approve the issuance of a mixed beverage restaurant license to a buffet restaurant if (i) both alcoholic and nonalcoholic beverage service is provided at the table and (ii) actual sales show that the requirements of subdivision D 2 of this section are met.

2. Monthly sales of food prepared on the premises of a mixed beverage restaurant licensee shall not be less than $4,000, of which at least $2,000 shall be in the form of meals.

3. A mixed beverage restaurant licensee must have at least as many seats at tables as at counters.

E. The board may grant a license to an establishment not meeting the qualifying figures in this section, provided the establishment otherwise is qualified under the applicable provisions of the Code of Virginia and this section, if it affirmatively appears that there is a substantial public demand for such an establishment and that the public convenience will be promoted by the issuance of the license.

F. Notwithstanding the above, the board may issue a temporary license for any of the above retail operations. Such licenses may be issued only after application has been filed in accordance with § 4.1-230 of the Code of Virginia, and in cases where the sole objection to issuance of a license is that the establishment will not be qualified in terms of the sale of food or edible items. If a temporary license is issued, the board shall conduct an audit of the business after a reasonable period of operation not to exceed 180 days. Should the business be qualified, the license applied for may be issued. If the business is not qualified, the application will become the subject of a hearing if the applicant so desires. No further temporary license shall be issued to the applicant or to any other person with respect to the establishment for a period of one year from expiration and, once the application becomes the subject of a hearing, no temporary license may be issued.

G. An outside terrace or patio, the location, equipment, and facilities of which have been approved by the board, may be approved as a "dining area" or as a "designated area" in the discretion of the board.

H. Limited mixed beverage licenses may be granted to persons operating restaurants as defined in § 4.1-100 of the Code of Virginia, provided that food is regularly sold at substantially all hours that alcoholic beverages are offered for sale, and the total monthly food sales of food cooked or prepared on the premises for consumption in dining areas and other designated areas on the premises are not less than $2,000.

3VAC5-50-160. Happy hour and related promotions; definitions; exceptions.

A. Definitions:

1. "Happy Hour." A specified period of time during which alcoholic beverages are sold at prices reduced from the customary price established by a retail licensee.

2. "Drink." Any beverage containing the amount of alcoholic beverages customarily served to a patron as a single serving by a retail licensee.

B. No retail licensee shall engage in any of the following practices:

1. Conducting a happy hour between 9 p.m. of each day and 2 a.m. of the following day;

2. Allowing a person to possess more than two drinks at any one time during a happy hour;

3. Increasing the volume of alcoholic beverages contained in a drink without increasing proportionately the customary or established retail price charged for such drink;

4. Selling two or more drinks for one price, such as "two for one" or "three for one";

5. Selling pitchers of mixed beverages;

6. Giving away drinks;

7. Selling an unlimited number of drinks for one price, such as "all you can drink for $5.00"; or

8. Advertising happy hour in the media or on the exterior anywhere other than within the interior of the licensed premises., except that a licensee may use the term "Happy Hour" or "Drink Specials" and the time period within which alcoholic beverages are being sold at reduced prices in any otherwise lawful advertisement; or

9. Establishing a customary retail price for any drink at a markup over cost significantly less than that applied to other beverages of similar type, quality, or volume.

C. This regulation shall not apply to prearranged private parties, functions, or events, not open to the public, where the guests thereof are served in a room or rooms designated and used exclusively for private parties, functions or events.

Title of Regulation: 4VAC20-260. Pertaining to Designation of Seed Areas and Clean Cull Areas (amending 4VAC20-260-40).

Statutory Authority: §§ 28.2-201 and 28.2-210 of the Code of Virginia.

Effective Dates: December 11, 2013, through January 10, 2014.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Preamble:

This emergency action clarifies that oysters less than the minimum cull size, which are adhering so closely to the shell of any marketable oyster as to render removal impossible without destroying the oysters less than the minimum cull size and which need not be removed, (i) shall be considered lawful and (ii) shall not be included in the culling tolerances or standards.

4VAC20-260-40. Culling tolerances or standards.

A. In the clean cull areas, if more than a four-quart measure of any combined quantity of oysters less than three inches and shells of any size are found in any bushel inspected by any police officer, it shall constitute a violation of this chapter, except as described in 4VAC20-260-30 E.

B. In the James River seed areas, if more than a six-quart measure of shells is found in any bushel of seed oysters inspected by any police officer, it shall constitute a violation of this chapter.

C. In the James River seed areas, if more than a four-quart measure of any combined quantity of oysters less than three inches and shells of any size are found in any bushel of clean cull oysters inspected by any police officer, it shall constitute a violation of this chapter.

D. From the seaside of the Eastern Shore, if more than a four-quart measure of any combined quantity of oysters less than three inches and shells of any size are found per bushel of clean cull oysters inspected by any police officer, it shall constitute a violation of this chapter.

E. Any oysters less than the minimum cull size or any amount of shell that exceeds the culling standard shall be returned immediately to the natural beds, rocks, or shoals from where they were taken.

F. Oysters less than the minimum cull size that are adhering so closely to the shell of any marketable oyster as to render removal impossible without destroying the oysters less than the minimum cull size need not be removed but shall be considered part of the culling tolerance during inspection, and those oysters shall be considered lawful and shall not be included in the culling tolerances or standards as described in subsections A through D of this section.

Title of Regulation: 9VAC20-160. Voluntary Remediation Regulations (amending 9VAC20-160-10 through 9VAC20-160-120).

Statutory Authority: § 10.1-1232 of the Code of Virginia.

Effective Date: January 29, 2014.

Agency Contact: Gary E. Graham, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4103, FAX (804) 698-4510, TTY (804) 698-4021, or email gary.graham@deq.virginia.gov.

Summary:

The regulatory action (i) updates current remediation levels and sampling and analysis methods; (ii) improves reporting and notification requirements; (iii) clarifies eligibility, application, registration fee, and termination requirements; (iv) makes termination and certificate revocation requirements more consistent with a voluntary program; (v) updates program procedures to process contaminated sites more efficiently and reflect changes in technology; and (vi) changes the language for fees so that an affected entity will pay $5,000 at the start of a remediation project and may apply for a refund of any unowed moneys at the end.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

9VAC20-160-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

"Authorized agent" means any person who is authorized in writing to fulfill the requirements of this program.

"Carcinogen" means a chemical classification for the purpose of risk assessment as an agent that is known or suspected to cause cancer in humans, including but not limited to a known or likely human carcinogen or a probable or possible human carcinogen under an EPA weight-of-evidence classification system.

"Certificate" means a written certification of satisfactory completion of remediation issued by the director department pursuant to § 10.1-1232 of the Code of Virginia.

"Completion" means fulfillment of the commitment agreed to by the participant as part of this program.

"Contaminant" means any man-made or man-induced alteration of the chemical, physical or biological integrity of soils, sediments, air and surface water or groundwater including, but not limited to, such alterations caused by any hazardous substance (as defined in the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC § 9601(14)), hazardous waste (as defined in 9VAC20-60), solid waste (as defined in 9VAC20-81), petroleum (as defined in Articles 9 (§ 62.1-44.34:8 et seq.) and 11 (§ 62.1-44.34:14 et seq.)) of the Virginia State Water Control Law, or natural gas.

"Cost of remediation" means all costs incurred by the participant pursuant to activities necessary for completion of voluntary remediation at the site, based on an estimate of the net present value (NPV) of the combined costs of the site investigation, report development, remedial system installation, operation and maintenance, and all other costs associated with participating in the program and addressing the contaminants of concern at the site.

"Department" means the Department of Environmental Quality of the Commonwealth of Virginia or its successor agency.

[ "Director" means the Director of the Department of Environmental Quality. ]

"Engineering controls" means physical modification to a site or facility to reduce or eliminate potential for exposure to contaminants. These include, but are not limited to, stormwater conveyance systems, pump and treat systems, slurry walls, vapor mitigation systems, liner systems, caps, monitoring systems, and leachate collection systems.

[ "Environmental covenant" means a servitude arising under an environmental response project that imposes activity and use limitations pursuant to the Uniform Environmental Covenants Act (§ 10.1-1238 et seq. of the Code of Virginia). ]

"Hazard index (HI)" means the sum of more than one hazard quotient for multiple contaminants or multiple exposure pathways or both. The HI is calculated separately for chronic, subchronic, and shorter duration exposures.

"Hazard quotient" means the ratio of a single contaminant exposure level over a specified time period to a reference dose for that contaminant derived from a similar period.

"Incremental upper-bound lifetime cancer [ risk level" risk" ] means a conservative estimate of the incremental probability of an individual developing cancer over a lifetime [ as a result of exposure to the potential carcinogen ]. Upper-bound lifetime cancer risk [ level ] is likely to overestimate "true risk."

"Institutional controls" means legal or contractual restrictions on property use that remain effective after remediation is completed [ , ] and are used to reduce or eliminate the potential for exposure to contaminants. The term may include, but is not limited to, deed [ , land use, ] and water use restrictions [ and environmental covenants ].

"Land use controls" means legal or physical restrictions on the use of, or access to, a site to reduce or eliminate potential for exposure to contaminants [ , ] or prevent activities that could interfere with the effectiveness of remediation. Land use controls include but are not limited to engineering and institutional controls.

"Monitored natural attenuation" means a remediation process that [ closely ] monitors the natural or enhanced attenuation process.

"Natural attenuation" means [ a process through which contaminants breakdown the processes by which contaminants break down ] naturally in the environment. Natural attenuation [ may be enhanced by the addition of nutrients, bacteria, oxygen, or other substances processes include a variety of physical, chemical, or biological processes that, under favorable conditions, act without human intervention to reduce the mass, toxicity, mobility, volume, or concentrations of contaminants in soil or groundwater ].

"Noncarcinogen" means a chemical classification for the purposes of risk assessment as an agent for which there is either inadequate toxicological data or is not likely to be a carcinogen based on an EPA weight-of-evidence classification system.

[ "Operator" means the person currently responsible for the overall operations at a site, or any person responsible for operations at a site at the time of, or following, the release. ]

"Owner" means any person currently owning or holding legal or equitable title or possessory interest in a property, including the Commonwealth of Virginia, or a political subdivision thereof, including title or control of a property conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means.

"Participant" means a person who has received confirmation of eligibility and has remitted payment of the registration fee.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation [ , ] or any other legal entity.

"Post-certificate monitoring" means monitoring of environmental or site conditions stipulated as a condition of issuance of the [ Certificate of Satisfactory Completion of Remediation certificate ].

"Program" means the Virginia Voluntary Remediation Program.

"Property" means a parcel of land defined by the boundaries in the deed.

"Reference dose" means an estimate of a daily exposure level for the human population, including sensitive subpopulations, that is likely to be without an appreciable risk of deleterious effects during a lifetime.

"Registration fee" means the fee paid to enroll in the Voluntary Remediation Program, based on 1.0% of the total cost of remediation at a site, not to exceed the statutory maximum.

"Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping [ , ] or disposing of any contaminant into the environment.

"Remediation" means actions taken to [ cleanup clean up ], mitigate, correct, abate, minimize, eliminate, control [ , and ] contain [ , ] or prevent a release of a contaminant into the environment in order to protect human health and the environment, including actions to investigate, study or assess any actual or suspected release. Remediation may include, when appropriate and approved by the department, land use controls [ ;, ] natural attenuation [ ; as well as ], [ and ] monitored natural attenuation.

"Remediation level" means the concentration of a contaminant with applicable land use controls [ , ] that is protective of human health and the environment.

"Report" means the Voluntary Remediation Report required by 9VAC20-160-70.

"Restricted use" means any use other than residential.

"Risk" means the probability that a contaminant will cause an adverse effect in exposed humans or to the environment.

"Risk assessment" means the process used to determine the risk posed by contaminants released into the environment. Elements include identification of the contaminants present in the environmental media, assessment of exposure and exposure pathways, assessment of the toxicity of the contaminants present at the site, characterization of human health risks, and characterization of the impacts or risks to the environment.

"Site" means any property or portion thereof, as agreed to and defined by the participant and the department, which contains or may contain contaminants being addressed under this program.

"Termination" means the formal discontinuation of participation in the Voluntary Remediation Program without obtaining a [ certification of satisfactory completion certificate ].

"Unrestricted use" means the designation of acceptable future use for a site at which the remediation levels, based on either background or standard residential exposure factors, have been attained throughout the site in all media.

9VAC20-160-20. Purpose, applicability, and compliance with other regulations.

A. The purpose of this chapter is to establish standards and procedures pertaining to the eligibility, enrollment, reporting, characterization, remediation, and termination criteria for the Virginia Voluntary Remediation Program in order to protect human health and the environment.

B. This chapter shall apply to all persons who elect to and are eligible to participate in the Virginia Voluntary Remediation Program.

C. Participation in the program does not relieve a participant from the obligation to comply with all applicable federal, state and local laws, ordinances and regulations related to the investigation and remediation (e.g., waste management and disposal, erosion and sedimentation controls, air emission controls, and activities that impact wetlands and other sensitive ecological habitats) undertaken by the participant pursuant to this chapter.

9VAC20-160-30. Eligibility criteria.

A. Candidate Applicants and proposed sites shall meet eligibility criteria as defined in this section.

B. Any Eligible applicants are any persons who own, operate, have a security interest in [ , ] or enter into a contract for the purchase or use of an eligible site. Those who wish to voluntarily remediate that a site may apply to participate in the program. Any person who is an authorized agent of any of the parties identified in this subsection may apply to participate in the program.

[ 1. Access: ] Applicants who are not the site owner must demonstrate that they have access to the property at the time of [ application, during the investigation, and throughout the remedial activities payment of the registration fee in accordance with 9VAC20-160-60 and must maintain such right of access ] until [ the remediation is completed a certificate is issued or participation in the program is terminated pursuant to 9VAC20-160-100 ].

[ 2. Change in ownership: The department shall be notified if there is a change in property ownership.

3. Change in agent: The department shall be notified if there is a change in agent for the property owner or the participant. ]

C. Sites are eligible for participation in the program if (i) remediation has not been clearly mandated by the United States Environmental Protection Agency, the department [ , ] or a court pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 USC § 9601 et seq.), the Resource Conservation and Recovery Act (42 USC § 6901 et seq.), the Virginia Waste Management Act (§ 10.1-1400 et seq. of the Code of Virginia), the Virginia State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), or other applicable statutory or common law; or (ii) jurisdiction of the statutes listed in clause (i) has been waived.

1. A site on which an eligible party has completed performed remediation of a release is potentially eligible for the program if the actions can be documented in a way which are equivalent to the requirements for prospective remediation this chapter, and provided the site meets applicable remediation levels.

2. Petroleum or oil releases not mandated for remediation under Articles 9 (§ 62.1-44.34:8 et seq.) and 11 (§ 62.1-44.34:14 et seq.) of the Virginia State Water Control Law may be eligible for participation in the program.

3. Where an applicant raises a genuine issue based on documented evidence as to the applicability of regulatory programs in subsection D of this section, the site may be eligible for the program. Such evidence may include a demonstration that:

1. a. It is not clear whether the release involved a waste material or a virgin material;

2. b. It is not clear that the release occurred after the relevant regulations became effective; or

3. c. It is not clear that the release occurred at a regulated unit.

D. For the purposes of this chapter, remediation has been clearly mandated if any of the following conditions exist, unless jurisdiction for such mandate has been waived:

1. Remediation of the release is the subject of a permit issued by the U.S. Environmental Protection Agency or the department, a pending or existing closure plan, a pending or existing an administrative order, a pending or existing court order, [ or ] a pending or existing consent order, or the site is on the National Priorities List;

2. The site at which the release occurred is subject to the Virginia Hazardous Waste Management Regulations (9VAC20-60) (VHWMR), is a permitted facility, is applying for or should have applied for a permit, is under interim status or should have applied for interim status, or was previously under interim status, and is thereby subject to requirements of the VHWMR;

3. The site at which the release occurred constitutes has been determined [ by the department prior to the application submittal date ] to be an open dump or unpermitted solid waste management facility under 9VAC20-81-45 of the Solid Waste Management Regulations [ and such conditions still exist that made the site an open dump or unpermitted solid waste management facility ];

4. The director department determines that the release poses an imminent and substantial threat to human health or the environment; or

5. Remediation of the release is otherwise the subject of a response action or investigation required by local, state, or federal law or regulation.

E. The [ director department ] may determine that a site under subdivision D 3 of this section may participate in the program provided that such participation complies with the substantive requirements of the applicable regulations.

9VAC20-160-40. Application for participation.

A. The application for participation in the Voluntary Remediation Program shall, at a minimum, provide the elements listed below:

1. [ A written notice of intent to participate in the program and an An ] overview of the project [ ;, transaction, or other reason for application for participation in the program. ]

2. A statement of the applicant's eligibility to participate in the program (e.g., proof of ownership, security interest, etc.) [ .; ]

3. For authorized agents, a letter of authorization from an eligible party [ ;. ]

4. A legal description of the site [ plat or ] map [ and that indicates the approximate ] acreage [ of the property and the and ] boundaries of the site [ , if not the entire property;. If the site is a portion of a larger property, then the plat or map shall show the approximate boundaries of both the site and the associated larger property. ]

5. The A general operational history of the site [ ;. ]

6. A general description of information known to or ascertainable by the applicant pertaining to (i) the nature and extent of any contamination; and (ii) past or present releases, both at the site and immediately contiguous to the site [ ;. ]

7. A discussion of the potential jurisdiction of other existing environmental regulatory programs [ requiring clean up of the release being proposed for admittance to the program ], or documentation of a waiver thereof [ ; and. ]

8. A notarized certification by the applicant that to the best of his knowledge all the information as set forth in this subsection is true and accurate. An application signed by the applicant [ and the owner of the property ] attesting that to the best of [ their the applicant's ] knowledge [ that ] all of the information as set forth in this subsection is true and accurate.

[ 9. If the applicant is not the owner of the property, the applicant shall provide written documentation that the owner of the property:

a. Consents in writing to the submission of the application; and

b. Agrees in writing that the information set forth in the application is substantially correct to the best of the owner's knowledge. ]

B. Within 60 days of the department's receipt of an application, the director shall review the application to verify that (i) the application is complete and (ii) the applicant and the site meet the eligibility criteria set forth in 9VAC20-160-30. The department shall review the application for completeness and notify the applicant within 15 days of the application's receipt whether the application is administratively [ complete or ] incomplete. Within 60 days of the department's receipt of a complete application, the department shall verify whether [ or not ] the applicant and the site meet the eligibility criteria set forth in 9VAC20-160-30. The department reserves the right to conduct eligibility verification inspections of the candidate site during the eligibility verification review.

C. If the director department makes a tentative decision to reject the application, he it shall notify the applicant in writing that the application has been tentatively rejected and provide an explanation of the reasons for the proposed rejection. Within 30 days of the applicant's receipt of notice of rejection the applicant may (i) submit additional information to correct the inadequacies of the rejected application or (ii) accept the rejection. The director's department's tentative decision to reject an application will become a final agency action under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) upon receipt of an applicant's written acceptance of the director's department's decision to reject an application, or in the event an applicant fails to respond within the 30 days specified in this subsection, upon expiration of the [ 30 ] days specified [ day 30-day ] period. If within 30 days an applicant submits additional information to correct the inadequacies of an application, the review process begins shall begin again in accordance with this section.

9VAC20-160-60. Registration fee.

A. In accordance with § 10.1-1232 A 5 of the Code of Virginia, the applicant shall submit a registration fee to defray the cost of the program.

B. The [ initial preliminary ] registration fee shall be at least 1.0% of the estimated cost of the remediation at the site, not to exceed [ the statutory maximum $5,000 ]. Payment shall be required after eligibility has been verified by the department and prior to technical review of submittals pursuant to 9VAC20-160-80. Payment shall be made payable to the Commonwealth of Virginia and remitted to Virginia Department of Environmental Quality, P.O. Box 1104, Receipts Control, Richmond, VA 23218.

C. To determine the appropriate registration fee, the applicant may provide an estimate of the anticipated total cost of remediation.

Remediation costs shall be based on site investigation activities; report development; remedial system installation, operation and maintenance; and all other costs associated with participating in the program and addressing the contaminants of concern at the subject site.

Departmental concurrence with an estimate of the cost of remediation does not constitute approval of the remedial approach assumed in the cost estimate.

The participant may elect to remit the statutory maximum registration fee to the department as an alternative to providing an estimate of the total cost of remediation at the time of eligibility verification.

D. If the participant does not elect to submit the statutory maximum registration fee, the participant shall provide the department with the actual total cost of the remediation prior to issuance of a certificate. The department shall calculate any balance adjustments to be made to the initial registration fee. Any negative balance owed to the department shall be paid by the participant prior to the issuance of a certificate. Any costs to be refunded shall be remitted by the department with issuance of the certificate.

E. If the participant elected to remit the statutory maximum registration fee, the department shall refund any balance owed to the participant after receiving the actual total cost of remediation. If no remedial cost summary is provided to the department within 60 days of the participant's receipt of the certificate, the participant will have waived the right to a refund.

C. Failure to remit the required registration fee within 90 days of the date of eligibility [ verification determination ] shall result in the loss of eligibility status of the applicant. The applicant must reestablish his eligibility for participation in the program [ and the eligibility of the site ], unless [ alternate provisions are proposed and deemed acceptable to ] the department [ agrees to extend the period for remitting the registration fee ].

D. Upon completion of remediation and issuance of the [ Certificate of Satisfactory Completion of Remediation certificate pursuant to 9VAC20-160-110 ], the participant [ is entitled to whose final cost of remediation is less than $500,000 may ] seek a [ partial ] refund [ of a portion ] of the [ preliminary ] registration fee. The refund [ will be amount shall be ] reconciled as [ 1.0% of the final cost of remediation as compared to the initial registration fee the difference between the preliminary registration fee and the final registration fee amounts ].

1. [ The In order to receive a refund, the ] participant shall provide the department with a summary of the final cost of remediation within 60 days of issuance of a certificate. [ The department shall calculate the balance adjustment to be made to the initial registration fee and refund the difference. The final registration fee amount for such projects shall be calculated as 1.0% of the final cost of remediation. The department shall review the summary, calculate the refund amount due, and issue a refund to the participant. ]

2. If no summary of the final cost of remediation is provided to the department within 60 days of issuance of the certificate, the [ participant will have waived the right to a refund final registration fee amount shall be equal to the preliminary registration fee amount, and no portion of the preliminary registration fee shall be refunded ].

3. Concurrence with the summary of the final cost of remediation does not constitute department verification of the actual cost incurred.

E. [ Except for termination pursuant to 9VAC20-160-100 A 4, no No ] portion of the [ preliminary ] registration fee will be refunded if participation [ in the program ] is terminated [ pursuant to the provisions of 9VAC20-160-100 ].

9VAC20-160-70. Work to be performed.

A. The Voluntary Remediation Report serves as the archive for all documentation pertaining to remedial activities at the site. Each component of the report shall be submitted by the participant to the department. As various components are received, they shall be inserted into the report. The report shall consist of the following components: a site characterization Site Characterization, a risk assessment including an assessment of risk to surrounding properties (as appropriate) Risk Assessment, a remedial action work plan Remedial Action Plan, a demonstration of completion Demonstration of Completion, and [ documentation of public notice Documentation of Public Notice ]. [ A Each ] separate [ report shall be submitted for each ] component of the Voluntary Remediation Report [ shall be submitted as ] listed below:

1. The site characterization shall contain a delineation of Site Characterization [ Report component ] shall provide an understanding of the site conditions including the identification and description of each area of concern (or source); the nature and extent of releases to all media, including [ a map of ] the [ onsite and offsite ] vertical and horizontal extent of the contaminants [ on the site, including off-site areas as applicable; and a preliminary screening of the above levels consistent with 9VAC20-160-90; and a discussion of the potential ] risk or risks posed by the release. [ If remedial activities have occurred prior to enrollment, this information shall be included. ]

2. The risk assessment Risk Assessment [ Report component ] shall contain an evaluation of the risks to human health and the environment posed by the release, including an assessment of risk to [ off-site offsite ] properties [ ,; ] a proposed set of remediation [ levels level objectives ] consistent with 9VAC20-160-90 that are protective of human health and the environment [ ,; ] and [ a either ] recommended remediation [ actions ] to achieve the proposed objectives [ ; ] or a demonstration that no action is necessary.

3. The remedial action work plan Remedial Action Plan [ Report component ] shall propose the [ specific ] activities, [ a ] schedule [ for those activities ], any permits required to initiate and complete the remediation [ , ] and specific design plans for implementing remediation that will achieve the remediation [ levels level objectives ] specified in the [ risk assessment Risk Assessment component of the report ]. Control or elimination of continuing onsite source or sources of releases to the environment shall be discussed. Land use controls [ and any permits required for the remediation process ] should be discussed as appropriate. If no remedial action is necessary, the Remedial Action Plan shall discuss the reasoning for no action. [ When remedial activities have occurred prior to enrolling in the Voluntary Remediation Program, this information shall be included in the Site Characterization Report. The Remedial Action Plan Report shall describe the remedial activities that occurred, to include as applicable: how releases (or sources) have been eliminated or controlled; the remediation system or systems installed; site restrictions imposed; permits required; and how remediation levels have been achieved. ]

4. Demonstration of completion. [ A Demonstration of Completion Report is required whenever remedial action has occurred as part of participation in the Voluntary Remediation Program. ] The Demonstration of Completion [ Report component ] shall include [ the following, as applicable ]:

[ a a. A ] detailed summary [ of the performance ] of the remediation implemented at the site, [ the total cost of the remediation, and including a discussion of the remediation systems installed and a description of the remediation activities that occurred at the site.

b. A detailed summary of how the established site-specific objectives have been achieved, including (i) a description of how onsite releases (or sources) of contamination have been eliminated or controlled, and (ii) ] confirmational sampling results demonstrating that the [ established site-specific remedial remediation level ] objectives have been achieved [ , or that and that the migration of contamination has been stabilized.

c. A description of any site restrictions including, but not limited to [ , ] land use controls that are proposed for the certificate.

d. A demonstration that all ] other criteria for completion of remediation have been satisfied. [ As part of the demonstration of completion, the participant shall certify compliance with applicable regulations pertaining to activities performed at the site pursuant to this chapter.

e. Certification by the participant that activities performed at the site pursuant to the chapter have been in compliance with all applicable regulations. ]

a. The demonstration of completion should, when applicable, include a detailed summary of the performance of the remediation implemented at the site, the total cost of the remediation, and confirmational sampling results demonstrating that the established site-specific remedial objectives have been achieved, or that other criteria for completion of remediation have been satisfied. If the participant elected to remit the statutory maximum registration fee and is not seeking a refund of any portion of the registration fee, the total cost of remediation need not be provided.

b. As part of the demonstration of completion, the participant shall certify compliance with applicable regulations pertaining to activities performed at the site pursuant to this chapter.

5. The participant shall provide documentation [ The ] Documentation of [ public notice Public Notice component ] is required to demonstrate that public notice has been provided in accordance with 9VAC20-160-120. Such documentation shall include copies of comments received during the public comment period, all acknowledgements of receipt of comments, as well as the participant's responses to comments, if any are made. [ Such documentation shall, at a minimum, consist of copies of all of the documents required pursuant to the provisions of subsection E of 9VAC20-160-120. ]

B. It is the participant's responsibility to ensure that the investigation and remediation activities (e.g., waste management and disposal, erosion and sedimentation controls, air emission controls, and activities that impact wetlands and other sensitive ecological habitats) comply with all applicable federal, state, and local laws and regulations and any appropriate regulations that are not required by state or federal law but are necessary to ensure that the activities do not result in a further release of contaminants to the environment and are protective of human health and the environment.

C. All work, to include sampling and analysis, shall be performed in accordance with Test Methods for Evaluating Solid Waste, USEPA SW-846, revised April 1998 March 2009, or other [ media specific media-specific ] methods approved by the department and completed using appropriate quality assurance/quality control protocols. All analyses shall be performed by laboratories certified by the Virginia Environmental Laboratory Accreditation Program (VELAP). Laboratory certificates of analysis shall be included with applicable reports.

D. [ Until certificate issuance, all participants shall submit an annual report to the department containing a brief summary of any actions ongoing or completed as well as any planned future actions for the next reporting period. This report shall be submitted by July 1 using the "VRP Site Status Reporting Form." Failure to submit within 60 days may result in the site's Voluntary Remediation Program eligibility status being terminated. While participating in the program, the participant shall notify the department in writing within 30 days of any change in property ownership.

E. While participating in the program, the participant shall notify the department in writing within 30 days of any change in agent for the property owner or the participant. ]

9VAC20-160-80. Review of submittals.

A. Upon receipt of submittals, the The department shall review and evaluate the submittals components of the Voluntary Remediation Report submitted by the participant. The department may request additional information, including sampling data of from the site or [ potentially affected offsite ] areas [ adjacent to the site ] to verify the extent of the release, in order to render a decision and move the participant towards expeditious issuance of the certificate.

B. The director department may [ waive or ] expedite, as appropriate, issuance of any permits required to initiate and complete a voluntary remediation. The director department shall, within 120 days of a complete submittal, expedite issuance of such permit in accordance with applicable regulations.

C. After receiving a complete and adequate report, the director department shall make a determination regarding the issuance of the certificate to the participant. The determination shall be a final agency action pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC20-160-90. Remediation levels.

A. The participant, with the concurrence of the department, shall consider impacts to human health and the environment in establishing remediation levels.

B. Remediation levels shall be based upon a risk assessment of the site and surrounding areas that may be impacted, reflecting the current and future use scenarios.

1. A site shall be deemed to have met the requirements for unrestricted use if the remediation levels, based on either background or standard residential exposure factors, have been attained throughout the site and in all media. Attainment of these levels will allow the site to be given an unrestricted use classification. No remediation techniques or land use controls that require ongoing management may be employed to achieve this classification.

2. For sites that do not achieve the unrestricted use classification, land use controls shall be applied. The restrictions imposed upon a site may be media-specific, may vary according to site-specific conditions, and may be applied to limit present and future use. All controls necessary to attain the restricted use classification shall be described in the certificate as provided in 9VAC20-160-110. Land use controls approved by the department for use at the site are considered remediation.

C. B. Remediation levels based on human health shall be developed after appropriate site characterization data have been gathered as provided in 9VAC20-160-70. Remediation levels may be derived from the three-tiered approach provided in this subsection. Any tier or combination of tiers may be applied to establish remediation levels for contaminants present at a given site, with consideration of site use restrictions specified in subsection B of this section.

1. Under Tier I the participant shall collect appropriate samples from background and from the area of contamination for all media of concern remediation levels are based on media backgrounds levels. These background levels shall be determined from a portion of the property or a nearby property or other areas as approved by the department that have not been impacted by the contaminants of concern.

a. Background levels shall be determined from a portion of the property or a nearby property that has not been impacted by the contaminants of concern.

b. The participant shall compare concentrations from the area of contamination against background concentrations. If the concentrations from the area of contamination exceed established background levels, the participant may consider Tier II or Tier III methodologies, as applicable. If concentrations are at or below background levels, no further assessment is necessary.

2. Tier II generic remediation levels are media-specific values, derived using unrestricted use default assumptions assuming that there will be no restrictions on the use of groundwater, surface water, and soil on the site. Use of Tier II shall be limited to the following:

a. Tier II generic groundwater remediation levels shall be based on the most beneficial use of groundwater. The most beneficial use of groundwater is for a potable water source, unless demonstrated otherwise by the participant and accepted by the department. Therefore, they shall be based on (i) federal Maximum Contaminant Levels (MCLs) or action levels for lead and copper as established by the Safe Drinking Water Act (42 USC § 300 (f)) and the National Primary Drinking Water Regulations (40 CFR Part 141) or, in the absence of a MCL, (ii) tap water values derived using the methodology provided in the EPA Region III Risk-Based Concentration Table current at the time of the assessment Regional Screening Level Table, Region III, VI, and IX, United States Environmental Protection Agency, December 2009, using an acceptable individual carcinogenic risk of 1 X 10^-5 and an individual noncarcinogen hazard quotient of 0.1. For contaminants that do not have values available under clauses (i) or (ii) above, a remediation level shall be calculated using criteria set forth under Tier III remediation levels.

b. Soil Tier II soil remediation levels shall insure that migration of contaminants shall not cause the cleanup levels established for groundwater and surface water to be exceeded. Soil remediation levels shall be determined as the lower of either the ingestion or cross-media transfer values, according to the following:

(1) For ingestion, values derived using the methodology provided in the EPA Region III Risk-Based Concentration Table current at the time of assessment. Regional Screening Level Table, Region III, VI, and IX, United States Environmental Protection Agency, December 2009.

(a) For carcinogens, the soil ingestion concentration for each contaminant, reflecting an individual upper-bound lifetime cancer risk of 1 X 10^-6 10^-5.

(b) For noncarcinogens, 1/10 (i.e., Hazard Quotient = 0.1) 0.1 of the soil ingestion concentration, to account for multiple systemic toxicants at the site. For sites where there are fewer than 10 contaminants exceeding 1/10 0.1 of the soil ingestion concentration, the soil ingestion concentration may be divided by the number of contaminants such that the resulting hazard index does not exceed one 1.0.

(2) For cross-media transfer, values derived from the USEPA Soil Screening Guidance (OSWER, July 1996, Document 9355.4-23, EPA/540/R-96/018) and USEPA Supplemental Guidance for Developing Soil Screening Levels for Superfund Sites (OSWER, December 2002, Document 9355.4-24) shall be used as follows:

(a) The soil screening level for transfer to groundwater, with adjustment to a hazard quotient of 0.1 for noncarcinogens, if the value is not based on a MCL; or

(b) The soil screening level for transfer to air, with adjustment to a hazard quotient of 0.1 for noncarcinogens and a risk level of 1 X 10^-5 for carcinogens, using default residential exposure assumptions.

(3) (c) For noncarcinogens, for sites where there are fewer than 10 contaminants exceeding 1/10 0.1 of the soil screening level, the soil screening level may be divided by the number of contaminants such that the resulting hazard index does not exceed one 1.0.

(4) (3) Values derived under [ 9VAC20-160-90 C 2 b subdivisions 2 b ] (1) and (2) [ of this subsection ] may be adjusted to allow for updates in approved toxicity factors as necessary.

c. At sites where ecological receptors are of concern and there are complete exposure pathways, the participant shall perform a screening level ecological evaluation to show that remediation levels developed under Tier II are also protective of ecological receptors of concern.

d. For unrestricted future use, where a contaminant of concern exists for which c. Tier II remediation levels for surface water quality standards shall be based on the Virginia Water Quality Standards (WQS) have been adopted as established by the State Water Control Board for a specific use, the participant shall demonstrate that concentrations in other media will not result in concentrations that exceed the WQS in adjacent surface water bodies. (9VAC25-260), according to the following:

(1) The chronic aquatic life criteria shall be compared to the appropriate human health criteria and the lower of the two values selected as the Tier II remediation level.

(2) For contaminants that do not have a Virginia WQS, the federal Water Quality Criteria (WQC) may be used if available. The chronic federal criterion continuous concentration (CCC) for aquatic life shall be compared to the appropriate human health based criteria and the lower of the two values selected as the Tier II remediation level.

(3) If neither a Virginia WQS nor a federal WQC is available for a particular contaminant detected in surface water, the participant should perform a literature search to determine if alternative values are available. If alternative values are not available, the detected contaminants shall be evaluated through a site-specific risk assessment.

3. Tier III remediation levels are based upon a site-specific risk assessment considering site-specific assumptions about current and potential exposure scenarios for the population or populations of concern, including ecological receptors, and characteristics of the affected media and can be based upon a site-specific risk assessment. Land-use controls can be considered.

a. In developing Tier III remediation levels, and unless the participant proposes other guidance that is acceptable to the department, the participant shall use, for all media and exposure routes, the methodology specified in Risk Assessment Guidance for Superfund, Volume 1, Human Health Evaluation Manual (Part A), Interim Final, USEPA, December 1989 (EPA/540/1-89/002) and (Part B, Development of Preliminary Remediation Goals) Interim, USEPA, December 1991 (Publication 9285.7-01B) with modifications as appropriate to allow for site-specific conditions. The participant may use other methodologies approved by the department.

b. For a site with carcinogenic contaminants, the remediation goal for individual carcinogenic contaminants shall be an incremental upper-bound lifetime cancer risk of 1 X 10^-6 10^-5. The remediation levels for the site shall not result in an incremental upper-bound lifetime cancer risk exceeding 1 X 10^-4 considering multiple contaminants and multiple exposure pathways, unless the use of a MCL for groundwater that has been promulgated under 42 USC § 300g-1 of the Safe Drinking Water Act and the National Primary Drinking Water Regulations (40 CFR Part 141) results in a cumulative risk greater than 1 X 10^-4.

c. For noncarcinogens, the hazard index shall not exceed a combined value of 1.0.

d. In setting remediation levels, the department may consider risk assessment methodologies approved by another regulatory agency and current at the time of the Voluntary Remediation Program site characterization.

e. Groundwater cleanup levels shall be based on the most beneficial use of the groundwater. The most beneficial use of the groundwater is for a potable water source, unless demonstrated otherwise by the participant and approved by the department.

f. For sites where a screening level ecological evaluation has shown that there is a potential for ecological risks, the participant shall perform an ecological risk assessment to show that remediation levels developed under Tier III are also protective of ecological receptors of concern. If the Tier III remediation levels developed for human health are not protective of ecological receptors of concern, the remediation levels shall be adjusted accordingly.

C. The participant shall determine if ecological receptors are present at the site or in the vicinity of the site and if they are impacted by releases from the site.

1. At sites where ecological receptors are of concern and there are complete exposure pathways, the participant shall perform a screening level ecological evaluation [ to show demonstrating ] that remediation levels developed under the three-tiered approach described in this section are also protective of such ecological receptors.

2. For sites where a screening level ecological evaluation has shown that there is a potential for ecological risks, the participant shall perform an ecological risk assessment [ to show demonstrating ] that remediation levels developed under the three-tiered approach described in this section are also protective of ecological receptors. If the remediation levels developed for human health are not protective of ecological receptors, the remediation levels shall be adjusted accordingly.

9VAC20-160-100. Termination.

A. Participation in the program shall be terminated:

1. When evaluation of new information obtained during participation in the program results in a determination by the director department that the site is ineligible or that a participant has taken an action to render the site ineligible for participation in the program. If such a determination is made, the director department shall notify the participant that participation has been terminated and provide an explanation of the reasons for the determination. Within 30 days, the participant may submit additional information, or accept the director's department's determination.

2. Upon 30 days written notice of termination withdrawal by either party the participant.

3. Upon [ the ] participant's failure to make reasonable progress towards completion of the program, as determined by the department [ , and the participant's subsequent failure to respond appropriately within 30 days to the department's written request for an update of program-related activities and a projected timeline to fulfill the program requirements ].

[ 4. Upon fulfillment of all program requirements and issuance of the Certification of Satisfactory Completion of Remediation as described in 9VAC20-160-110, notwithstanding any conditions of issuance specified in the Certificate. ]

B. The department shall be entitled to receive and use, upon request, copies of any and all information developed by or on behalf of the participant as a result of work performed pursuant to participation in the program, after application has been made to the program whether the program is satisfactorily completed or terminated.

[ C. ] No [ Except for termination pursuant to subsection A 4, no portion of the registration fee will be refunded if participation is terminated by any method as described in 9VAC20-160-100. ]

9VAC20-160-110. Certification of satisfactory completion of remediation.

A. The director department shall issue a [ certification of satisfactory completion of remediation certificate ] when:

1. The participant has demonstrated that migration of contamination has been stabilized;

2. The participant has demonstrated that the site has met the applicable remediation levels and will continue to meet the applicable remediation levels in the future for both [ on site and off site onsite and offsite ] receptors; and

3. All provisions of the approved remedial action plan as applicable have been completed;

4. All applicable requirements of the regulations have been completed; and

3. 5. The department concurs with accepts all work submitted, as set forth in 9VAC20-160-80 9VAC20-160-70.

B. The issuance of the certificate shall constitute immunity to an enforcement action under the Virginia Waste Management Act (§ 10.1-1400 et seq. of the Code of Virginia), the Virginia State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), the Virginia Air Pollution Control Law (§ 10.1-1300 et seq. of the Code of Virginia), or other applicable Virginia law for the [ release or releases addressed releases described in the certificate ].

C. A site shall be deemed to have met the requirements for unrestricted use if the remediation levels, based on either background or standard residential exposure factors, have been attained throughout the site and in all media. Attainment of these levels will allow the site to be given an unrestricted use classification. No remediation techniques or land use controls that require ongoing management may be employed to achieve this classification.

D. For sites that do not achieve the unrestricted use classification, land use controls may be proffered in order to develop remediation levels based on restricted use. The restrictions imposed upon a site may be media-specific, may vary according to site-specific conditions, and may be applied to limit present and future use. All controls necessary to attain the restricted use classification shall be described in the certificate as provided in this section. Land use controls accepted by the department for use at the site are considered remediation for the [ purpose purposes ] of this chapter.

C. E. If a use restriction is specified in the certificate, such restriction must be attached to the deed to the property with an explanation for the restriction, subject to concurrence by the director, and shall the participant shall cause the certificate to be recorded by the participant with among the land records for the site in the office of the clerk of the circuit court for the jurisdiction in which the site is located within 90 days of execution of the certificate by the department, unless [ a longer period is ] specified in the certificate. The participant may also record the certificate itself. If the certificate does not include any use restriction, recordation of the certificate is at the option of the participant. The immunity accorded by the [ certification certificate ] shall apply to the participant and shall run with the land identified as the site.

D. F. The immunity granted by issuance of the certificate shall be limited to [ site conditions at the time of issuance as those conditions are described the known releases as described ] in the [ Voluntary Remediation Report certificate ]. The immunity is further conditioned upon satisfactory performance by the participant of all obligations required by the director department under the program and upon the veracity, accuracy, and completeness of the information submitted to the director department by the participant relating to the site. Specific limitations of the certificate shall be enumerated in the certificate. The immunity granted by the certificate shall be dependent upon the identification of the nature and extent of contamination as presented in the [ report Voluntary Remediation Report ].

E. G. The certificate shall specify the conditions for which immunity is being accorded, including, but not limited to:

1. A summary of the information that was considered;

2. Any restrictions on future use;

3. Any local land use controls on surrounding properties that were taken into account; and

4. Any required proffered land use controls including:; and

a. Engineering controls and their maintenance; and

b. Institutional controls.

5. Any post-certificate monitoring.

F. H. The certificate may be revoked by the director department [ at any time ] in [ any of the following situations, provided that (i) the department has given the owner written notice of the deficiency and (ii) the owner has failed to cure the deficiency within 60 days of the date of the written notice or some longer period granted by the department.

1. In ] the event that conditions at the site, unknown at the time of issuance of the certificate, pose a risk to human health or the environment [ or in;

2. In ] the event that the certificate was based on information that was false, inaccurate, or misleading [ . The certificate may also be revoked for the failure to meet or maintain the conditions of the certificate. Any and all claims may be pursued by the Commonwealth for liability for failure to meet a requirement of the program, criminal liability, or liability arising from future activities at the site that may cause contamination by pollutants. By issuance of the certificate the director department does not waive sovereign immunity. Failure to implement and maintain land use controls may result in revocation of the certificate.; or

3. In the event that the conditions of the certificate have not been met or maintained. ]

G. I. The certificate is not and shall not be interpreted to be a permit or a modification of an existing permit or administrative order issued pursuant to state law, nor shall it in any way relieve the participant of its obligation to comply with any other federal or state law, regulation or administrative order. Any new permit or administrative order, or modification of an existing permit or administrative order, must be accomplished in accordance with applicable federal and state laws and regulations.

J. [ Change in ownership: For properties that received a Certificate of Satisfactory Completion and are subject to use restrictions, the new property owner shall register with the department within 60 days of the acquisition. The issuance of the certificate shall not preclude the department from taking any action authorized by law for failure to meet a requirement of the program or for liability arising from future activities at the site that result in the release of contaminants.

K. The issuance of the certificate by the department shall not constitute a waiver of the Commonwealth's sovereign immunity unless otherwise provided by law. ]

9VAC20-160-120. Public notice.

A. The participant shall give public notice of either the proposed voluntary remediation or the completed voluntary remediation. The notice shall be made after the department concurs with accepts the [ site characterization report Site Characterization component of the Voluntary Remediation Report ] and the proposed or completed remediation [ , ] and shall occur prior to the department's issuing a certificate. Such notice shall be paid for by the participant.

B. The participant shall:

1. Provide written notice to the local government in which the facility is located;

2. Provide written notice to all adjacent property owners and other owners whose property has been [ impacted by the release being addressed under the VRP project affected by contaminants as determined pursuant to the provisions of subdivision A 1 of 9VAC20-160-70 ]; and

3. Publish a notice once in a newspaper of general circulation in the area affected by the voluntary action.

B. C. A comment period of at least 30 days must follow issuance of the notices pursuant to this section. The department, at its discretion, may increase the duration of the comment period [ to 60 days ]. The contents of each public notice required pursuant to [ 9VAC20-160-120 A subsection B of this section ] shall include:

1. The name and address of the participant and the location of the proposed voluntary remediation;

2. A brief description of the remediation, the general nature of the release, any remediation, and any proposed land use controls;

3. The address and telephone number of a specific person familiar with the remediation from whom information regarding the voluntary remediation may be obtained; and

4. A brief description of how to submit comments.

D. The participant shall send all commenters a letter acknowledging receipt of written comments and providing responses to the same.

C. E. The participant shall provide [ to the department ] a [ the following as documentation of public notice required in subdivision A 5 of 9VAC20-160-70 ]:

1. A signed statement that [ he the participant ] has sent a [ written copy of the public ] notice [ to all adjacent property owners and the local government, a as required by subsection B of this section;

2. A ] copy of the [ public ] notice [ , ] and a list of [ all ] names and addresses [ of all persons ] to whom the notice was sent.; and

[ 2. 3. ] Copies of all written comments received during the public comment period, copies of acknowledgement letters, and copies of any response to comments, as well as an evaluation of the comment's impact on the planned or completed action or actions.

D. The participant shall send all commenters a letter acknowledging receipt of comments.

E. The participant shall provide to the department copies of all written comments received during the public comment period, copies of acknowledgement letters, a discussion of how those comments were considered, a copy of any response to comments, and a discussion of their impact on the proposed or completed remediation.

DOCUMENTS INCORPORATED BY REFERENCE (9VAC20-160)

[ U.S. Environmental Protection Agency publications:

Test Methods for Evaluating Solid Waste: Physical/Chemical Methods; EPA Publication SW-846, Third Edition (1986) as amended by Final Update I, Final Update II, Final Update IIA, Final Update IIB, Final Update III, and Final Update IIIA, PB 99-115 891, revised April 1998 March 2009

U.S. EPA Soil Screening Guidance, EPA/540/R-96/018, Publication 9355.4-23, July 1996

Test Methods for Evaluating Solid Waste: Physical/Chemical Methods; EPA Publication SW-846, Third Edition (1986) as amended by Final Updates I, II, IIA, IIB, III, IIIA, IIIB, and IV, PB 99-115 891, revised March 2009 (http://www.epa.gov/osw/hazard/testmethods/sw846/online/index.htm)

Soil Screening Guidance: User's Guide, EPA/540/R-96/018, Publication 9355.4-23, July 1996 ]

[ U.S. EPA ] Supplemental Guidance for Developing Soil Screening Levels for Superfund Sites [ (OSWER December 2002, Document 9355.4-24), OSWER 9355.4-24, December 2002 ]

Risk Assessment Guidance for Superfund, Volume I, Human Health Evaluation Manual (Part A) Interim Final, EPA/540/1-89/002, Office of Emergency and Remedial Response, [ U.S. Environmental Protection Agency, ] December 1989 [ (http://www.epa.gov/oswer/riskassessment/ragsa) ]

Risk Assessment Guidance for Superfund: Volume I, Human Health Evaluation Manual (Part B, Development of Risk-Based Preliminary Remediation Goals) Interim, Publication 9285.7-01B, Office of Emergency and Remedial Response, [ U.S. Environmental Protection Agency, ] December 1991

Risk-Based Concentration Table, Region III, United States Environmental Protection Agency, April 2, 2002

Regional Screening Level [ (RSL) Master ] Table, Region III, VI, and IX [ United States Environmental Protection Agency ], December 2009

Title of Regulation: 9VAC25-32. Virginia Pollution Abatement (VPA) Permit Regulation (amending 9VAC25-32-10, 9VAC25-32-140, 9VAC25-32-250; adding 9VAC25-32-255).

Statutory Authority: § 62.1-44.15 and 62.1-44.18 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 28, 2014.

Agency Contact: Betsy Bowles, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4059, FAX (804) 698-4116, or email betsy.bowles@deq.virginia.gov.

Basis: Section 62.1-44.15 of the Code of Virginia authorizes the State Water Control Board to permit the management and discharge of sewage, industrial wastes, and other wastes into or adjacent to state waters and the alteration otherwise of the physical, chemical, or biological properties of state waters. The Virginia Pollution Abatement (VPA) Regulation defines the procedures and requirements to be followed in connection with VPA permits issued by the board pursuant to the State Water Control Law.

Purpose: The VPA permit regulation, 9VAC25-32, contains obsolete definitions that are inconsistent with the existing general permit for animal feeding operations (AFOs) as well as related federal definitions. The primary purpose of this action is to amend the VPA permit regulation in order to facilitate consistency with the other regulations that govern the pollutant management activities of animal wastes at AFOs. Proper management of animal wastes is necessary to protect water quality, which is essential to public health, safety, and welfare.

Substance: The proposed action includes amendments to definitions, terms, and procedures in the VPA permit regulation in order to bring consistency to the regulations governing AFOs. Additionally, the proposed amendments include language to establish technical requirements for end-users of animal waste that is transferred off the farm. The language specifies that the technical requirements for end-users will address proper storage, appropriate land application practices, and recordkeeping.

Issues: The primary advantage of the proposed regulatory action is to bring consistency to the regulations governing AFOs. Establishing and maintaining consistency among these regulations is an advantage for the public, the regulated community, and the Commonwealth. There are no disadvantages of the proposed regulatory action.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Pollution Abatement (VPA) Permit Regulation governs the pollutant management activities of animal wastes at animal feeding operations (AFOs). The State Water Control Board (Board) proposes to amend this regulation to: 1) permit non-poultry animal waste to be transferred from AFOs to end users, and 2) amend and introduce definitions for consistency with the existing general permit for AFOs as well as related federal definitions.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Under specified conditions, the current regulation permits AFOs to transfer poultry waste to end users, but not other animal waste. End users are typically farms that use the waste for fertilizer. The Board proposes to permit non-poultry animal waste to be transferred to end users. According to the Department of Environmental Quality, waste from dairy, beef, and swine feeding operations are the most likely to be newly utilized if this proposed change is approved. AFOs with animals other than poultry will benefit both from having new destinations to legally rid themselves of waste, and from potential revenue from selling the waste to farmers for use as fertilizer. Some farmers will benefit from having an increase in the potential supply of fertilizer. Environmental safeguards remain under the proposed regulations. Thus, the proposed amendments should provide a net benefit.

Businesses and Entities Affected. The proposed amendments will affect the approximate 150+ animal feeding operations¹ in the Commonwealth, as well as farms which use or potentially could use animal waste from the AFOs as fertilizer. All or most of the AFOs would qualify as small businesses.

Localities Particularly Affected. The proposed amendments apply to all localities, but would particularly affect agriculturally oriented localities with relatively more animal feeding operations.

Projected Impact on Employment. The proposed amendments will not likely have a large impact on employment. The proposal to permit the transfer of non-poultry animal waste to end users may lead to a small increase in employment related to the selling and transporting of the waste.

Effects on the Use and Value of Private Property. The proposal to permit the transfer of non-poultry animal waste to end users will very likely lead to AFOs selling non-poultry waste to farmers for fertilizer. This would have a positive impact on the value of such AFOs.

Small Businesses: Costs and Other Effects. The proposed amendments will likely reduce net costs of dealing with animal waste for small non-poultry AFOs, and may reduce the cost of obtaining quality fertilizer for some small farmers.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Real Estate Development Costs. The proposed amendment will not significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

__________________________________________

¹ Data source: Department of Environmental Quality

Agency's Response to Economic Impact Analysis: The Department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

The proposed amendments (i) add definitions for clarification or consistency with other regulations governing the pollutant management activities at animal feeding operations (AFOs); (ii) delete the term "concentrated animal feeding operations" and modify the term "confined animal feeding operations"; (iii) establish technical requirements for end-users of animal waste transferred off the farm; (iv) specify that the technical requirements for end-users will address proper storage, appropriate land application practices, and recordkeeping; and (v) modify the public notice provisions for consistency with the Virginia Pollutant Discharge Elimination System regulation governing AFOs.

Part I
General

9VAC25-32-10. Definitions.

A. The following words and terms, when used in this chapter and in VPA permits issued under this chapter shall have the meanings defined in the State Water Control Law, unless the context clearly indicates otherwise and as follows:

"Active sewage sludge unit" means a sewage sludge unit that has not closed.

"Aerobic digestion" means the biochemical decomposition of organic matter in sewage sludge into carbon dioxide and water by microorganisms in the presence of air.

"Agricultural land" means land on which a food crop, a feed crop, or a fiber crop is grown. This includes range land and land used as pasture.

"Agricultural storm water discharge" means a precipitation-related discharge of manure, litter, or process wastewater that has been applied on land areas under the control of an animal feeding operation or under the control of an animal waste end-user in accordance with a nutrient management plan approved by the Virginia Department of Conservation and Recreation and in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater.

"Agronomic rate" means, in regard to biosolids, the whole sludge application rate (dry weight basis) designed: (i) to provide the amount of nitrogen needed by the food crop, feed crop, fiber crop, cover crop, or vegetation grown on the land and (ii) to minimize the amount of nitrogen in the biosolids that passes below the root zone of the crop or vegetation grown on the land to the groundwater.

"Anaerobic digestion" means the biochemical decomposition of organic matter in sewage sludge or biosolids into methane gas and carbon dioxide by microorganisms in the absence of air.

"Animal feeding operation" means a lot or facility where the following conditions are met:

1. Animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period; and

2. Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the operation of the lot or facility.

Two or more animal feeding operations under common ownership are a single animal feeding operation for the purposes of determining the number of animals at an operation, if they adjoin each other, or if they use a common area or system for the disposal of wastes.

"Animal waste" means liquid, semi-solid, and solid animal manure, poultry waste, and process wastewater, compost, or sludges associated with livestock and poultry animal feeding operations including the final treated wastes generated by a digester or other manure treatment technologies.

"Animal waste end-user" means any recipient of transferred animal waste who stores or who utilizes the waste as fertilizer, fuel, feedstock, livestock feed, or other beneficial use for an operation under his control.

"Animal waste fact sheet" means the document that details the requirements regarding utilization, storage, and management of animal waste by end-users. The fact sheet is approved by the department.

"Annual pollutant loading rate" or "APLR" means the maximum amount of a pollutant that can be applied to a unit area of land during a 365-day period.

"Annual whole sludge application rate" or "AWSAR" means the maximum amount of biosolids (dry weight basis) that can be applied to a unit area of land during a 365-day period.

"Apply biosolids" or "biosolids applied to the land" means land application of biosolids.

"Beneficial use" means a use that is of benefit as a substitute for natural or commercial products and does not contribute to adverse effects on health or environment.

"Best Management Practices (BMP)" means a schedule of activities, prohibition of practices, maintenance procedures and other management practices to prevent or reduce the pollution of state waters. BMP's include treatment requirements, operating and maintenance procedures, schedule of activities, prohibition of activities, and other management practices to control plant site runoff, spillage, leaks, sludge or waste disposal, or drainage from raw material storage.

"Biosolids" means a sewage sludge that has received an established treatment and is managed in a manner to meet the required pathogen control and vector attraction reduction, and contains concentrations of regulated pollutants below the ceiling limits established in 40 CFR Part 503 and 9VAC25-32-660, such that it meets the standards established for use of biosolids for land application, marketing, or distribution in accordance with this regulation. Liquid biosolids contains less than 15% dry residue by weight. Dewatered biosolids contains 15% or more dry residue by weight.

"Board" means the Virginia State Water Control Board or State Water Control Board.

"Bulk biosolids" means biosolids that are not sold or given away in a bag or other container for application to the land.

"Bypass" means intentional diversion of waste streams from any portion of a treatment works.

"Concentrated confined animal feeding operation" means an animal feeding operation at which:

1. At least the following number and types of animals are confined:

a. 300 slaughter and feeder cattle;

b. 200 mature dairy cattle (whether milked or dry cows);

c. 750 swine each weighing over 25 kilograms (approximately 55 pounds);

d. 150 horses;

e. 3,000 sheep or lambs;

f. 16,500 turkeys;

g. 30,000 laying hens or broilers; or

h. 300 animal units; and

2. Treatment works are required to store wastewater, or otherwise prevent a point source discharge of wastewater pollutants to state waters from the animal feeding operation except in the case of a storm event greater than the 25-year, 24-hour storm.

"Confined animal feeding operation" means a lot or facility together with any associated treatment works where the following conditions are met:, for the purposes of this regulation, has the same meaning as an "animal feeding operation."

1. Animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period; and

2. Crops, vegetation forage growth, or post-harvest residues are not sustained over any portion of the operation of the lot or facility.

"Confined poultry feeding operation" means any confined animal feeding operation with 200 or more animal units of poultry. This equates to 20,000 chickens or 11,000 turkeys regardless of animal age or sex.

"Critical areas" and "critical waters" mean areas and waters in proximity to shellfish waters, a public water supply, or recreation or other waters where health or water quality concerns are identified by the Department of Health.

"Cumulative pollutant loading rate" means the maximum amount of an inorganic pollutant that can be applied to an area of land.

"Density of microorganisms" means the number of microorganisms per unit mass of total solids (dry weight) in the sewage sludge.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality, or an authorized representative.

"Discharge" means, when used without qualification, a discharge of a pollutant

"Discharge of a pollutant" means any addition of any pollutant or combination of pollutants to state waters or waters of the contiguous zone or ocean other than discharge from a vessel or other floating craft when being used as a means of transportation.

"Domestic septage" means either liquid or solid material removed from a septic tank, cesspool, portable toilet, Type III marine sanitation device, or similar treatment works that receives only domestic sewage. Domestic septage does not include liquid or solid material removed from a septic tank, cesspool, or similar treatment works that receives either commercial wastewater or industrial wastewater and does not include grease removed from a grease trap at a restaurant.

"Domestic sewage" means waste and wastewater from humans or household operations that is discharged to or otherwise enters a treatment works.

"Draft VPA permit" means a document indicating the board's tentative decision to issue, deny, modify, revoke and reissue, terminate or reissue a VPA permit. A notice of intent to terminate a VPA permit and a notice of intent to deny a VPA permit are types of draft VPA permits. A denial of a request for modification, revocation and reissuance or termination is not a draft VPA permit.

"Dry tons" means dry weight established as representative of land applied biosolids and expressed in units of English tons.

"Dry weight" means the measured weight of a sample of sewage sludge or biosolids after all moisture has been removed in accordance with the standard methods of testing and often represented as percent solids.

"Dry weight basis" means calculated on the basis of having been dried at 105°C until reaching a constant mass (i.e., essentially 100% solids content).

"Exceptional quality biosolids" means biosolids that have received an established level of treatment for pathogen control and vector attraction reduction and contain known levels of pollutants, such that they may be marketed or distributed for public use in accordance with this regulation.

"Facilities" means, in regard to biosolids, processes, equipment, storage devices and dedicated sites, located or operated separately from a treatment works, utilized for sewage sludge management including, but not limited to, handling, treatment, transport, and storage of biosolids.

"Fact sheet" means the document that details the requirements regarding utilization, storage, and management of poultry waste by poultry waste end-users and poultry waste brokers. The fact sheet is approved by the department in consultation with the Department of Conservation and Recreation.

"Feed crops" means crops produced primarily for consumption by animals.

"Fiber crops" means crops produced primarily for the manufacture of textiles, such as flax and cotton.

"Field" means an area of land within a site where land application is proposed or permitted.

"Food crops" means crops produced primarily for consumption by humans. These include, but are not limited to, fruits, vegetables, and tobacco.

"Forest" means a tract of land thick with trees and underbrush.

"General VPA permit" means a VPA permit issued by the board authorizing a category of pollutant management activities.

"Generator" means the owner of a sewage treatment works that produces sewage sludge and biosolids.

"Groundwater" means water below the land surface in the saturated zone.

"Industrial wastes" means liquid or other wastes resulting from any process of industry, manufacture, trade, or business, or from the development of any natural resources.

"Land application" means, in regard to biosolids, the distribution of either treated wastewater, referred to as "effluent," or stabilized sewage sludge, referred to as "biosolids," by spreading or spraying on the surface of the land, injecting below the surface of the land, or incorporating into the soil with a uniform application rate for the purpose of fertilizing the crops and vegetation or conditioning the soil. Sites approved for land application of biosolids in accordance with this regulation are not to be considered to be treatment works. Bulk disposal of stabilized sludge in a confined area, such as in landfills, is not land application. For the purpose of this regulation, the use of biosolids in agricultural research and the distribution and marketing of exceptional quality biosolids are not land application.

"Land application area" means, in regard to biosolids, the area in the permitted field, excluding the setback areas, where biosolids may be applied.

"Land applier" means someone who land applies biosolids pursuant to a valid permit from the department as set forth in this regulation.

"Land with a high potential for public exposure" means land that the public uses frequently. This includes, but is not limited to, a public contact site and a reclamation site located in a populated area (e.g., a construction site located in a city).

"Land with a low potential for public exposure" means land that the public uses infrequently. This includes, but is not limited to, agricultural land, forest, and a reclamation site located in an unpopulated area (e.g., a strip mine located in a rural area).

"Limitation" means any restriction imposed on quantities, rates or concentration of pollutants which are managed by pollutant management activities.

"Liner" means soil or synthetic material that has a hydraulic conductivity of 1 X 10^-7 centimeters per second or less.

"Local monitor" means a person or persons employed by a local government to perform the duties of monitoring the operations of land appliers pursuant to a local ordinance.

"Local ordinance" means an ordinance adopted by counties, cities, or towns in accordance with § 62.1-44.19:3 of the Code of Virginia.

"Malodor" means an unusually strong or offensive odor associated with biosolids or sewage sludge as distinguished from odors commonly associated with biosolids or sewage sludge.

"Monitoring report" means forms supplied by the department for use in reporting of self-monitoring results of the permittee.

"Monthly average" means the arithmetic mean of all measurements taken during the month.

"Municipality" means a city, county, town, district association, or other public body (including an intermunicipal agency of two or more of the foregoing entities) created by or under state law; an Indian tribe or an authorized Indian tribal organization having jurisdiction over sewage sludge or biosolids management; or a designated and approved management agency under § 208 of the federal Clean Water Act, as amended. The definition includes a special district created under state law, such as a water district, sewer district, sanitary district, utility district, drainage district, or similar entity; or an integrated waste management facility as defined in § 201(e) of the federal Clean Water Act, as amended, that has as one of its principal responsibilities the treatment, transport, use, or disposal of sewage sludge or biosolids.

"Nonpoint source" means a source of pollution, such as a farm or forest land runoff, urban storm water runoff or mine runoff that is not collected or discharged as a point source.

"Odor sensitive receptor" means, in the context of land application of biosolids, any health care facility, such as hospitals, convalescent homes, etc. or a building or outdoor facility regularly used to host or serve large groups of people such as schools, dormitories, or athletic and other recreational facilities.

"Operate" means the act of any person who may have an impact on either the finished water quality at a waterworks or the final effluent at a sewage treatment works, such as to (i) place into or take out of service a unit process or unit processes, (ii) make or cause adjustments in the operation of a unit process or unit processes at a treatment works, or (iii) manage sewage sludge or biosolids.

"Operator" means any individual employed or appointed by any owner, and who is designated by such owner to be the person in responsible charge, such as a supervisor, a shift operator, or a substitute in charge, and whose duties include testing or evaluation to control waterworks or wastewater works operations. Not included in this definition are superintendents or directors of public works, city engineers, or other municipal or industrial officials whose duties do not include the actual operation or direct supervision of waterworks or wastewater works.

"Other container" means either an open or closed receptacle. This includes, but is not limited to, a bucket, a box, a carton, and a vehicle or trailer with a load capacity of one metric ton or less.

"Overflow" means the unintentional discharge of wastes from any portion of a treatment works.

"Owner" means the Commonwealth or any of its political subdivisions including sanitary districts, sanitation district commissions and authorities; federal agencies; any individual; any group of individuals acting individually or as a group; or any public or private institution, corporation, company, partnership, firm, or association that owns or proposes to own a sewerage system or treatment works as defined in § 62.1-44.3 of the Code of Virginia.

"Pasture" means land on which animals feed directly on feed crops such as legumes, grasses, grain stubble, or stover.

"Pathogenic organisms" means disease-causing organisms. These include, but are not limited to, certain bacteria, protozoa, viruses, and viable helminth ova.

"Permittee" means an owner or operator who has a currently effective VPA permit issued by the board or the department.

"Person who prepares biosolids" means either the person who generates biosolids during the treatment of domestic sewage in a treatment works or the person who derives the material from sewage sludge.

"pH" means the logarithm of the reciprocal of the hydrogen ion concentration measured at 25°C or measured at another temperature and then converted to an equivalent value at 25°C.

"Place sewage sludge" or "sewage sludge placed" means disposal of sewage sludge on a surface disposal site.

"Point source" means any discernible, defined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agricultural land.

"Pollutant" means, in regard to wastewater, any substance, radioactive material, or heat which causes or contributes to, or may cause or contribute to, pollution. It does not mean (i) sewage from vessels; or (ii) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well is used either to facilitate production or for disposal purposes if approved by Department of Mines Minerals and Energy unless the board determines that such injection or disposal will result in the degradation of ground or surface water resources.

"Pollutant" means, in regard to sewage sludge or biosolids, an organic substance, an inorganic substance, a combination of organic and inorganic substances, or a pathogenic organism that, after discharge and upon exposure, ingestion, inhalation, or assimilation into an organism either directly from the environment or indirectly by ingestion through the food chain, could, on the basis of information available to the board, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunction in reproduction), or physical deformations in either organisms or offspring of the organisms.

"Pollutant limit" means a numerical value that describes the amount of a pollutant allowed per unit amount of biosolids (e.g., milligrams per kilogram of total solids), the amount of a pollutant that can be applied to a unit area of land (e.g., kilograms per hectare), or the volume of a material that can be applied to a unit area of land (e.g., gallons per acre).

"Pollutant management activity" means a treatment works with a potential or actual discharge to state waters, but which does not have a point source discharge to surface waters.

"Pollution" means such alteration of the physical, chemical, or biological properties of any state waters or soil as will, or is likely to, create a nuisance or render such waters or soil: (i) harmful or detrimental or injurious to the public health, safety, or welfare or to the health of animals, fish, or aquatic life; (ii) unsuitable despite reasonable treatment for use as present or possible future sources of public water supply; or (iii) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses. Such alteration is also deemed to be pollution, if there occurs: (a) an alteration of the physical, chemical, or biological property of state waters or soil, or a discharge or a deposit of sewage, industrial wastes, or other wastes to state waters or soil 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 or soil by other owners, is sufficient to cause pollution; (b) the discharge of untreated sewage by any owner into state waters or soil; or (c) the contravention of standards of air or water quality duly established by the board.

"Poultry grower" or "grower" means any person who owns or operates a confined poultry feeding operation.

"Poultry waste" means dry poultry litter and composted dead poultry.

"Poultry waste broker" or "broker" means a person who possesses or controls poultry waste that is not generated on an animal feeding operation under his operational control and transfers or hauls poultry waste to other persons. If the entity is defined as a broker they cannot be defined as a hauler for the purposes of this regulation.

"Poultry waste end-user" means any recipient of transferred poultry waste who stores or utilizes the waste as fertilizer, fuel, feedstock, livestock feed, or other beneficial end use for an operation under his control.

"Poultry waste hauler" or "hauler" means a person who provides transportation of transferred poultry waste from one entity to another and is not otherwise involved in the transfer or transaction of the waste nor responsible for determining the recipient of the waste. The responsibility of the recordkeeping and reporting remains with the entities to which the service was provided: grower, broker, and end-user.

"Primary sludge" means sewage sludge removed from primary settling tanks that is readily thickened by gravity thickeners.

"Privately owned treatment works (PVOTW)" means any sewage treatment works not publicly owned.

"Process" means a system, or an arrangement of equipment or other devices that remove from waste materials pollutants including, but not limited to, a treatment works or portions thereof.

"Public contact site" means land with a high potential for contact by the public. This includes, but is not limited to, public parks, ball fields, cemeteries, and golf courses.

"Publicly owned treatment works (POTW)" means any sewage treatment works that is owned by a state or municipality. Sewers, pipes, or other conveyances are included in this definition only if they convey wastewater to a POTW providing treatment.

"Public hearing" means a fact-finding proceeding held to afford interested persons an opportunity to submit factual data, views, and arguments to the board.

"Reclamation site" means drastically disturbed land that is reclaimed using biosolids. This includes, but is not limited to, strip mines and construction sites.

"Reimbursement application" means forms approved by the department to be used to apply for reimbursement of local monitoring costs for land application of biosolids in accordance with a local ordinance.

"Run-off" means rainwater, leachate, or other liquid that drains overland on any part of a land surface and runs off of the land surface.

"Schedule of compliance" means a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with the federal Clean Water Act (33 USC 1251 et seq.), the law, and board regulations, standards and policies.

"Setback area" means the area of land between the boundary of the land application area and adjacent features where biosolids or other managed pollutants may not be land applied.

"Sewage" means the water-carried and nonwater-carried human excrement, kitchen, laundry, shower, bath, or lavatory wastes, separately or together with such underground, surface, storm, and other water and liquid industrial wastes as may be present from residences, buildings, vehicles, industrial establishments, or other places.

"Sewage sludge" means any solid, semisolid, or liquid residue generated during the treatment of domestic sewage in a treatment works. Sewage sludge includes, but is not limited to, domestic septage; scum or solids removed in primary, secondary, or advanced wastewater treatment processes; and a material derived from sewage sludge. Sewage sludge does not include ash generated during the firing of sewage sludge in a sewage sludge incinerator or grit and screenings generated during preliminary treatment of domestic sewage in a treatment works.

"Sewage sludge unit" means land on which only sewage sludge is placed for final disposal. This does not include land on which sewage sludge is either stored or treated. Land does not include surface waters.

"Sewage sludge use or disposal" means the collection, storage, treatment, transportation, processing, monitoring, use, or disposal of sewage sludge.

"Site" means the area of land within a defined boundary where an activity is proposed or permitted.

"Sludge" means solids, residues, and precipitates separated from or created by the unit processes of a treatment works.

"Sludge management" means the treatment, handling, transportation, storage, use, distribution, or disposal of sewage sludge.

"Specific oxygen uptake rate" or "SOUR" means the mass of oxygen consumed per unit time per mass of total solids (dry weight basis) in the sewage sludge.

"State waters" means all water on the surface or under the ground wholly or partially within or bordering the state or within its jurisdiction.

"State Water Control Law (law)" means Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia.

"Store sewage sludge" or "storage of sewage sludge" means the placement of sewage sludge on land on which the sewage sludge remains for two years or less. This does not include the placement of sewage sludge on land for treatment.

"Substantial compliance" means designs and practices that do not exactly conform to the standards set forth in this chapter as contained in documents submitted pursuant to 9VAC25-32-340, but whose construction or implementation will not substantially affect health considerations or performance.

"Supernatant" means a liquid obtained from separation of suspended matter during sludge treatment or storage.

"Surface disposal site" means an area of land that contains one or more active sewage sludge units.

"Surface water" means:

1. All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

2. All interstate waters, including interstate "wetlands";

3. All other waters such as inter/intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, "wetlands," sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:

a. Which 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. Which are used or could be used for industrial purposes by industries in interstate commerce;

4. All impoundments of waters otherwise defined as surface waters of the United States 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.

"Total solids" means the materials in sewage sludge that remain as residue when the sewage sludge is dried to 103°C to 105°C.

"Toxic pollutant" means any pollutant listed as toxic under § 307 (a)(1) of the CWA or, in the case of "sludge use or disposal practices," any pollutant identified in regulations implementing § 405 (d) of the CWA.

"Toxicity" means the inherent potential or capacity of a material to cause adverse effects in a living organism, including acute or chronic effects to aquatic life, detrimental effects on human health, or other adverse environmental effects.

"Treatment facility" means only those mechanical power driven devices necessary for the transmission and treatment of pollutants (e.g., pump stations, unit treatment processes).

"Treat sewage sludge" or "treatment of sewage sludge" means the preparation of sewage sludge for final use or disposal. This includes, but is not limited to, thickening, stabilization, and dewatering of sewage sludge. This does not include storage of sewage sludge.

"Treatment works" means either a federally owned, publicly owned, or privately owned device or system used to treat (including recycle and reclaim) either domestic sewage or a combination of domestic sewage and industrial waste of a liquid nature. Treatment works may include but are not limited to pumping, power, and other equipment and their appurtenances; septic tanks; and any works, including land, that are or will be (i) an integral part of the treatment process or (ii) used for ultimate disposal of residues or effluents resulting from such treatment. "Treatment works" does not include biosolids use on privately owned agricultural land.

"Twenty-five-year, 24-hour storm event" means the maximum 24-hour precipitation event with a probable recurrence interval of once in 25 years as established by the National Weather Service or appropriate regional or state rainfall probability information.

"Unstabilized solids" means organic materials in sewage sludge that have not been treated in either an aerobic or anaerobic treatment process.

"Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit limitations because of factors beyond the permittee's reasonable control. An upset does not include noncompliance caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

"Use" means to manage or recycle a processed waste product in a manner so as to derive a measurable benefit as a result of such management.

"Variance" means a conditional approval based on a waiver of specific regulations to a specific owner relative to a specific situation under documented conditions for a specified period of time.

"Vector attraction" means the characteristic of biosolids or sewage sludge that attracts rodents, flies, mosquitoes, or other organisms capable of transporting infectious agents.

"Vegetated buffer" means a permanent strip of dense perennial vegetation established parallel to the contours of and perpendicular to the dominant slope of the field for the purposes of slowing water runoff, enhancing water infiltration, and minimizing the risk of any potential nutrients or pollutants from leaving the field and reaching surface waters.

"Virginia Pollution Abatement (VPA) permit" means a document issued by the board, pursuant to this chapter, authorizing pollutant management activities under prescribed conditions.

"Virginia Pollutant Discharge Elimination System (VPDES) permit" means a document issued by the board pursuant to 9VAC25-31-10 et seq., authorizing, under prescribed conditions, the potential or actual discharge of pollutants from a point source to surface waters.

"Volatile solids" means the amount of the total solids in sewage sludge lost when the sewage sludge is combusted at 550°C in the presence of excess air.

"VPA application" means the standard form or forms approved by the board for applying for a VPA permit.

"Waste storage facility" means a (i) waste holding pond or tank used to store manure prior to land application or (ii) a lagoon or treatment facility used to digest or reduce the solids or nutrients.

"300 animal units" means 300,000 pounds of live animal weight or the following numbers and types of animals:

a. 300 slaughter and feeder cattle;

b. 200 mature dairy cattle (whether milked or dry cows);

c. 750 swine each weighing over 25 kilograms (approximately 55 pounds);

d. 150 horses;

e. 3,000 sheep or lambs;

f. 16,500 turkeys;

g. 30,000 laying hens or broilers.

"Water quality standards" means the narrative statements for general requirements and numeric limits for specific requirements that describe the water quality necessary to meet and maintain reasonable and beneficial uses. Such standards are established by the board under § 62.1-44.15 (3a) of the Code of Virginia.

B. Generally used technical terms not defined in subsection A of this section or the department's latest definitions of technical terms as used to implement § 62.1-44.15 of the Code of Virginia shall be defined in accordance with "Glossary-Water and Wastewater Control Engineering" published by the American Public Health Association (APHA), American Society of Civil Engineers (ASCE), American Water Works Association (AWWA), and the Water Environment Federation (WEF).

Part III
Public Involvement

9VAC25-32-140. Public notice of VPA permit action and public comment period.

A. Draft VPA permits.

1. Every draft VPA permit shall be given public notice, paid for by the owner, by publication once a week for two successive weeks in a newspaper of general circulation in the area affected by the pollutant management activity except for animal feeding operations as defined in 9VAC25-32-10, when the modifications are to the nutrient management plan.

2. Interested persons shall have a period of at least 30 days following the date of the initial newspaper public notice to submit written comments on the tentative decision and to request a public hearing.

3. The contents of the public notice of an application for a VPA permit shall include:

a. The name and address of the applicant. If the location of the pollutant management activity differs from the address of the applicant the notice shall also state the location of the pollutant management activity including storage and land application sites;

b. A brief description of the business or activity conducted at the facility;

c. A statement of the tentative determination to issue or deny a VPA permit;

d. A brief description of the final determination procedure;

e. The address and phone number of a specific person at the state office from whom further information may be obtained; and

f. A brief description of how to submit comments and request a hearing.

B. VPA permit application.

1. Upon receipt of an application for the issuance of a new or modified permit, the department shall notify in writing the locality wherein the pollutant management activity does or is proposed to take place. This notification shall, at a minimum, include:

a. The name of the applicant;

b. The nature of the application and proposed pollutant management activity;

c. The availability and timing of any comment period; and

d. Upon request, any other information known to, or in the possession of, the board or the department regarding the application except as restricted by 9VAC25-32-150.

2. Whenever the department receives an application for a new permit for land application of biosolids or land disposal of treated sewage, stabilized sewage sludge, or stabilized septage, or an application to reissue with the addition of sites increasing acreage by 50% or more of that authorized in the initial permit, the department shall establish a date for a public meeting to discuss technical issues relating to proposals for land application of biosolids or land disposal of treated sewage, stabilized sewage sludge or stabilized septage. The department shall give notice of the date, time, and place of the public meeting and a description of the proposal by publication in a newspaper of general circulation in the city or county where the proposal is to take place. Public notice of the scheduled meeting shall occur no fewer than seven nor more than 14 days prior to the meeting. The department shall not issue the permit until the public meeting has been held and comment has been received from the local governing body or until 30 days have lapsed from the date of the public meeting.

3. Following the submission of an application for a new permit for land application of biosolids or land disposal of treated sewage, stabilized sewage sludge, or stabilized septage, the department shall make a good faith effort to notify or cause to be notified persons residing on property bordering the sites that contain the proposed land application fields. This notification shall be in a manner selected by the department. For the purposes of this subsection, "site" means all contiguous land under common ownership, but which may contain more than one tax parcel.

4. Public notice shall not be required for submission or approval of plans and specifications or conceptual engineering reports not required to be submitted as part of the application.

C. Following the submission of an application to add a site that is not contiguous to sites included in an existing permit authorizing the land application of biosolids:

1. The department shall notify persons residing on property bordering such site and shall receive written comments from those persons for a period of 30 days. Based upon written comments, the department shall determine whether additional site-specific requirements should be included in the authorization for land application at the site.

2. An application for any permit amendment to increase the acreage authorized by the initial permit by 50% or more shall be considered a major modification and shall be treated as a new application for purposes of public notice and public hearings. The increase in acreage for the purpose of determining the need for the public meeting is the sum of all acreage that has been added to the permit since the last public meeting, plus that proposed to be added.

D. Before issuing any permit, if the board finds that there are localities particularly affected by the permit, the board shall:

1. Publish, or require the applicant to publish, a notice in a local paper of general circulation in the localities affected at least 30 days prior to the close of any public comment period. Such notice shall contain a statement of the estimated local impact of the proposed permit, which at a minimum shall include information on the specific pollutants involved and the total quantity of each which may be discharged; and

2. Mail, by electronic or postal delivery, the notice to the chief elected official and chief administrative officer and planning district commission for those localities.

Written comments shall be accepted by the board for at least 15 days after any public hearing on the permit, unless the board votes to shorten the period. For the purposes of this section, the term "locality particularly affected" means any locality which bears any identified disproportionate material water quality impact which would not be experienced by other localities.

9VAC25-32-250. Confined animal Animal feeding operations.

A. All confined animal feeding operations shall maintain no point source discharge of pollutants to surface waters except in the case of a storm event greater than the 25-year, 24-hour storm. Concentrated confined animal Animal feeding operations having 300 or more animal units utilizing a liquid manure collection and storage system or having 200 or more animal units of poultry are pollutant management activities subject to the VPA permit program. Two or more confined animal feeding operations under common ownership are considered, for the purposes of this regulation, to be a single confined animal feeding operation for the purpose of determining the number of animals at an operation if they adjoin each other or if they use a common area or system for the disposal of wastes.

B. Case-by-case designation of concentrated confined animal feeding operations determination.

1. The board may designate determine that any confined animal feeding operation which that does not fall under the definition of concentrated confined animal feeding operation as defined in 9VAC25-20-10 otherwise qualify for coverage under the VPA general permit and has not been required to obtain a VPDES permit be required to obtain an individual VPA permit upon determining that it is a potential or actual contributor of pollution to state waters. In making this designation determination the following factors shall be considered:

a. The size of the operation;

b. The location of the operation relative to state waters;

c. The means of conveyance of animal wastes and process waters into state waters;

d. The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes and process waste waters into state waters;

e. The compliance history and the ability to make corrections in order to comply with the VPA general permit conditions;

e. f. The means of storage, treatment, or disposal of animal wastes; and

f. g. Other relevant factors.

2. A VPA permit application shall not be required for a concentrated confined an animal feeding operation designated under subject to subdivision 1 of this subsection until the board has conducted an on-site inspection of the operation and determined that the operation shall be regulated under the VPA permit program.

9VAC25-32-255. Requirements for end-users of animal waste and poultry waste.

A. Technical requirements for end-users of animal waste or poultry waste will be established in general permit regulations or individual permits. Technical requirements for end-users of animal waste or poultry waste shall address but not be limited to the following;

1. Proper waste storage;

2. Appropriate land application practices; and

3. Recordkeeping.

B. End-users of animal waste or poultry waste shall comply with technical requirements established as set forth by subsection A of this section.

FORMS (9VAC25-32)

Virginia Pollution Abatement Permit Application, General Instructions (rev. 4/09)

Virginia Pollution Abatement Permit Application, Form A, All Applicants (rev. 4/09)

Virginia Pollution Abatement Permit Application, Form B, Animal Waste (rev. 10/95)

Virginia Pollution Abatement (VPA) Permit Application, Form B, Animal Feeding Operations (AFOs) (rev. 2/13)

Virginia Pollution Abatement Permit Application, Form C, Industrial Waste (rev. 10/95)

Virginia Pollution Abatement Permit Application, Form D, Municipal Effluent and Biosolids Cover Page (rev. 6/13):

Part D-I: Land Application of Municipal Effluent (rev. 4/09)

Part D-II: Land Application of Biosolids (rev. 10/13)

Part D-III: Effluent Characterization Form (rev.4/09)

Part D-IV: Biosolids Characterization Form (rev. 6/13)

Part D-V: Non-Hazardous Waste Declaration (rev. 6/13)

Part D-VI: Land Application Agreement - Biosolids and Industrial Residuals (rev. 9/12)

Part D-VII: Request for Extended Setback from Biosolids Land Application Field (rev. 10/11)

Application for Land Application Supervisor Certification (rev. 2/11)

Application for Renewal of Land Application Supervisor Certification (rev. 2/11)

Sludge Disposal Site Dedication Form, Form A-1 (rev. 11/09)

Liability Requirements for Transport, Storage, and Land Application of Biosolids, Form I, Insurance Liability Endorsement (rev. 10/13)

Liability Requirements for Transport, Storage, and Land Application of Biosolids, Form II, Certificate of Liability Insurance (rev. 10/13)

Liability Requirements for Transport, Storage, and Land Application of Biosolids, Form III, Corporate Letter (rev. 11/09)

Liability Requirements for Transport, Storage, and Land Application of Biosolids, Form IV, Corporate Guarantee (rev. 11/09)

Liability Requirements for Transport, Storage, and Land Application of Biosolids, Form V, Letter of Credit (rev. 11/09)

Liability Requirements for Transport, Storage, and Land Application of Biosolids, Form VI, Trust Agreement (rev. 11/09)

Liability Requirements for Transport, Storage, and Land Application of Biosolids, Form VII, Local Government Financial Test (rev. 10/13)

Liability Requirements for Transport, Storage, and Land Application of Biosolids, Form VIII, Local Government Guarantee (rev. 10/13)

Title of Regulation: 9VAC25-740. Water Reclamation and Reuse Regulation (amending 9VAC25-740-10, 9VAC25-740-30 through 9VAC25-740-180, 9VAC25-740-200; adding 9VAC25-740-45, 9VAC25-740-55, 9VAC25-740-105).

Statutory Authority: § 62.1-44.15 of the Code of Virginia.

Effective Date: January 29, 2014.

Agency Contact: William K. Norris, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4022, FAX (804) 698-4347, or email william.norris@deq.virginia.gov.

Summary:

The amendments (i) allow design or operational deviations for facilities still capable of producing or distributing reclaimed water in a manner protective of the environment and public health; (ii) allow temporary authorization of water reclamation and reuse without a permit during periods of significant drought; (iii) clarify that a VPDES permit modification will be required where diversion of source water from the VPDES permitted discharge to water reclamation and reuse has the potential to cause a significant adverse impact to other beneficial uses of the receiving state water for the discharge; and (iv) improve clarity, reduce redundancies, and correct references throughout the regulations.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

Part I
Definitions and General Program Requirements

9VAC25-740-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

"Beneficial use" means both instream and offstream uses. Instream beneficial uses include, but are not limited to, the protection of fish and wildlife resources and habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. The preservation of instream flows for purposes of the protection of navigation, maintenance of waste assimilation capacity, the protection of fish and wildlife resources and habitat, recreation, [ or ] cultural and aesthetic values is an instream beneficial use of Virginia's waters. Offstream beneficial uses include, but are not limited to, domestic (including public water supply), agricultural, electric power generation, commercial, and industrial uses.

[ "Biological nutrient removal (BNR)" "Biological nutrient removal" or "BNR" ] means treatment that achieves [ an ] annual average [ of concentrations less than or equal to ] 8.0 mg/l total nitrogen (N) and 1.0 mg/l total phosphorus (P).

"Board" means the Virginia State Water Control Board or State Water Control Board.

"Bulk irrigation reuse" means reuse of reclaimed water for irrigation of an area greater than five acres on one contiguous property.

"Class I reliability" means a measure of reliability that requires a treatment works design to provide continuous satisfactory operation during power failures, flooding, peak loads, equipment failure, and maintenance shut-down. This class includes design features, such as additional electrical power sources, additional flow storage capacity, and additional treatment units that provide operation in accordance with the issued certificate or permit requirements.

"Conjunctive system" means a system consisting of a wastewater treatment works and reclamation system having no or minimal separation of treatment processes between the treatment works and the reclamation system.

"Controlled use" means a use of reclaimed water authorized in accordance with this chapter.

"Corrective action threshold" or "CAT" means a bacterial, turbidity [ , ] or total residual chlorine standard for reclaimed water at which measures shall be implemented to correct operational problems of the reclamation system within a specified period, or divert flow from the reclamation treatment process in accordance with this chapter.

"Design flow" means the capacity at which a treatment works is designed to reliably treat an average 24-hour influent flow rate, assessed over a period of a month for all months of operation within a year, including appropriate peak factors provided to meet applicable reliability and redundancy requirements. The average 24-hour influent flow rate shall be based on projected estimates of influent flow to be received by the treatment works.

"Designated design flow" means the design flow of a reclamation system that may be some percentage of or equal to the design flow of a treatment works providing [ wastewater or partially treated wastewater source water ] to the reclamation system to produce reclaimed water.

"Direct beneficial use" means the use of reclaimed water in a manner protective of the environment and public health that involves transport of the reclaimed water from the point of reclamation treatment and production to the point of use without an intervening discharge to waters of the state.

"Direct injection" means the discharge of reclaimed water directly into groundwater.

"Direct potable reuse" means the discharge of reclaimed water directly into a drinking water treatment facility or into a drinking water distribution system. This includes storage facilities associated with the drinking water treatment facility or drinking water distribution system that are not surface or ground waters of the state.

"Director" means the Director of the Department of Environmental Quality or an authorized representative.

"Disinfection" means the destruction, inactivation, or removal of pathogenic microorganisms by chemical, physical, or biological means. Disinfection may be accomplished by chlorination, ozonation, or other chemical disinfectants; UV radiation; or other processes.

"Disposal" means the discharge of effluent to injection wells, effluent outfalls, subsurface drain fields, or other facilities utilized primarily for the release of effluents into the environment without deriving a direct beneficial use.

"Domestic sewage" means sewage derived from the normal family or household activities, including drinking, laundering, bathing, cooking, heating, cleaning and flushing toilets.

"Drip irrigation" means the slow and uniform above-ground application of water to individual plants and vegetated cover using tubing and drip devices or emitters. Drip irrigation may include below-ground applications of reclaimed water as specified in 9VAC25-740-90 B.

"Effluent," unless specifically stated otherwise, means treated wastewater that is not reused after flowing out of any treatment works.

"End user" means a person or entity that directly uses reclaimed water.

"Filtration" means the passing of wastewater through a conventional technology, such as sand, anthracite or cloth; or an advanced technology, such as microfiltration, ultrafiltration, nanofiltration or reverse osmosis membrane.

"Food crops commercially processed" means food crops that, prior to sale to the public or others, have undergone chemical or physical processing sufficient to remove or destroy pathogens.

"Food crops not commercially processed" means food crops that, prior to sale to the public or others, have not undergone chemical or physical processing sufficient to remove or destroy pathogens.

"Gray water" means untreated wastewater from bathtubs, showers, lavatory fixtures, wash basins, washing machines, and laundry tubs. It does not include wastewater from toilets, urinals, kitchen sinks, dishwashers, or laundry water from soiled diapers.

"Ground water" "Groundwater" means any water, except capillary moisture, beneath the land surface in the zone of saturation or beneath the bed of any stream, lake, reservoir or other body of surface water wholly or partially within the boundaries of this Commonwealth, whatever the subsurface geologic structure in which such water stands, flows, percolates or otherwise occurs.

"Harvested rainwater" means rainwater that has been collected off of a rooftop through a system that concentrates the rooftop flow and conveys this to a storage device, container, or vessel with the intention of using this water before discharge to waterways via sanitary sewer systems, septic tank or other onsite treatment and disposal systems, or a land based discharge.

"Indirect nonpotable reuse" means the discharge of reclaimed water to a receiving surface water for the purpose of intentionally augmenting a water source, followed by withdrawal from the water source with or without mixing and transport to the withdrawal location, for reuse or distribution for reuse other than indirect potable reuse.

"Indirect potable reuse" or "IPR" means the discharge of reclaimed water to a receiving surface water for the purpose of intentionally augmenting a water supply source, with subsequent withdrawal after mixing with the ambient surface water and transport to the withdrawal location, followed by treatment and distribution for drinking water and other potable water purposes.

"Indirect reuse" means the use of reclaimed water subsequent to discharge to surface waters of the state, including wetlands, pursuant to a VPDES permit.

"Industrial wastewater" means wastewater resulting from any process of industry, manufacture, trade or business, or from the development of any natural resources.

"Irrigation" means the application of water to land for plant use at a rate that undesirable plant water stress does not occur.

"Landscape impoundment" means a body of water that contains reclaimed water, is not intended for public contact, and is used primarily for aesthetic enjoyment. Landscape impoundments include, but are not limited to, decorative pools, fountains, ponds and lagoons; located outdoors or indoors.

"Level 1" means a degree of treatment at which reclaimed water has received, at a minimum, secondary treatment with filtration and higher-level disinfection, and meets all other applicable standards specified in 9VAC25-740-70.

"Level 2" means a degree of treatment at which reclaimed water has received, at a minimum, secondary treatment and standard disinfection, and meets all other applicable standards specified in 9VAC25-740-70.

"Municipal wastewater" means sewage.

"Nonbulk irrigation reuse" means the reuse of reclaimed water for irrigation of individual areas less than or equal to five acres.

"Nonpotable water" means any water, including reclaimed water, not meeting the definition of potable water.

"Nonsystem storage" means storage for reclaimed water that is other than system storage and is used at a location downstream of the service connection to the reclaimed water distribution system to equalize flow to end users.

"Nutrient management plan (NMP)" "Nutrient management plan" or "NMP" means a plan prepared by a nutrient management planner certified by the Department of Conservation and Recreation to manage the amount, placement, timing, and application of plant nutrients from liquid, solid or semisolid manures, fertilizers, biosolids, or other materials, for the purpose of producing crops and reducing nutrient loss to the environment.

"Owner" means the Commonwealth or any of its political subdivisions including, but not limited to, sanitation district commissions and authorities, and any public or private institution, corporation, association, firm or company organized or existing under the laws of this or any other state or country, or any officer or agency of the United States, or any person or group of persons acting individually or as a group that owns, operates, charters, rents, or otherwise exercises control over or is responsible for the production or distribution of reclaimed water, or any facility or operation that produces or distributes reclaimed water.

"Permit" means an authorization, certificate, license, or equivalent control document issued by the board to implement the requirements of this chapter.

"Point of compliance" or "POC" means a point at which compliance with the standards of this chapter is required.

"Pollutants of concern" means any pollutants that might reasonably be expected to be discharged to a publicly or privately owned treatment works in sufficient amounts to pass through or interfere with the works, contaminate sludge generated by the works, cause problems in the collection system of the works, or jeopardize the health of employees at the works and the public.

"Potable water" means water fit for human consumption and domestic use that is sanitary and normally free of minerals, organic substances, and toxic agents in excess of reasonable amounts for domestic usage in the area served and normally adequate in quantity and quality for the minimum health requirements of the persons served.

"Public access area" means an area that is intended to be accessible to the general public, such as golf courses, cemeteries, parks, athletic fields, school yards, and landscape areas. Public access areas include private property that is not open to the public at large, but is intended for frequent use by many persons. Presence of authorized farm personnel or other authorized treatment plant, utilities system, or reuse system personnel does not constitute public access.

"Reclamation" means the treatment of domestic, municipal or industrial wastewater or sewage to produce reclaimed water for a water reuse that would not otherwise occur.

"Reclamation system" means a treatment works that treats domestic, municipal or industrial wastewater or sewage to produce reclaimed water for a water reuse that would not otherwise occur.

"Reclaimed water" means water resulting from the treatment of domestic, municipal or industrial wastewater that is suitable for a water reuse that would not otherwise occur. Specifically excluded from this definition is "gray water." For the purposes of this chapter, "harvested rainwater" and "stormwater" are also excluded from this definition.

"Reclaimed water agent" means a person or entity that holds a permit to distribute reclaimed water to one or more end users.

"Reclaimed water distribution system" means a network of pipes, pumping facilities, storage facilities, and appurtenances designed to convey and distribute reclaimed water from one or more reclamation systems to [ one or more ] end [ users uses ].

"Reclamation" means the treatment of domestic, municipal, or industrial wastewater or sewage to produce reclaimed water for a water reuse that would not otherwise occur.

"Reclamation system" means a treatment works that treats domestic, municipal, or industrial wastewater or sewage to produce reclaimed water for a water reuse that would not otherwise occur.

"Reject water storage" means storage for water diverted by a reclamation system or satellite reclamation system that does not meet applicable reclaimed water standards.

"Reliability Class I" means a measure of reliability that requires a treatment works design to provide continuous satisfactory operation during power failures, flooding, peak loads, equipment failure, and maintenance shut-down. This class includes design features, such as additional electrical power sources, additional flow storage capacity, and additional treatment units that provide operation in accordance with the issued certificate or permit requirements. The definition of Reliability Class I contained in this chapter is in addition to but does not supersede the definition of Reliability Class I contained in the Sewage Collection and Treatment Regulations (9VAC25-790).

"Reuse" or "water reuse" means the use of reclaimed water for a direct beneficial use, an indirect potable reuse, an indirect nonpotable reuse, or a controlled use in accordance with this chapter.

"Reuse system" means an installation or method of operation that uses reclaimed water for a water reuse in accordance with this chapter.

"Restricted access" means limited access by humans to areas where [ , ] nonpotable water, including reclaimed water, is used, resulting in minimal or no potential for human contact.

"Satellite reclamation system" or "SRS" means a conjunctive wastewater treatment works and reclamation system that operates within or parallel to a sewage collection system to treat a portion of the available wastewater flow in the collection system to produce reclaimed water for reuse. Satellite reclamation systems do not have a discharge to surface waters, but may return their treatment process wastewater and residuals to the sewage collection system.

"Secondary treatment" means a biological treatment process for wastewater that achieves the minimum level of effluent quality defined by the federal secondary treatment regulation in 40 CFR § 133.102 (2001).

"Service area" means a geographic area that receives reclaimed water from a reclaimed water distribution system or directly from a reclamation system for approved reuses within that area.

"Sewage" means the water-carried human wastes and nonwater-carried human excrement, kitchen, laundry, shower, bath or lavatory wastes, separately or together with such underground, surface, storm and other water and liquid industrial wastes as may be present from residences, buildings, vehicles, industrial establishments or other places.

"Significant industrial user" or "SIU" shall have the meaning set forth in the VPDES Permit Regulation (9VAC25-31-10).

"Source water" means untreated or partially treated wastewater supplied for reclamation.

"State waters" or "waters of the state" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

"State Water Control [ Law or Law" Law" or "Law" ] means Chapter 3.1 (§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia.

"Stormwater" 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.

"Supplemental irrigation" means irrigation, which in combination with rainfall, meets but does not exceed the water necessary to maximize production or optimize growth of the irrigated vegetation.

"Surface waters" means all waters in the Commonwealth, except ground water groundwater as defined in § 62.1-255 of the Code of Virginia.

"System storage" means storage on or off the site and considered part of a reclamation system, satellite reclamation system SRS, or reclaimed water distribution system that is used to store reclaimed water produced by the reclamation system or satellite reclamation system SRS and to equalize flow to or within a reclaimed water distribution system.

"Total maximum daily load" or "TMDL" shall have the meaning set forth in the Water Quality [ Management ] Planning Regulation (9VAC25-720).

"Treatment works" means any devices and systems used for the storage, treatment, recycling or reclamation of sewage or liquid industrial waste, or other waste, or that are necessary to recycle or reuse water, including intercepting sewers, outfall sewers, sewage collection systems, individual systems, pumping, power and other equipment and their appurtenances, extensions, improvements, remodeling, additions, or alterations thereof; or any works, including land that will be an integral part of the treatment process or is used for ultimate disposal of residues resulting from such treatment; or any other method or system used for preventing, abating, reducing, storing, treating, separating, or disposing of municipal waste or industrial waste, including waste in combined sewer water and sanitary sewer systems.

"Underground aquifer" means an aquifer or portion of an aquifer that supplies any public water system or that contains a sufficient quantity of groundwater to supply a public water system, and currently supplies drinking water for human consumption, or that contains fewer than 10,000 mg/l total dissolved solids and is not an exempted aquifer.

"Unintentional reuse" means the unintentional or unplanned use of reclaimed water subsequent to discharge to surface waters of the state, including wetlands, pursuant to a VPDES permit.

"Unrestricted access" means unlimited or minimally limited access by humans to areas where nonpotable water, including reclaimed water, is used, resulting in a high potential for human contact.

"User" means end user.

"Virginia Pollution Abatement (VPA) Permit" "Virginia Pollution Abatement [ Permit" permit" ] or "VPA [ Permit" permit" ] means a document issued by the board, pursuant to the Virginia Pollution Abatement [ (VPA) ] Permit Regulation (9VAC25-32), authorizing pollutant management activities under prescribed conditions.

"Virginia Pollutant Discharge Elimination System (VPDES) Permit" "Virginia Pollutant Discharge Elimination System [ Permit" permit" ] or "VPDES [ Permit" permit" ] means a document issued by the board, pursuant to the Virginia Pollutant Discharge Elimination System [ (VPDES) ] Permit Regulation (9VAC25-31), authorizing, under prescribed conditions the potential or actual discharge of pollutants from a point source to surface waters and the use or disposal of sewage sludge. Under the approved state program, a VPDES permit is equivalent to an NPDES permit.

"Wastewater" means untreated liquid and water carried water-carried industrial wastes and domestic sewage from residential dwellings, commercial buildings, industrial and manufacturing facilities and institutions.

"Water reclamation" means the reclamation of wastewater or treated effluent for reuse.

"Waterworks" means a system that serves piped water for drinking or domestic use to (i) the public, (ii) at least 15 connections, or (iii) an average of 25 individuals for at least 60 days out of the year. The term "waterworks" shall include all structures, equipment, and appurtenances used in the storage, collection, purification, treatment, and distribution of pure water, except the piping and fixtures inside the building where such water is delivered.

9VAC25-740-30. Applicability and transition.

A. The requirements of this chapter shall apply to water reclamation systems, reclaimed water distribution systems, and water reuse unless specifically excluded under 9VAC25-740-50 A. The requirements shall apply to all new water reclamation systems, reclaimed water distribution systems and, as applicable, water reuses for which Virginia Pollution Abatement (VPA) or Virginia Pollutant Discharge Elimination System (VPDES) permit applications are received after October 1, 2008. The requirements may also be applied to all existing permitted facilities producing, distributing or using reclaimed water through a permit modification or reissuance procedure and shall be applied when such facilities are to be modified or expanded unless specifically excluded under 9VAC25-740-50 A. The owners of existing water reclamation systems, reclaimed water distribution systems and, as applicable, water reuses that do not have a VPA or VPDES permit shall submit a complete VPA or VPDES permit application or other necessary information as prescribed under 9VAC25-740-40 within 180 days of being requested by the board.

B. For the purposes of this chapter:

1. The incorporation of standards, monitoring requirements and special conditions for water reclamation and reuse into a VPA permit shall be considered a minor modification unless they alter other conditions of the permit specifically related to the pollutant management activity for which the permit was originally issued.

2. Standards, monitoring requirements and special conditions for water reclamation and reuse may be [ administratively ] authorized for a VPDES permit [ without a through:

a. A modification of the ] permit [ modification unless they where such standards, monitoring requirements, and special conditions would ] effectively alter other conditions of the permit specifically related to the effluent discharge for which the permit was originally issued [ , or where the diversion of source water from the VPDES permitted discharge to water reclamation and reuse has the potential to cause a significant adverse impact to other beneficial uses of the receiving state water, or both; or

b. An administrative authorization where such standards, monitoring requirements, and special conditions would not alter other conditions of the permit specifically related to the effluent discharge for which the permit was originally issued, and where the diversion of source water from the VPDES permitted discharge to water reclamation and reuse does not have the potential to cause a significant adverse impact to other beneficial uses of the receiving state water ]. The administrative authorization shall have the full effect of the VPDES permit until such time that it is incorporated into the VPDES permit through reissuance or [ major ] modification.

3. Minor modification Modification of a VPA or VPDES permit or the issuance of an administrative authorization associated with a VPDES permit described in subdivisions 1 and 2 of this subsection shall require an application for a water reclamation and reuse project in accordance with 9VAC25-740-100.

9VAC25-740-40. Permitting requirements.

A. The owner of the reclamation system and the owner of the reclaimed water distribution system or the reclaimed water agent shall obtain a VPDES or VPA permit to produce and distribute reclaimed water, unless otherwise excluded from the requirements of this chapter under 9VAC25-740-50 A. Where both the reclamation system and the reclaimed water distribution system are under common ownership and management, one permit may be issued to the owner. Permit coverage may be provided through modification or reissuance of an existing VPA permit, or reissuance of or administrative authorization for an existing VPDES permit to include standards, monitoring requirements and special conditions that address water reclamation and reuse.

B. The owner of a satellite reclamation system (SRS) shall obtain a VPA permit. Alternatively and at the discretion of the board, a satellite reclamation system SRS may be authorized under a VPA or VPDES permit issued to a wastewater treatment works that is under common ownership or management with the satellite reclamation system SRS and receives wastewater and residuals discharged by the satellite reclamation system SRS.

C. Each end user shall enter into a service agreement or contract with all reclaimed water agents from which the end user receives reclaimed water prior to receipt of such water. Monitoring and management of individual end users of reclaimed water shall be by the permittee reclaimed water agents with whom the end users have a service connection, and through the service agreements or contracts between the permittee reclaimed water agents and the individual end users unless affected by a permit issued to an end user as described in subsection F of this section.

D. Where a reclamation system and a reclaimed water distribution system that receives reclaimed water from the reclamation system are under separate ownership and management, and the reclaimed water distribution system does not distribute reclaimed water to end users other than to the owner or management of that system, the reclaimed water distribution system shall may not require a permit provided a service agreement or contract is established between the reclamation system and the reclaimed water distribution system.

E. A separate permit may be required for end users receiving reclaimed water directly from more than one reclamation system, satellite reclamation system SRS, reclaimed water distribution system, or a combination thereof. An end user may be authorized under the permit issued to one of the reclamation systems, satellite reclamation systems SRSs, or reclaimed water distribution systems that supply reclaimed water to the end user, provided the end user is under common ownership or management with the permitted system.

F. Property irrigated with reclaimed water from a reclamation system, satellite reclamation system SRS, or reclaimed water distribution system under common ownership or management with that property, shall be regulated by the permit issued to the reclamation system, satellite reclamation system SRS, or reclaimed water distribution system providing reclaimed water to the irrigated property.

G. A reclamation system shall not discharge reclaimed or reject water to surface waters of the state in lieu of providing storage, discharging to another permitted reuse system, if applicable; returning reclaimed or reject water to a wastewater treatment works; or suspending production of reclaimed water; without authorization to discharge under a VPDES [ Permit permit ].

9VAC25-740-45. Emergency authorization for the production, distribution, or reuse of reclaimed water.

A. The board may issue an emergency authorization for the production, distribution, or reuse of reclaimed water when it finds that due to drought there is an insufficient public water supply that may result in a substantial threat to public safety. The emergency authorization may be issued only after:

1. Conservation measures mandated by local or state authorities have failed to protect public safety, and

2. The Virginia Department of Health has been notified of the application to issue an emergency authorization and has been provided not less than 14 days to submit comments or recommendations to the board on the application.

B. An emergency authorization may be issued in addition to an Emergency Virginia Water Protection Permit ( [ as provided in ] 9VAC25-210) for a new or increased public water supply withdrawal.

C. An emergency authorization may be issued to only existing VPDES or VPA permitted municipal treatment works that:

1. Are not currently authorized to produce, distribute, or reuse reclaimed water in accordance with 9VAC25-740-40;

2. Are currently capable of producing reclaimed water meeting minimum standard requirements of 9VAC25-740-90 for proposed reuses listed in the application for an emergency authorization; and

3. Do not have significant industrial users (SIUs), or do have SIUs and a pretreatment program developed, approved, and maintained in accordance with Part VII (9VAC25-31-730 [ through 9VAC25-31-900 et seq. ] ) of the VPDES Permit Regulation.

D. An emergency authorization may be issued for only reuses of reclaimed water deemed necessary by the board. In no case shall an emergency authorization be issued in lieu of a VPDES permit action for a reuse that involves a discharge of reclaimed water to surface waters.

E. An application for an emergency authorization issued pursuant to this section shall provide the information specified in 9VAC25-740-105. No later than 180 days after the issuance of an emergency authorization, the holder of the authorization shall apply for coverage under a VPDES or VPA permit in accordance with 9VAC25-740-40. Thereafter, the emergency authorization shall remain in effect until the board acts upon the application for the VPDES or VPA permit in accordance with 9VAC25-740-30 B.

F. There shall be no public comment period for the issuance of an emergency authorization.

9VAC25-740-50. Exclusions and prohibitions.

A. Exclusions. Exclusion from the requirements of this chapter does not relieve any owner of the operations identified in this section of the responsibility to comply with any other applicable federal, state, or local statutes, regulations, or ordinances. The following are excluded from the requirements of this chapter:

1. Activities permitted by the Virginia Department of Health (VDH), such as, but not limited to, septic tank drainfield systems and other [ on-site onsite ] sewage treatment and disposal systems, and water treatment plant recycle flows. This exclusion does not apply to alternative onsite sewage systems as defined in 12VAC5-613 (Regulations for Alternative Onsite Sewage Systems) with an average daily sewage flow in excess of 1,000 gallons per day that are concurrently permitted by the board and VDH to allow sewage reclamation and reuse in addition to onsite sewage treatment and disposal.

2. Utilization of gray water, harvested rainwater, or stormwater.

3. Nonpotable water produced and utilized on-site by the same treatment works for facilities permitted through a VPDES or VPA permit. This includes the use of nonpotable water at the treatment works site for incidental landscape irrigation that is not identified as land treatment defined in the Sewage Collection and Treatment Regulations (9VAC25-790). The treatment works site shall include property that is either contiguous to or in the immediate vicinity of the parcel of land upon which the treatment works is located, provided such property is under common ownership or management with the treatment works. This exclusion does not apply to nonpotable water produced by treatment works authorized by the VPDES General Permit for Domestic Sewage Discharges Less Than or Equal to 1,000 Gallons Per Day (9VAC25-110).

4. Recycle flows within a treatment works.

5. Industrial effluents or other industrial water streams created prior to final treatment and used for water re-circulation, recycle, or reuse systems located on the same property as the industrial facility, provided:

a. The water used in these systems does not contain or is not expected to contain pathogens or other constituents in sufficient quantities and with a potential for human contact as may be harmful to human health;

b. These systems are closed or isolated to prevent worker contact with the water of the systems; or

c. Other measures are in place, including but not limited to, applicable federal and state occupational safety and health standards and requirements, to adequately inform and protect employees from pathogens or other constituents that may be harmful to human health in the water to be re-circulated, recycled or reused at the facility.

6. Land treatment systems [ defined described ] in the Sewage Collection and Treatment Regulations (9VAC25-790). Such use of wastewater effluent, either existing or proposed, must be authorized by a VPA or VPDES permit and must be on land owned or under the direct long-term control of the permittee.

7. Indirect Unintentional reuse [ with the exception of indirect potable reuse projects proposed after October 1, 2008 and.

8. Existing ] indirect nonpotable reuse projects [ proposed after (effective date of amended regulation) that as of January 29, 2014, are authorized by a VPDES permit to discharge to surface waters of the state ].

[ 8. 9. ] Existing indirect potable reuse projects that upon October 1, 2008, are authorized by a VPDES permit to discharge to surface waters of the state, and future expansions of these projects.

[ 9. 10. ] Direct injection of reclaimed water into any underground aquifer authorized by EPA under the Safe Drinking Water Act, Underground Injection Control Program (UIC), 40 CFR Part 144; or other applicable federal and state laws and regulations.

Exclusion from the requirements of this chapter does not relieve any owner of the above operations of the responsibility to comply with any other applicable federal, state or local statute, ordinance or regulations.

B. Prohibitions. The following are prohibited under this chapter:

1. Direct potable reuse;

2. The reuse of reclaimed water for any purpose inside a residential or domestic dwelling or a building containing a residential or domestic unit distributed to [ one or two family one-family or two-family ] dwellings. This prohibition does not apply to reuses of reclaimed water outside of and on the same property as [ one or two family one-family or two-family ] dwellings where the reclaimed water is not distributed to such reuses by way of plumbing within the dwellings;

3. The reuse of reclaimed water to fill residential swimming pools, hot tubs or wading pools;

4. The reuse of reclaimed water for food preparation or incorporation as an ingredient into food or beverage for human consumption;

5. Bypass of untreated or partially treated wastewater from the reclamation system or any intermediate unit process to the point of reuse unless the bypass complies with standards and requirements specified in 9VAC25-740-70 and is for essential maintenance to assure efficient operation; and

6. The return of reclaimed water to the reclaimed water distribution system after the reclaimed water has been delivered to an end user.; and

7. Reduction of the discharge from a VPDES permitted treatment works due to diversion of source water flow for reclamation and reuse such that the physical, chemical, or biological properties of the receiving state waters are affected in a manner that would cause a significant adverse impact to other beneficial uses.

9VAC25-740-55. Variances.

A. The board may grant a variance to this chapter for design, construction, operation, or maintenance requirements contained in the chapter by following the appropriate procedures set forth in this section.

B. Any person or entity wishing to initiate a project for the production, distribution, or reuse of reclaimed water that is not excluded from the provisions of this chapter by 9VAC25-740-50 may apply for a variance to the design, construction, operation, or maintenance requirements of this chapter where requiring the project to comply with such requirements would be contrary to the purpose of State Water Control Law, specifically § 62.1-44.2 of the Code of Virginia. The board may grant a variance if it finds that the hardship imposed, which may be economic, outweighs the benefits of the project and that the granting of such variance would not adversely impact public health or the environment.

C. An application for a variance shall be made in writing and shall include the following:

1. A citation of the regulation from which a variance is requested;

2. The nature and duration of variance requested;

3. A statement of the hardship to the applicant and the anticipated impacts to public health and welfare or the environment if a variance were granted;

4. Suggested conditions that might be imposed on the granting of a variance that would limit any anticipated detrimental impacts on public health or the environment;

5. Other information, if any, believed to be pertinent by the applicant; and

6. Such other information as may be required to make the determination in accordance with subsection B of this section.

D. The board shall act on any application for a variance submitted pursuant to this section within 60 days of application receipt. In the board's decision to grant or deny a variance for a project to produce, distribute, or reuse reclaimed water, the board shall consider, at a minimum, the following:

1. The effect that such a variance would have on the adequate operation of the project, including operator safety (in accordance with the requirements of the Virginia Department of Labor and Industry, Occupation Safety and Health Administration);

2. The cost and other economic considerations imposed by the regulatory requirement for which the variance has been requested; and

3. The effect that such a variance would have on the protection of public health or the environment.

E. Disposition of a variance request.

1. If the board proposes to deny a variance request submitted pursuant to this section, the board shall provide the applicant an opportunity to an informal fact-finding proceeding in accordance with § 2.2-4019 of the Code of Virginia. Thereafter, the board may reject any application for a variance and shall notify the applicant in writing of this decision and the basis for the rejection. The board's notice, in this case, constitutes a case decision.

2. If the board proposes to grant a variance request submitted pursuant to this section, the applicant shall be notified in writing of this decision. Such notice shall:

a. Identify the project for which the variance has been granted;

b. Describe the variance;

c. Specify the period of time for which the variance will be effective; and

d. State that the variance shall be terminated when the project comes into compliance with the applicable design, construction, operation, or maintenance requirements of this chapter and may be terminated upon a finding by the board that the project has failed to comply with any requirements or schedules issued in conjunction with the variance.

3. The effective date of a variance described in subdivision 2 of this subsection shall be 15 days following the date of notice to the applicant.

F. All variances granted for the design, construction, operation, or maintenance of a project to produce, distribute, or reuse reclaimed water are nontransferable. Any requirements of the variance shall become part of the permit for the project subsequently issued, reissued, or modified by the board.

G. Where this chapter references the Sewage Collection and Treatment Regulations (9VAC25-790) for design, construction, operation, or maintenance requirements affecting components of a project to produce, distribute, or reuse reclaimed water, an application for a variance to such requirements shall be in accordance with variance procedures described in 9VAC25-790.

9VAC25-740-60. Relationship to other board regulations.

A. Virginia Pollution Abatement (VPA) Permit Regulation (9VAC25-32). The VPA Permit Regulation delineates the procedures and requirements to be followed in connection with the VPA permits issued by the board pursuant to the State Water Control Law. While any Any treatment works treating domestic, municipal or industrial wastewater that produces reclaimed water or a facility that distributes reclaimed water in a manner that does not result in a discharge to surface waters is required to shall obtain a VPA permit, this chapter prescribes design,. Design, operation, and maintenance standards prescribed by this chapter for water reclamation and water reuse. These requirements shall be incorporated into the VPA permit application and the VPA permit when applicable. Water reclamation and reuse requirements contained in a VPA permit shall be enforced through existing enforcement mechanisms of the VPA permit.

B. Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31). The VPDES Permit Regulation delineates the procedures and requirements to be followed in connection with VPDES permits issued by the board pursuant to the Clean Water Act and the State Water Control Law. While any Any treatment works treating domestic, municipal, or industrial wastewater that produces reclaimed water and has a discharge to [ a ] surface [ waters ] or a facility that distributes reclaimed water in a manner that results in distribution system that has a discharge to surface waters is required to shall obtain a VPDES permit, this chapter prescribes design,. Design, operation, and maintenance standards for water reclamation and reuse. These requirements shall be incorporated into the VPDES permit application and the VPDES permit when applicable. Water reclamation and reuse requirements contained in a VPDES permit shall be enforced through existing enforcement mechanisms of the VPDES permit.

C. Sewage Collection and Treatment Regulations (9VAC25-790). The Sewage Collection and Treatment Regulations establish standards for the operation, construction, or modification of a sewerage system or treatment works, including land treatment systems. This chapter prescribes design, operation and maintenance standards for water reclamation and reuse.

D. Regulation for Nutrient Enriched Waters and [ Discharges Dischargers ] within the Chesapeake Bay Watershed (9VAC25-40). Sections 62.1-44.19:12 through 62.1-44.19:19 of the Code of Virginia, which establishes the Regulation for Nutrient Enriched Waters and [ Discharges Dischargers ] within the Chesapeake Bay Watershed (9VAC25-40), allows for credit to be given for reductions in total nitrogen and total phosphorus discharged loads through recycle or reuse of wastewater when determining technology requirements associated with new or expanded discharges.

E. General VPDES Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia (9VAC25-820). The General VPDES Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia regulates point sources of nutrients and establishes a framework for nutrient credit trading and offsets. Water reclamation and reuse provides an opportunity to reduce point source nutrient loads.

F. Local and Regional Water Supply Planning [ Regulation ] (9VAC25-780). The Local and Regional Water Supply Planning [ Regulation regulation ] requires every county, city, and town to develop a water plan in accordance with established planning criteria. Where appropriate, the plan may consider nontraditional means of increasing supplies such as interconnection, desalination, recycling and reuse.

G. Water Withdrawal Reporting [ Regulation ] (9VAC25-200). The Water Withdrawal Reporting [ Regulation regulation ] requires industrial VPDES permittees to annually report to the board the source and location of water withdrawals and the type of use information specified by 9VAC25-200. Where the VPDES permitted discharge volume deviates by greater than ± 10% of the water withdrawal volume, the permittee is required to report the deviation.

Part II
Reclaimed Water Treatment, Standards, Monitoring Requirements and Reuses

9VAC25-740-70. Standards Treatment and standards for reclaimed water.

A. Standards Treatment and standards for reclaimed water are as follows: provided in Table 70-A.

1. Level 1:

a. Secondary treatment with filtration and higher-level disinfection.

b. Bacterial standards:

(1) Fecal coliform*: monthly geometric mean** less than or equal to 14 colonies/100 ml; corrective action threshold at greater than 49 colonies/100 ml; or

(2) E. coli*: monthly geometric mean** less than or equal to 11 colonies/100 ml; corrective action threshold at greater than 35 colonies/100 ml; or

(3) Enterococci*: monthly geometric mean** less than or equal to 11 colonies/100 ml; corrective action threshold at greater than 24 colonies/100 ml.

c. Total Residual Chlorine (TRC)***: corrective action threshold at less than 1.0 mg/l**** after a minimum contact time of 30 minutes at average flow or 20 minutes at peak flow

d. pH 6.0-9.0 standard units.

e. Five-day Biochemical Oxygen Demand (BOD₅): monthly average less than or equal to 10 mg/l; or Carbonaceous Biochemical Oxygen Demand CBOD₅*****: monthly average less than or equal to 8 mg/l.

f. Turbidity: Daily average of discrete measurements recorded over a 24-hour period less than or equal to 2 nephelometric turbidity units (NTU); corrective action threshold at greater than 5 NTU.

2. Level 2:

a. Secondary treatment and standard disinfection.

b. Bacterial standards:

(1) Fecal coliform*: monthly geometric mean** less than or equal to 200 colonies/100ml; corrective action threshold at greater than 800 colonies/100 ml; or

(2) E. coli*: monthly geometric mean** less than or equal to 126 colonies/100ml; corrective action threshold at greater than 235 colonies/100 ml; or

(3) Enterococci*: monthly geometric mean** less than or equal to 35 colonies/100ml; corrective action threshold at greater than 104 colonies/100 ml.

c. Total Residual Chlorine (TRC)***: corrective action threshold at less than 1.0 mg/l**** after a minimum contact time of 30 minutes at average flow or 20 minutes at peak flow.

d. pH 6.0-9.0 standard units.

e. BOD₅: monthly average less than or equal to 30 mg/l; maximum weekly average 45 mg/l; or CBOD₅*****: monthly average less than or equal to 25 mg/l; maximum weekly average 40 mg/l.

f. TSS: monthly average less than or equal to 30 mg/l; maximum weekly average 45 mg/l.

* After disinfection.

** For the purpose of calculating the geometric mean, bacterial analytical results below the detection level of the analytical method used shall be reported as values equal to the detection level.

*** Applies only if chlorine is used for disinfection.

**** TRC less than 1.0 mg/l may be authorized by the board if demonstrated to provide comparable disinfection through a chlorine reduction program in accordance with the Sewage Collection and Treatment Regulations (9VAC25-790).

***** Applies only if CBOD₅ is used in lieu of BOD₅.

Title of Regulation: 12VAC20-10. Guidelines for Public Participation in Developing Regulations (repealing 12VAC20-10-10 through 12VAC20-10-130).

Statutory Authority: § 32.1-12 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 29, 2014.

Effective Date: February 17, 2014.

Agency Contact: Carrie Eddy, Senior Policy Analyst, Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2157, FAX (804) 527-4502, or email carrie.eddy@vdh.virginia.gov.

Basis: Chapter 83 of the 2002 Acts of Assembly abolished the Virginia Health Planning Board (VHPB) and transferred authority for the certificate of public need program to the State Board of Health. Section 32.1-12 of the Code of Virginia authorizes the State Board of Health to make, adopt, promulgate, and enforce such regulations as may be necessary to carry out the provisions of Title 32.1 of the Code of Virginia and other laws of the Commonwealth administered by it, the Commissioner of Health, or the Department of Health.

Purpose: The State Board of Health has a public participation guidelines regulation (12VAC5-11) to use when adopting regulations. This regulatory chapter is obsolete and is not necessary to protect the health, safety, or welfare of citizens; therefore, the department is taking action to repeal the entire chapter.

Rationale for Using Fast-Track Process: Since the department did not receive a direct legislative mandate to repeal the VHPB regulations, the department has chosen the fast-track rulemaking process to expedite the repeal of this chapter. As the VHPB no longer exists and the State Board of Health has public participation guidelines, this action is not expected to be controversial. Public participation will not be compromised by the repeal of this chapter.

Substance: The regulatory chapter no longer serves its intended purpose; therefore, the department is taking action to repeal the entire chapter. The State Board of Health has public participation guidelines that can be amended should there be a need to adopt regulations in the future.

Issues: Governor McDonnell instructed all regulatory agencies "to conduct a comprehensive review of regulations currently in place and repeal regulations that are unnecessary or no longer in use…." In keeping with this goal, this action is advantageous to the public, the agency and the Commonwealth as it removes an unnecessary regulation from the Virginia Administrative Code. There are no disadvantages to the public, the agency, or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As the originally designated governing board for the Virginia Certificate of Public Need Program, the Virginia Health Planning Board (VHPB) last met in 1991. Chapter 83 of the 2002 Acts of Assembly assigned the functions of the VHPB to the State Board of Health. The State Board of Health therefore proposes to repeal these obsolete regulations, which pertain to the defunct Virginia Health Planning Board.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. These regulations pertain to a long-defunct board. Repealing these regulations would be beneficial in that it would help eliminate potential confusion by readers who might be lead to believe that there is an existing Virginia Health Planning Board.

Businesses and Entities Affected. The proposed repeal of these regulations will not directly affect any businesses or entities beyond eliminating potential confusion by those who might otherwise be mislead into believing that there is an existing Virginia Health Planning Board.

Localities Particularly Affected. The proposed repeal does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed repeal will not affect employment.

Effects on the Use and Value of Private Property. The proposed repeal will not significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal will not significantly affect costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal does not adversely affect small businesses.

Real Estate Development Costs. The proposed repeal does not affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency Response to Economic Impact Analysis: The Department of Health concurs with the Department of Planning and Budget's economic assessment and that the assessment is true and accurate.

Summary:

Chapter 83 of the 2002 Acts of Assembly abolished the Virginia Health Planning Board (VHPB) and transferred regulatory authority for the certificate of public need program to the State Board of Health. As the VHPB no longer exists and the State Board of Health has promulgated its own set of Public Participation Guidelines, the entire chapter is repealed.

Title of Regulation: 12VAC20-20. Regulations for Designating Health Planning Regions (repealing 12VAC20-20-10 through 12VAC20-20-110).

Statutory Authority: § 32.1-12 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 29, 2014.

Effective Date: February 17, 2014.

Agency Contact: Carrie Eddy, Senior Policy Analyst, Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2157, FAX (804) 527-4502, or email carrie.eddy@vdh.virginia.gov.

Basis: Chapter 83 of the 2002 Acts of Assembly abolished the Virginia Health Planning Board (VHPB) and transferred authority for the certificate of public need program (COPN) to the State Board of Health. Section 32.1-12 of the Code of Virginia authorizes the State Board of Health to make, adopt, promulgate, and enforce such regulations as may be necessary to carry out the provisions of Title 32.1 of the Code of Virginia and other laws of the Commonwealth administered by it, the Commissioner of Health, or the Department of Health.

Purpose: This regulatory chapter no longer serves its intended purpose and is not necessary to protect the health, safety, or welfare of citizens; therefore, the department is taking action to repeal the entire chapter. Chapter 83 of the 2002 Acts of Assembly transferred oversight of the health planning regions (HPRs) to the department. Over the succeeding years, four of the five designated HPRs ceased operation, no longer able to meet financial obligations to remain operationally viable. Chapter 175 of the 2009 Acts of Assembly and Chapter 646 of the 2010 Acts of Assembly authorize the Department of Health to conduct local public hearings in the review of requests for COPNs and convey responsibility for notifying local governments of pending reviews when no regional health planning agency had been designated. As the VHPB no longer exists and this chapter was duplicative of law under the VHPB, the department is taking this action to repeal the entire regulatory chapter 12VAC20-20.

Rationale for Using Fast-Track Process: The regulation has not been enforced since 2002, when the VHPB was abolished (Chapter 83, 2002 Acts of Assembly). Since the department did not receive a direct legislative mandate to repeal the VHPB regulations, the department has chosen the fast-track rulemaking process to expedite the repeal of this chapter. As the VHPB no longer exists and this chapter was duplicative of law under the VHPB, the department is taking this action to repeal the chapter.

Substance: The regulatory chapter is duplicative of statutory provisions and no longer serves its intended purpose; therefore, the department is taking action to repeal the entire chapter. The department has the authority to promulgate regulations should there be a need in the future.

Issues: Governor McDonnell instructed all regulatory agencies "to conduct a comprehensive review of regulations currently in place and repeal regulations that are unnecessary or no longer in use…." In keeping with this goal, this action is advantageous to the public, the agency, and the Commonwealth as it removes an unnecessary regulation from the Virginia Administrative Code. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As the originally designated governing board for the Virginia Certificate of Public Need Program, the Virginia Health Planning Board (VHPB) last met in 1991. Chapter 83 of the 2002 Acts of Assembly assigned the functions of the VHPB to the State Board of Health. The State Board of Health therefore proposes to repeal these obsolete regulations, which pertain to the defunct Virginia Health Planning Board.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. These regulations pertain to a long-defunct board. Repealing these regulations would be beneficial in that it would help eliminate potential confusion by readers who might be lead to believe that there is an existing Virginia Health Planning Board.

Businesses and Entities Affected. The proposed repeal of these regulations will not directly affect any businesses or entities beyond eliminating potential confusion by those who might otherwise be mislead into believing that there is an existing Virginia Health Planning Board.

Localities Particularly Affected. The proposed repeal does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed repeal will not affect employment.

Effects on the Use and Value of Private Property. The proposed repeal will not significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal will not significantly affect costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal does not adversely affect small businesses.

Real Estate Development Costs. The proposed repeal does not affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency Response to Economic Impact Analysis: The Department of Health concurs with the Department of Planning and Budget's economic assessment and that the assessment is true and accurate.

Summary:

Chapter 83 of the 2002 Acts of Assembly abolished the Virginia Health Planning Board (VHPB) and transferred regulatory authority for the certificate of public need program to the State Board of Health. As the VHPB no longer exists and this chapter is duplicative of applicable statutory provisions, the entire chapter is repealed.

Title of Regulation: 12VAC20-30. Regulations Governing the Regional Health Planning Boards (repealing 12VAC20-30-10 through 12VAC20-30-100).

Statutory Authority: § 32.1-12 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 29, 2014.

Effective Date: February 17, 2014.

Agency Contact: Carrie Eddy, Senior Policy Analyst, Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2157, FAX (804) 257-4502, or email carrie.eddy@vdh.virginia.gov.

Basis: Chapter 83 of the 2002 Acts of Assembly abolished the Virginia Health Planning Board (VHPB) and transferred authority for the certificate of public need program (COPN) to the State Board of Health. Section 32.1-12 of the Code of Virginia authorizes the State Board of Health to make, adopt, promulgate, and enforce such regulations as may be necessary to carry out the provisions of Title 32.1 of the Code of Virginia and other laws of the Commonwealth administered by it, the Commissioner of Health, or the Department of Health.

Purpose: This regulatory chapter no longer serves its intended purpose and is not necessary to protect the health, safety, or welfare of citizens; therefore, the department is taking action to repeal the entire chapter. Chapter 83 of the 2002 Acts of Assembly transferred oversight of the health planning regions (HPRs) to the department. Over the succeeding years, four of the five designated HPRs ceased operation, no longer able to meet financial obligations to remain operationally viable. Chapter 175 of the 2009 Acts of Assembly and Chapter 646 of the 2010 Acts of Assembly authorize the Department of Health to conduct local public hearings in the review of requests for COPNs and convey responsibility for notifying local governments of pending reviews when no regional health planning agency had been designated. As the VHPB no longer exists and this chapter was duplicative of law under the VHPB, the department is taking this action to repeal the entire regulatory chapter 12VAC20-30.

Rationale for Using Fast-Track Process: The regulation has not been enforced since 2002, when the VHPB was abolished (Chapter 83, 2002 Acts of Assembly). Since the department did not receive a direct legislative mandate to repeal the VHPB regulations, the department has chosen the fast-track rulemaking process to expedite the repeal of this chapter. As the VHPB no longer exists and this chapter was duplicative of law under the VHPB, the department is taking this action to repeal the chapter.

Substance: The regulatory chapter is duplicative of statutory provisions and no longer serves its intended purpose; therefore, the department is taking action to repeal the entire chapter. The department has the authority to promulgate regulations should there be a need in the future.

Issues: Governor McDonnell instructed all regulatory agencies "to conduct a comprehensive review of regulations currently in place and repeal regulations that are unnecessary or no longer in use…." In keeping with this goal, this action is advantageous to the public, the agency, and the Commonwealth as it removes an unnecessary regulation from the Virginia Administrative Code. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As the originally designated governing board for the Virginia Certificate of Public Need Program, the Virginia Health Planning Board (VHPB) last met in 1991. Chapter 83 of the 2002 Acts of Assembly assigned the functions of the VHPB to the State Board of Health. The State Board of Health therefore proposes to repeal these obsolete regulations, which pertain to the defunct Virginia Health Planning Board.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. These regulations pertain to a long-defunct board. Repealing these regulations would be beneficial in that it would help eliminate potential confusion by readers who might be lead to believe that there is an existing Virginia Health Planning Board.

Businesses and Entities Affected. The proposed repeal of these regulations will not directly affect any businesses or entities beyond eliminating potential confusion by those who might otherwise be mislead into believing that there is an existing Virginia Health Planning Board.

Localities Particularly Affected. The proposed repeal does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed repeal will not affect employment.

Effects on the Use and Value of Private Property. The proposed repeal will not significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal will not significantly affect costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal does not adversely affect small businesses.

Real Estate Development Costs. The proposed repeal does not affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency Response to Economic Impact Analysis: The Department of Health concurs with the Department of Planning and Budget's economic assessment and that the assessment is true and accurate.

Summary:

Chapter 83 of the 2002 Acts of Assembly abolished the Virginia Health Planning Board (VHPB) and transferred regulatory authority for the certificate of public need program to the State Board of Health. As the VHPB no longer exists and this chapter is duplicative of applicable statutory provisions, the entire chapter is repealed.

Title of Regulation: 12VAC20-40. Regulations for Designating Regional Health Planning Agencies (repealing 12VAC20-40-10 through 12VAC20-40-150).

Statutory Authority: § 32.1-12 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 29, 2014.

Effective Date: February 17, 2014.

Agency Contact: Carrie Eddy, Senior Policy Analyst, Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2157, FAX (804) 257-4502, or email carrie.eddy@vdh.virginia.gov.

Basis: Chapter 83 of the 2002 Acts of Assembly abolished the Virginia Health Planning Board (VHPB) and transferred authority for the certificate of public need program (COPN) to the State Board of Health. Section 32.1-12 of the Code of Virginia authorizes the State Board of Health to make, adopt, promulgate, and enforce such regulations as may be necessary to carry out the provisions of Title 32.1 of the Code of Virginia and other laws of the Commonwealth administered by it, the Commissioner of Health, or the Department of Health.

Purpose: This regulatory chapter no longer serves its intended purpose and is not necessary to protect the health, safety, or welfare of citizens; therefore, the department is taking action to repeal the entire chapter. Chapter 83 of the 2002 Acts of Assembly transferred oversight of the health planning regions (HPRs) to the department. Over the succeeding years, four of the five designated HPRs ceased operation, no longer able to meet financial obligations to remain operationally viable. Chapter 175 of the 2009 Acts of Assembly and Chapter 646 of the 2010 Acts of Assembly authorize the Department of Health to conduct local public hearings in the review of requests for COPNs and convey responsibility for notifying local governments of pending reviews when no regional health planning agency had been designated. As the VHPB no longer exists and this chapter was duplicative of law under the VHPB, the department is taking this action to repeal the entire regulatory chapter 12VAC20-40.

Rationale for Using Fast-Track Process: The regulation has not been enforced since 2002, when the VHPB was abolished (Chapter 83, 2002 Acts of Assembly). Since the department did not receive a direct legislative mandate to repeal the VHPB regulations, the department has chosen the fast-track rulemaking process to expedite the repeal of this chapter. As the VHPB no longer exists and this chapter was duplicative of law under the VHPB, the department is taking this action to repeal the chapter.

Substance: The regulatory chapter is duplicative of statutory provisions and no longer serves its intended purpose; therefore, the department is taking action to repeal the entire chapter. The department has the authority to promulgate regulations should there be a need in the future.

Issues: Governor McDonnell instructed all regulatory agencies "to conduct a comprehensive review of regulations currently in place and repeal regulations that are unnecessary or no longer in use…." In keeping with this goal, this action is advantageous to the public, the agency, and the Commonwealth as it removes an unnecessary regulation from the Virginia Administrative Code. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As the originally designated governing board for the Virginia Certificate of Public Need Program, the Virginia Health Planning Board (VHPB) last met in 1991. Chapter 83 of the 2002 Acts of Assembly assigned the functions of the VHPB to the State Board of Health. The State Board of Health therefore proposes to repeal these obsolete regulations, which pertain to the defunct Virginia Health Planning Board.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. These regulations pertain to a long-defunct board. Repealing these regulations would be beneficial in that it would help eliminate potential confusion by readers who might be lead to believe that there is an existing Virginia Health Planning Board.

Businesses and Entities Affected. The proposed repeal of these regulations will not directly affect any businesses or entities beyond eliminating potential confusion by those who might otherwise be mislead into believing that there is an existing Virginia Health Planning Board.

Localities Particularly Affected. The proposed repeal does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed repeal will not affect employment.

Effects on the Use and Value of Private Property. The proposed repeal will not significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal will not significantly affect costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal does not adversely affect small businesses.

Real Estate Development Costs. The proposed repeal does not affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency Response to Economic Impact Analysis: The Department of Health concurs with the Department of Planning and Budget's economic assessment and that the assessment is true and accurate.

Summary:

Chapter 83 of the 2002 Acts of Assembly abolished the Virginia Health Planning Board (VHPB) and transferred regulatory authority for the certificate of public need program to the State Board of Health. As the VHPB no longer exists and this chapter is duplicative of applicable statutory provisions, the entire chapter is repealed.

Title of Regulation: 12VAC20-50. Administration of State Funding for Regional Health Planning (repealing 12VAC20-50-10 through 12VAC20-50-140).

Statutory Authority: § 32.1-12 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 29, 2014.

Effective Date: February 17, 2014.

Agency Contact: Carrie Eddy, Senior Policy Analyst, Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2157, FAX (804) 257-4502, or email carrie.eddy@vdh.virginia.gov.

Basis: Chapter 83 of the 2002 Acts of Assembly abolished the Virginia Health Planning Board (VHPB) and transferred authority for the certificate of public need program (COPN) to the State Board of Health. Section 32.1-12 of the Code of Virginia authorizes the State Board of Health to make, adopt, promulgate, and enforce such regulations as may be necessary to carry out the provisions of Title 32.1 of the Code of Virginia and other laws of the Commonwealth administered by it, the Commissioner of Health, or the Department of Health.

Purpose: This regulatory chapter no longer serves its intended purpose and is not necessary to protect the health, safety, or welfare of citizens; therefore, the department is taking action to repeal the entire chapter. Chapter 83 of the 2002 Acts of Assembly transferred oversight of the health planning regions (HPRs) to the department. Over the succeeding years, four of the five designated HPRs ceased operation, no longer able to meet financial obligations to remain operationally viable. Chapter 175 of the 2009 Acts of Assembly and Chapter 646 of the 2010 Acts of Assembly authorize the Department of Health to conduct local public hearings in the review of requests for COPNs and convey responsibility for notifying local governments of pending reviews when no regional health planning agency had been designated. As the VHPB no longer exists and this chapter was duplicative of law under the VHPB, the department is taking this action to repeal the entire regulatory chapter 12VAC20-50.

Rationale for Using Fast-Track Process: The regulation has not been enforced since 2002, when the VHPB was abolished (Chapter 83, 2002 Acts of Assembly). Since the department did not receive a direct legislative mandate to repeal the VHPB regulations, the department has chosen the fast-track rulemaking process to expedite the repeal of this chapter. As the VHPB no longer exists and this chapter was duplicative of law under the VHPB, the department is taking this action to repeal the chapter.

Substance: The regulatory chapter is duplicative of statutory provisions and no longer serves its intended purpose; therefore, the department is taking action to repeal the entire chapter. The department has the authority to promulgate regulations should there be a need in the future.

Issues: Governor McDonnell instructed all regulatory agencies "to conduct a comprehensive review of regulations currently in place and repeal regulations that are unnecessary or no longer in use…." In keeping with this goal, this action is advantageous to the public, the agency, and the Commonwealth as it removes an unnecessary regulation from the Virginia Administrative Code. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As the originally designated governing board for the Virginia Certificate of Public Need Program, the Virginia Health Planning Board (VHPB) last met in 1991. Chapter 83 of the 2002 Acts of Assembly assigned the functions of the VHPB to the State Board of Health. The State Board of Health therefore proposes to repeal these obsolete regulations, which pertain to the defunct Virginia Health Planning Board.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. These regulations pertain to a long-defunct board. Repealing these regulations would be beneficial in that it would help eliminate potential confusion by readers who might be lead to believe that there is an existing Virginia Health Planning Board.

Businesses and Entities Affected. The proposed repeal of these regulations will not directly affect any businesses or entities beyond eliminating potential confusion by those who might otherwise be mislead into believing that there is an existing Virginia Health Planning Board.

Localities Particularly Affected. The proposed repeal does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed repeal will not affect employment.

Effects on the Use and Value of Private Property. The proposed repeal will not significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repeal will not significantly affect costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repeal does not adversely affect small businesses.

Real Estate Development Costs. The proposed repeal does not affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency Response to Economic Impact Analysis: The Department of Health concurs with the Department of Planning and Budget's economic assessment and that the assessment is true and accurate.

Summary:

Chapter 83 of the 2002 Acts of Assembly abolished the Virginia Health Planning Board (VHPB) and transferred regulatory authority for the certificate of public need program to the State Board of Health. As the VHPB no longer exists and this chapter is duplicative of applicable statutory provisions, the entire chapter is repealed.

Title of Regulation: 18VAC10-20. Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects Regulations (amending 18VAC10-20-10, 18VAC10-20-17 through 18VAC10-20-400, 18VAC10-20-420 through 18VAC10-20-795; adding 18VAC10-20-87, 18VAC10-20-425, 18VAC10-20-495, 18VAC10-20-515, 18VAC10-20-575, 18VAC10-20-627; repealing 18VAC10-20-540, 18VAC10-20-600).

Statutory Authority: §§ 54.1-201 and 54.1-404 of the Code of Virginia.

Public Hearing Information:

January 9, 2014 - 2 p.m. - Department of Professional and Occupational Regulation, 9960 Mayland Drive, Board Room 1, Richmond, VA 23233

Public Comment Deadline: February 28, 2014.

Agency Contact: Kathleen R. Nosbisch, Executive Director, Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (866) 465-6206, or email apelscidla@dpor.virginia.gov.

Basis: Section 54.1-201 of the Code of Virginia authorizes the Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects to promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) necessary to assure continued competency, to prevent deceptive or misleading practices by practitioners, and to effectively administer the regulatory system administered by the board.

Section 54.1-404 A of the Code of Virginia authorizes the board to promulgate regulations "governing its own organization, the professional qualifications of applicants, the requirements necessary for passing examinations in whole or in part, the proper conduct of its examinations, the implementation of exemptions from license requirements, and the proper discharge of its duties."

Executive Order 14 (2010) requires that each existing regulation be reviewed at least once every four years by the promulgating agency unless specifically exempted from periodic review by the Governor.

Purpose: Architects, professional engineers, land surveyors, certified interior designers, and landscape architects have complex requirements for licensure and certification regarding entry and professional conduct. The complexity of these requirements results from the nature of these professions. Questions often arise from both regulants and applicants in an array of situations. The board is proposing these amendments to ensure that these requirements are the most up-to-date requirements for what is necessary for each profession. Further, the board's intention is to simplify the existing regulatory language to make entry and performance requirements as clear as possible for both regulants and other members of the public.

The purpose of the proposed regulations is to focus solely on a general but comprehensive review of the existing regulations. The review eliminates duplicative language, simplifies the explanations of requirements, and ultimately produces regulations that effectively protect the health, safety, and welfare of the public and that will be more easily read and understood by the public.

Substance: The majority of sections are amended to read more clearly. In addition to the clarifying changes made throughout the regulations, the following changes are proposed:

18VAC10-20-10 - remove unnecessary language and add language to a definition to make the term applicable to both applicants and regulants.

18VAC10-20-17 - amend for consistency with the definitions section and remove the fixed fee for a wall certificate.

18VAC10-20-20 - relocate each specific profession's exam requirements to its specific section of the regulations and divide larger text into smaller, more concise subsections of text for ease of understanding the general entry requirements.

18VAC10-20-25 - require that the reference be someone known to the applicant more recently than contacts from over five years ago.

18VAC10-20-55 - clarify specifically which applicants are required to submit a TOEFL exam score with an application.

18VAC10-20-87 - add to affirmatively identify the expiration date of all initial licenses, certificates, and registrations. Licenses, certificates, and registrations that are renewed or reinstated currently have an established expiration date in 18VAC10-20-670 and 18VAC10-20-680, respectively.

18VAC10-20-90, 18VAC10-20-170, 18VAC10-20-280 - clarify the type of application for the profession.

18VAC10-20-120 - identify the most current "Handbook for Interns and Architects," which establishes experience requirements for architects.

18VAC10-20-130, 18VAC10-20-220 - clarify the purpose of providing a reference.

18VAC10-20-160 - clarify the definition of "Related science curriculum."

18VAC10-20-190, 18VAC10-20-210 - establish the standard by which coursework will be determined to be equivalent to a degree with ABET accreditation.

18VAC10-20-230 - clarify which degrees may be considered to be approved by the board.

18VAC10-20-240 - implement the use of a table to more easily distinguish qualifying from nonqualifying experience based on a category.

18VAC10-20-260, 18VAC10-20-350 - relocate language specific to the exam deadline from 18VAC10-20-20 and add language requiring that applicants who do not pass the exam within three years from their approval must demonstrate proof of educational activities to be eligible for the exam once again.

18VAC10-20-295 - clarify the definitions of the two types of surveying experience and make them consistent as applicable to the type of surveying.

18VAC10-20-300 - reduce the experience requirement for those applicants with a board-approved undergraduate degree in a field unrelated to surveying.

18VAC10-20-310 - remove obsolete language pertaining to entry requirements for surveyor photogrammetrists under an expired "grandfather" provision.

18VAC10-20-340 - clarify which individuals must verify an applicant's experience.

18VAC10-20-360 - clarify licensure requirements for surveyor photogrammetrists applying via comity. The new language addresses the requirements for those applicants licensed in other states before, during, and after the board's period for grandfathering.

18VAC10-20-370 - remove duplicative language pertaining to the sealing and signing requirement.

18VAC10-20-395 - update citation of the board's regulations.

18VAC10-20-400, 18VAC10-20-470 - clarify the type of application for the profession.

18VAC10-20-420 - provide examples to help individuals understand the application of the board's calculations regarding education and experience credits.

18VAC10-20-425 - add section to further determine an applicant's competence and integrity to practice landscape architecture, previously a certification, now a licensed profession. The requirement for references already exists in the current regulations for architects and professional engineers.

18VAC10-20-460 - divide the large paragraph definition into concise, individual components. The definition of "diversified experience" is amended.

18VAC10-20-490 - relocate a requirement previously contained in a definition from 18VAC10-20-460.

18VAC10-20-495 - add relocated exam language from 18VAC10-20-20 to this section.

18VAC10-20-510, 18VAC10-20-570 - add a definition to eliminate confusion between a board-issued registration and a certificate of registration issued by the Virginia State Corporation Commission.

18VAC10-20-515, 18VAC10-20-575, 18VAC10-20-627 - add to clarify which businesses must apply to the board for a registration.

18VAC10-20-520, 18VAC10-20-580, 18VAC10-20-630 - clarify the type of application for the business and relocate the reinstatement fee information to 18VAC10-20-680 with all other reinstatement information.

18VAC10-20-530, 18VAC10-20-590 - remove language taken directly from the Code of Virginia and replace with citation references.

18VAC10-20-540 - repeal because requirements are relocated to new 18VAC10-20-515 and current 18VAC10-20-770.

18VAC10-20-600 - repeal because requirements are contained in new 18VAC10-20-575 and current 18VAC10-20-770.

18VAC10-20-670, 18VAC10-20-680 - add language (i) establishing a regulant's rights under the Administrative Process Act and (ii) authorizing the board to withhold renewal, reinstatement, examination, or other services from regulants who fail to pay penalties or other fees owed to the board.

18VAC10-20-687 - remove an improper citation reference to 18VAC10-20-683.

18VAC10-20-740 - relocate language containing requirements from the definition of "direct control and personal supervision" from 18VAC10-20-10 to this section.

18VAC10-20-750 - eliminate duplicative language.

18VAC10-20-760 - remove obsolete language and add language to clarify which documents must be sealed for a project involving multiple professionals performing work on different aspects of the project.

18VAC10-20-770 - relocate language from 18VAC10-20-540 and 18VAC10-20-600 to this section.

18VAC10-20-790 - add language to clarify the board's authority to sanction regulants for failing to maintain good moral character as defined in 18VAC10-20-10 and remove duplicative language.

Issues: The primary advantage to the public is that buildings and site plans will continue to be developed by minimally competent professionals. Further, regulants and applicants within the various industries of these professions will be able read the board's regulations with greater clarity and understanding. The added clarity of the language in the proposed regulations will facilitate a quicker and more efficient process for applicants and regulants by enhancing their understanding of their individual requirements. Further, consumers in the public, as well as regulators from related agencies, will have a better understanding of the requirements of these professionals, which will also allow them to conduct their business with greater efficiency.

The primary advantage to the Commonwealth will be the continued successful regulation of minimally competent individuals working as architects, professional engineers, land surveyors, certified interior designers, and landscape architects throughout Virginia. No disadvantage has been identified.

The board, housed within the Department of Professional and Occupational Regulation, has frequent interactions with the Department of Housing and Community Development, the Department of Transportation, the State Corporation Commission, the Virginia Society of Professional Engineers, the American Council of Engineering Companies, the American Institute of Architects, the Virginia Association of Surveyors, the American Society of Landscape Architects, as well as numerous other local government agencies, national and local organizations, colleges and universities. Interaction with these agencies and organizations often requires information contained in the regulations. The clarification of the proposed language will facilitate greater understanding of the board's requirements for all involved.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects (the Board) proposes to 1) reduce from three to two years the experience requirement for surveyor-in-training designation applicants who have a Board-approved undergraduate degree in a field unrelated to surveying, 2) withhold renewal, reinstatement, examination, or other services for regulants who fail to pay penalties or other fees owed to the Board resulting from a consent or final order, 3) remove the amount of the duplicate wall certificate fee from the regulations so that it could be updated without having to go through the regulatory review process, 4) require applicants for professional engineer license, land surveyor license, engineer-in-training designation, and surveyor-in-training designation, who do not pass the exam within three years from their approval, to demonstrate proof of educational activities to be eligible for the exam once again, 5) require that the references for architects, engineers, and landscape architects license applicants be someone who has known the applicant within the last five years, 6) add new language addressing the requirements for those applicants licensed in other states before, during, and after the Board's period for grandfathering, and 7) eliminate duplicative language, clarify existing requirements, update citations, and improve clarity by reorganizing several sections of regulatory text.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. This regulatory action results from a general review of the regulation and is designed to be a comprehensive overhaul that eliminates duplicative language, clarifies existing requirements, updates citations, and improves clarity by reorganizing several sections of regulatory text. While many of the changes are technical in nature and are not expected to produce significant economic effects, several of the proposed changes are substantive.

One of the proposed changes will reduce from three to two years the experience requirement for surveyor-in-training designation applicants who have a Board-approved undergraduate degree in a field unrelated to surveying. Currently, someone with a four year related degree only needs one year experience for a total of five years combined education and experience and someone with a related associate degree needs four years of experience for a total of six years. Under the current rules, someone with an unrelated undergraduate degree must have three years of experience for a total of seven years which is one more year than the requirements for someone with an associate degree. According to the Department of Professional and Occupational Regulation (DPOR), looking at the combined total of education and experience, the Board believes that three years of experience is excessive for someone with an unrelated undergraduate degree.

The main benefit of the change will accrue to the individuals who are applying for surveyor-in-training designation with a Board-approved undergraduate degree in a field unrelated to surveying. However, DPOR does not have a mechanism for tracking how many people may be affected by this particular change. Under the proposed regulations, affected individuals will be eligible for surveyor-in-training designation one year earlier than it would have otherwise been. Thus, if the designation allows someone to earn higher income compared to someone without the designation, affected individuals are expected to enjoy higher income for an additional year than they otherwise would.

In addition, the Board proposes to withhold renewal, reinstatement, examination, or other services for regulants who fail to pay penalties or other fees owed to the Board resulting from a consent or final order. Since the beginning of 2009, the Board has imposed a total of $35,200 in monetary penalties and administrative costs in 34 cases. The main benefit of this change is to ensure that regulants maintain compliance with the consent and final orders before being authorized any further regulatory status by the Board through renewal, reinstatement, examination, or other services. The main cost is to put the regulant in a situation that either he does not operate or operates without a current license, certificate, or registration.

Another proposed change will remove the amount of the duplicate wall certificate fee from the regulations so that it could be updated without having to go through the regulatory review process when DPOR amends the amount of this fee. Unlike the other fees the Board assesses, the duplicate wall certificate fee is a department-wide service fee and established by DPOR for all of the Boards under its jurisdiction. This fee was increased to $35 from $25 in 2009 by DPOR, but the Board could not implement this change at that time because the regulations contained the amount as $25. The Board proposes to replace the amount $25 with the department fee so that it could be updated automatically whenever DPOR amends the amount of this fee.

Since the current department-wide fee is $35, regulants will pay an additional $10 for duplicate wall certificates. DPOR estimates that duplicative wall certificates are requested less than 25 times in a year. Thus, this proposed change is expected to increase the Board's revenues up to $250 annually. This change will help the Board maintain its revenues timely and automatically at a level commensurate with its administrative costs associated with issuance of duplicate wall certificates.

In addition, the proposed changes will require applicants for professional engineer license, land surveyor license, engineer-in-training designation, and surveyor-in-training designation, who do not pass the exam within three years from their approval, to demonstrate proof of educational activities to be eligible for the exam once again. According to DPOR, the contents of these exams are protected. The intent of this requirement is to protect the integrity of the national exam by preventing individuals from continuously sitting for the exam merely in an effort to copy exam questions and answers for unlawful distribution to future exam candidates.

According to DPOR, any educational activity related to the profession would be acceptable. These educational activities are available for free from some sources or may cost up to several hundred dollars from some providers.

Moreover, the proposed changes will require that the references for architects, engineers, and landscape architects license applicants be someone who has known the applicant within the last five years. According to DPOR, a friend, colleague, professor, or other person, serving as a reference from more than five years ago, is less likely to be knowledgeable of an applicant's present day character. A more recent reference is expected to give a more accurate depiction of an applicant's current character. On the other hand, this requirement will reduce the pool of potential references to the people who have known the applicant within the last five years and may add to the administrative costs of the overall application process.

Pursuant to Chapters 359 and 440 of the 2005 Acts of Assembly, the Board also proposes to add new language addressing the requirements for those applicants licensed in other states before, during, and after the Board's period for grandfathering. The Board's rule is that applicants for licensure by comity meet the criteria that were in effect in Virginia at the time the other state issued a license to the applicant. Prior to December 1, 2009, applicants for surveyor photogrammetrist were required to have 8 years of combined education and experience. After December 1, 2009, combined years of education and experience have been reduced to 5-7 years. Since this change has already been in effect, no significant economic effect is expected upon promulgation of these proposed changes.

Finally, remaining changes eliminate duplicative language, clarify existing requirements, update citations, and improve clarity by reorganizing several sections of regulatory text. None of these changes are expected to create significant economic impacts other than improving the clarity of the regulations.

Businesses and Entities Affected. There are approximately 3,300 businesses and 36,000 individuals are regulated under these regulations.

Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth.

Projected Impact on Employment. Reducing the experience requirement for some surveyor-in-training designation applicants is expected to increase the supply of professionals with the designation and decrease the supply of professionals without the designation. However, this change is unlikely to have a significant impact on current employment level.

Effects on the Use and Value of Private Property. The proposed changes are not expected to have a significant effect on the use and value of private property.

Small Businesses: Costs and Other Effects. According to DPOR, most, if not all of the affected businesses may be considered as small businesses. Thus, the cost and other effects of the proposed changes on small businesses are the same as discussed above. Reducing the experience requirement for some surveyor-in-training designation applicants are expected to benefit regulants while other changes (i.e., withholding certain services to regulants who owe fees to the board, increasing the amount of the fee for wall certificates, requiring proof of educational activities under certain circumstances, and requiring more recent contact with references) are expected to add to the compliance costs.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There is no known alternative method that minimizes the adverse impact on small businesses while accomplishing the same goals.

Real Estate Development Costs. The proposed changes are not expected to have a significant effect on the real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: Generally concur with the following exceptions:

The board does not agree with DPB's assertion that the requirement of current references within the last five years will add to the administrative costs of the overall application process. Applicants are only required to list three references, and the board contends that an applicant should have an easier time of locating recent references than tracking down older references.

The board does not agree with DPB's assertion that withholding services from regulants who owe fees, increasing the fee for wall certificates, and requiring more recent references will add to the compliance costs. The withholding of services is based on board costs and monetary penalties already assessed to a regulant through a final or consent order. These orders are the result of a regulant's violation of regulation or statute, which could potentially endanger the health, safety, or welfare of the public. The board's mission is to protect the health, safety, and welfare of the public and, to ensure that, the board requires compliance with these orders before granting continued licensure.

The increase in fees for wall certificates is for duplicates only and was an agency wide initiative, not a board-level decision. The first wall certificate is already part of the licensing fee and is provided at no additional charge.

Summary:

The proposed amendments (i) reduce from three to two years the experience requirement for surveyor-in-training designation applicants who have a board-approved undergraduate degree in a field unrelated to surveying; (ii) withhold renewal, reinstatement, examination, or other services for regulants who fail to pay penalties or other fees owed to the board resulting from a consent or final order; (iii) remove the amount of the duplicate wall certificate fee from the regulations to allow the fee to be updated without having to go through the regulatory review process; (iv) require applicants for professional engineer license, land surveyor license, engineer-in-training designation, and surveyor-in-training designation, who do not pass the exam within three years from their approval, to demonstrate proof of educational activities to be eligible for the exam once again; (v) require that the references for architects, engineers, and landscape architects license applicants be someone who has known the applicant within the last five years; (vi) clarify licensure requirements for surveyor photogrammetrists applying via comity by addressing the requirements for those applicants licensed in other states before, during, and after the board's period for grandfathering; and (vii) eliminate duplicative language, clarify existing requirements, update citations, and improve clarity by reorganizing several sections of regulatory text.

Part I
General

18VAC10-20-10. Definitions.

Section 54.1-400 of the Code of Virginia provides definitions of the following terms and phrases as used in this chapter:

Architect

Board

Certified interior designer

Interior design by a certified interior designer (when used in this chapter, interior design shall only be applicable to interior design performed by a certified interior designer).

Land surveyor. When used in this chapter, land surveyor shall include surveyor photogrammetrist unless stated otherwise or the context requires a different meaning.

Landscape architect

Practice of architecture

Practice of engineering

Practice of land surveying

Practice of landscape architecture

Professional engineer

The following words, terms, and phrases when used in this chapter shall have the meanings ascribed to them except where the context clearly indicates or requires different meanings:

"Application" means a completed application with the appropriate fee and any other required documentation, including, but not limited to, references, employment experience verification, degree verification, and verification of examination and licensure or certification.

"Certified" means an individual holding a valid certification issued by the board that has not been suspended, revoked, or surrendered, and is currently registered with the board to practice in the Commonwealth in accordance with § 54.1-405 or 54.1-414 of the Code of Virginia and in good standing.

"Comity" means the recognition of licenses or certificates issued by other states, the District of Columbia, or any territory or possession or other jurisdictions of the United States as permitted by § 54.1-103 C of the Code of Virginia.

"Department" means the Department of Professional and Occupational Regulation.

"Direct control and personal supervision" shall be that degree of supervision by a person overseeing the work of another whereby the supervisor has both control over and detailed professional knowledge of the work prepared under his supervision and words and phrases of similar import mean that the professional shall have control over the decisions on technical matters of policy and design, and exercises his professional judgment in all professional matters that are embodied in the work and the drawings, specifications, or other documents involved in the work; and the professional has exercised critical examination and evaluation of an employee's, consultant's, subcontractor's, or project team members' work product, during and after preparation, for purposes of compliance with applicable laws, codes, ordinances, regulations and usual and customary standards of care pertaining to professional practice. Further, it is that degree of control a professional is required to maintain over decisions made personally or by others over which the professional exercises direct control and personal supervision. "Direct control and personal supervision" also includes the following:

1. The degree of control necessary for a professional to be in direct control and personal supervision shall be such that the professional:

a. Personally makes professional decisions or reviews and approves proposed decisions prior to their implementation, including the consideration of alternatives, whenever professional decisions that could affect the health, safety, and welfare of the public are made; and

b. Determines the validity and applicability of recommendations prior to their incorporation into the work, including the qualifications of those making the recommendations.

2. Professional decisions that must be made by and are the responsibility of the professional in direct control and personal supervision are those decisions concerning permanent or temporary work that could affect the health, safety, and welfare of the public, and may include, but are not limited to, the following:

a. The selection of alternatives to be investigated and the comparison of alternatives for designed work; and

b. The selection or development of design standards and materials to be used.

3. A professional shall be able to clearly define the scope and degree of direct control and personal supervision and how it was exercised and to demonstrate that the professional was answerable within said scope and degree of direct control and personal supervision necessary for the work for which the professional has signed and sealed; and

4. No sole proprietorship, partnership, corporation, limited liability company, joint venture, professional corporation, professional limited liability corporation, or other entity shall practice, or offer to practice, any profession regulated under this chapter unless there is a resident professional for that service providing direct control and personal supervision of such service in each separate office in which such service is performed or offered to be performed.

"Direct control and personal supervision" means supervision by a professional who oversees and is responsible for the work of another individual.

"Good moral character" may be established if the applicant or regulant:

1. Has not been convicted of a felony or misdemeanor that has a reasonable relationship to the functions of the employment or category for which the license or certification is sought would render the applicant unfit or unsuited to engage in the occupation or profession applied for in accordance with § 54.1-204 of the Code of Virginia;

2. Has not, within 10 years of application for licensure, certification, or registration, committed any act involving dishonesty, fraud, misrepresentation, breach of fiduciary duty, negligence, or incompetence reasonably related to the applicant's proposed area of practice;:

a. The proposed area of practice within 10 years prior to application for licensure, certification, or registration, or

b. The area of practice related to licensure, certification, or registration by the board while under the authority of the board.

3. Has not engaged in fraud or misrepresentation in connection with the application for licensure, certification, or registration, or related examination;

4. Has not had a license, certification or registration revoked or suspended for cause by this state Commonwealth or by any other jurisdiction, or surrendered a license, certificate, or registration in lieu of disciplinary action; or

5. Has not practiced without the required license, registration, or certification in this state Commonwealth or in another jurisdiction within the five years immediately preceding the filing of the application for licensure, certification, or registration by this Commonwealth; or.

6. Has not, within 10 years of application for licensure, certification, or registration, committed an act that would constitute unprofessional conduct, as set forth in Part XII of this chapter.

"Good standing" means a current or active license, certificate, or registration issued by a regulatory body that is not revoked, suspended, or surrendered.

"Licensed" means an individual who holds a valid license issued by the board that has not been suspended, or revoked, or surrendered and who is currently registered with the board to practice in the Commonwealth in accordance with § 54.1-405 of the Code of Virginia.

"Place of business" means any location which offers to practice or practices that, through licensed or certified professionals, offers or provides the services of architecture, engineering, land surveying, landscape architecture, or certified interior design, or any combination thereof. A temporary field office established and utilized for the duration of a specific project shall not qualify as a place of business under this chapter.

"Profession" means the practice of architecture, engineering, land surveying, landscape architecture, or certified interior design.

"Professional" means an architect, professional engineer, land surveyor, landscape architect, or interior designer who is licensed or certified, as appropriate, holds a valid license or certificate issued by the board pursuant to the provisions of this chapter and is in good standing with the board to practice his profession in this Commonwealth.

"Registrant" means a business currently registered with the board holding a valid registration issued by the board, and in good standing, to offer or provide one or more of the professions regulated by the board.

"Regulant" means a licensee, certificate holder or registrant an architect, professional engineer, land surveyor, or landscape architect holding a valid license issued by the board; an interior designer holding a valid certification issued by the board; or a registrant.

"Resident" means physically present in said at the place of business a majority of the its operating hours of the place of business.

"Responsible person" means the individual professional named by the entity registrant to be responsible and have control of the registrant's regulated services offered, or rendered, or both, by the entity. A professional can only be the responsible person for the professions indicated on his license or certification.

"Surveyor photogrammetrist" means a person who by reason of specialized knowledge in the area of photogrammetry has been granted a license by the board to survey land in accordance with Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia for the determination of topography, contours and/or, or location of planimetric features using photogrammetric methods or similar remote sensing technology.

18VAC10-20-17. Replacement of wall certificate.

Any licensee or certificate holder professional may obtain a replacement for a lost, destroyed, or damaged wall certificate upon submission of a $25 department fee accompanied by a written request indicating that the certificate was lost, destroyed, or damaged. Multiple copies may be available at the discretion of the board or its agent.

Part II
General Entry Requirements

18VAC10-20-20. General application requirements.

A. All applicants Applicants must be of good moral character.

B. 1. Except as otherwise provided in subdivisions 2 and 3 of this subsection, a fully documented application shall be submitted by applicants seeking consideration for licensure, certification or registration to be received in the board's office no later than 130 days prior to the scheduled examination. The date the fully documented application is received in the board's office shall determine if an application has been received by the deadline set by the board. All applications shall be completed in accordance with the instructions contained herein and on the application. Applications will not be considered complete until all required documents are received by the board. All applications, accompanying materials and references become the property of the board upon receipt by the board.

2. Applicants for the Fundamentals of Engineering examination who are applying pursuant to subdivision 1 of 18VAC10-20-190 may submit applications to be received in the board's office no later than 60 days prior to the scheduled examination.

3. Applicants for the Fundamentals of Land Surveying examination who are applying pursuant to subdivision 1 of 18VAC10-20-300 may submit applications to be received in the board's office no later than 60 days prior to the scheduled examination.

4. Applicants for the National Council of Interior Design Qualification (NCIDQ) examination shall apply directly to NCIDQ for the examination.

B. Applications shall be completed in accordance with instructions contained in this section and on the application.

C. Applications for licensure requiring an exam shall be received in the board's office by the application deadline established in Part III (18VAC10-20-90 et seq.) of this chapter for each profession's exam. The date the fully documented application is received in the board's office shall determine if the application has been received on time. Applications, accompanying materials, and references become the property of the board upon receipt by the board.

D. Applicants shall meet applicable all entry requirements at the time application is made.

D. Applicants who have been found ineligible for any reason may request further consideration by submitting in writing evidence of additional qualifications, training or experience. No additional fee will be required provided the requirements for licensure, certification or registration are met within a period of three years from the date the original application is received by the board. After such period, a new application shall be required.

E. Applicants shall provide the board with all required documentation and fees to complete the application for licensure or certification no later than three years from the date of the board's receipt of the initial application fee. Applications that remain incomplete after that time will no longer be processed by the board and the applicant shall submit a new application.

E. F. The board may make further inquiries and investigations with respect to the qualifications of an applicant and all an applicant's qualifications and documentation and information to confirm or amplify information supplied. The board may also require a personal interview with an applicant.

F. G. Failure of an applicant to comply with a written request from the board for additional evidence or information within 60 days of receiving such notice, except in such instances where the board has determined ineligibility for a clearly specified period of time, may be sufficient and just cause for disapproving the application.

G. Applicants shall be held to the standards of practice and conduct as set forth in this chapter.

H. Applicants who do not meet the requirements of 18VAC10-20-20 or 18VAC10-20-40 may be approved following consideration by the board in accordance with the provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia)

18VAC10-20-25. References.

In addition to the requirements found in 18VAC10-20-130 and, 18VAC10-20-220, and 18VAC10-20-425, as applicable, references that are submitted as part of an application must comply with the following:

1. Written references shall be no more than one year old at the time the application is received by the board in the board's office;

2. Individuals who provide references may not also verify experience; and

3. 2. The individual providing the reference must have known the applicant for at least one year.;

3. The individual providing the reference must have known the applicant within the last five years from the date of application to the board; and

4. Individuals who provide references shall not also verify experience.

18VAC10-20-35. Experience.

All experience or training requirements contained in this chapter are based on the applicant working a minimum of 35 hours per week. All applications will be evaluated against the experience or training requirements will be evaluated by this standard based on the rate of an applicant working a minimum of 35 hours per week. Any experience gained at a rate of less than 35 hours per week may be prorated in at the sole discretion of the board.

18VAC10-20-40. Good standing of applicants.

A. An applicant Applicants currently licensed, certified, or registered to practice architecture, engineering, land surveying, landscape architecture, or interior design in another jurisdiction shall be in good standing in every jurisdiction where licensed, certified, or registered, and.

B. Applicants shall not have had a license, certificate, or registration to practice architecture, engineering, land surveying, landscape architecture, or interior design that was suspended, revoked, or surrendered in connection with a disciplinary action or have been the subject of discipline in another a disciplinary action in any jurisdiction. An applicant who was formerly licensed, certified, or registered to practice architecture, engineering, land surveying, landscape architecture, or interior design in another jurisdiction shall not have had a license, certificate, or registration suspended, revoked, or surrendered in connection with a disciplinary action or have been the subject of discipline in another jurisdiction.

B. Applicants who do not meet the requirements of subsection A of this section may be approved following consideration by the board in accordance with the provisions of Administrative Process Act of the Code of Virginia.

18VAC10-20-50. Transfer of scores to other boards.

The board, in at its discretion and upon proper application, may forward the grades achieved by an applicant in the various examinations exams given under the board's jurisdiction to any other duly constituted registration board for use in evaluating such the applicant's eligibility for registration within such another board's jurisdiction or evaluation of such the applicant's national certification. An applicant requesting transfer of that his score be transferred to another registration board shall state his reason for requesting transfer in writing the request in writing.

18VAC10-20-55. Language and comprehension.

Every applicant applying Applicants for licensure or certification shall be able to speak and write English to the satisfaction of the board. Applicants whose primary language is has not always been English, or who have not graduated from a college or university in which English is the language of instruction, including, but not limited to, those born in a non-English speaking country, shall submit to the board a Test of English as a Foreign Language (TOEFL) Internet-based Test (TOEFL iBT) score report to the board, and a Test of Spoken English (TSE) score report to the board. Score reports shall not be over two years old at the time of application and, to support the application, must reflect a score acceptable to the board.

18VAC10-20-70. Modifications to examination administration.

The board and the department support and comply with the provisions of the Americans with Disabilities Act (ADA), 42 USC § 12101 et seq. Contracts between the board, department, and vendors for examinations contain provisions for compliance with the ADA. Requests for accommodations must be in writing and received by the board in the board's office within a reasonable time before the examination. The board may require a report from a medical professional along with supporting data confirming the nature and extent of the disability. It is the responsibility of the applicant to provide The applicant is responsible for providing the required information in a timely manner and including the costs for providing such the information are the responsibility of the applicant. The board or its agents will determine, consistent with applicable law, what, if any, any accommodations will to be made.

18VAC10-20-75. Conduct at examination.

Examinees Applicants approved for an exam will be given specific instructions as to the conduct of each division of the exam at the exam site. Examinees Applicants are required to follow these instructions to assure fair and equal treatment to all examinees applicants during the course of the examination exam. Evidence of misconduct may result in removal from the examination exam site, voided examination exam scores, or both.

18VAC10-20-85. Examination on regulations.

All applicants for licensure or certification must achieve a passing score on a board-supplied examination pertaining to the board's regulations and relevant statutes. The examination will be provided as part of the application. The board shall provide applicants with an exam on its regulations and statutes. All applicants for licensure or certification must achieve a passing score on this exam.

18VAC10-20-87. Expiration of initial licenses, certificates, and registrations.

A. Initial licenses, certificates, and registrations shall expire as follows:

1. Individual licenses and certificates shall be valid for two years from the last day of the month in which they are issued.

2. Registrations for professional corporations, professional limited liability companies, and business entities shall expire on December 31 of the odd-numbered year following issuance.

3. Registrations for branch offices shall expire the last day of February of the even-numbered year following issuance.

B. Licenses, certificates, and registrations shall expire in accordance with this section unless renewed pursuant to 18VAC10-20-670 or reinstated pursuant to 18VAC10-20-680.

Part III
Qualifications for Licensing of Architects

18VAC10-20-90. Fee schedule.

All fees are nonrefundable and shall not be prorated.

18VAC10-20-110. Education.

A. All applicants Applicants for original licensure shall hold a professional degree in architecture from a program accredited by the National Architectural Accrediting Board (NAAB) not later than two years after the applicant's graduation from said program. The degree program must have been accredited by NAAB no later than two years after the date of the applicant's graduation from the program.

B. Foreign degrees must be evaluated for equivalency to a NAAB-accredited degree Applicants seeking credit for a degree or coursework that is not NAAB-accredited, whether foreign or domestic, shall have that degree or coursework evaluated for equivalency to a NAAB-accredited professional degree in architecture. The board reserves the right to reject, for good cause, any evaluation submitted. Any cost of translation and evaluation shall be borne by the applicant.

18VAC10-20-120. Experience.

A. The successful completion of Applicants for original licensure shall successfully complete the National Council of Architectural Registration Boards (NCARB) Intern Development Program (IDP) shall be required of all applicants for original licensure. IDP training requirements shall be in accordance with NCARB's Handbook for Interns and Architects, 2008-2009 Intern Development Program Guidelines, December 2013 Edition.

B. All applicants Applicants must have a minimum of 36 months experience/training in architecture. Any experience/training of less than eight consecutive weeks will not be considered in satisfying this requirement.

C. All applicants must have a minimum of 12 months experience/training in architecture Of the 36 months of required experience/training in architecture, at least 12 months shall have been obtained as an employee in the office of a licensed architect. An organization will be considered to be an office of a licensed architect if:

1. The architectural practice of the organization in which the applicant works is under the charge of a person practicing as a principal, where a principal is a licensed architect in charge of an organization's architectural practice either alone or with other licensed architects, and the applicant works under the direct supervision of a licensed architect; and

2. The practice of the organization encompasses the comprehensive practice of architecture, including the categories set forth in the NCARB IDP requirements.

18VAC10-20-130. References.

Eligibility for licensure is determined in part by the applicant's demonstrated competence and integrity to engage in the practice of architecture. Applicants shall submit three references with the application, all of whom are which shall be from currently licensed architects in a state or other jurisdiction or territory of the United States or a province of Canada. In addition to the requirements found in 18VAC10-20-25, these professionals shall the applicant shall only submit references from licensed architects who have personal knowledge of the applicant's architectural experience that demonstrates the applicant's competence and integrity.

18VAC10-20-140. Examination.

A. All applicants The board is a member board of NCARB and is authorized to make available the NCARB-prepared exam. Applicants for original licensure in Virginia are required to pass an NCARB-prepared examination. Provided all other requirements are met, a license as an architect will be issued upon passing the NCARB examination this exam. An applicant shall be admitted to the NCARB-prepared examination prior to completing the experience requirements contained in 18VAC10-20-120 if the applicant is otherwise qualified and provided the applicant is enrolled in the NCARB IDP.

B. The Virginia board is a member board of NCARB and as such is authorized to make available the NCARB-prepared examination.

B. Applications for original licensure shall be approved by the board before applicants will be allowed to sit for the exam. Applicants who have satisfied the requirements of 18VAC10-20-110 and 18VAC10-20-130 and who are currently enrolled in the NCARB IDP shall be admitted to the exam.

C. Applicants approved by the board to sit for the exam shall register and submit the required exam fee and follow NCARB procedures when taking the exam. Applicants not properly registered will not be allowed to sit for the exam.

D. Applicants approved to sit for the exam shall be eligible for a period of three years from the date of their initial approval. Applicants who do not pass all sections of the exam during their eligibility period are no longer eligible to sit for the exam. To become exam-eligible again, applicants shall reapply to the board as follows:

1. Applicants who have taken at least one section of the exam and who reapply to the board no later than six months after the end of their eligibility may be approved to sit for the exam for an additional three years. The original application requirements shall apply.

2. Applicants who do not meet the criteria of subdivision 1 of this subsection shall reapply to the board and meet all entry requirements current at the time of reapplication.

E. Applicants will be notified by the board of whether they passed or failed the exam. The exam may not be reviewed by applicants. Exam scores are final and not subject to change.

F. Grading of the examination exam shall be in accordance with the national grading procedure administered by NCARB. The board shall utilize the scoring procedures recommended by NCARB. Grades for each division of the examination exam passed on or after January 1, 2006, shall be valid in accordance with the procedure established by NCARB.

D. The NCARB-prepared examination will be offered at least once a year at a time designated by the board.

E. G. The board may approve transfer credits for parts of the NCARB-prepared examination exam taken and passed in accordance with national standards.

H. Applicants who have been approved for and subsequently pass the exam and who have satisfied 18VAC10-20-120 shall be issued an architect license.

F. Unless otherwise stated, applicants approved to sit for an examination shall register and submit the required examination fee. Applicants not properly registered will not be allowed into the examination site.

G. Applicants approved to sit for the examination shall follow NCARB procedures.

H. Examinees will be notified by the board of passing or failing the examination.

I. Should an applicant fail to pass the NCARB-prepared examination within three years after being approved to sit for the examination, the applicant must reapply. If the applicant has not been taking the examination on a continuous basis during the three-year eligibility period, or fails to reapply within six months after the end of the three-year eligibility period, or both, then the applicant shall meet the entry requirements current at the time of reapplication.

18VAC10-20-150. Licensure by comity.

A. Any person who is or has been licensed in another state, jurisdiction, possession or territory of the United States, or a province of Canada, may be granted a license provided that:

1. The applicant meets all the requirements for licensing in Virginia that were in effect at the time of the original licensure or the applicant possesses an NCARB certificate; and

2. The applicant holds an active valid license in good standing in another state, jurisdiction, possession or territory of the United States, or a province of Canada.

If the applicant does not possess an NCARB certificate, or does not meet the requirements for licensure in Virginia that were in effect at the time of original licensure, the applicant shall be required to meet the entry requirements current at the time the completed application for comity is received in the board's office.

B. Applicants licensed in foreign countries other than Canada may be granted a license in Virginia based on an NCARB certificate.

A. Applicants who hold a valid active license in another state or other jurisdiction of the United States, a province of Canada, or another foreign country may be granted a license provided that:

1. They possess an NCARB certificate; or

2. They met the requirements for licensure in Virginia that were in effect at the time they were originally licensed.

B. Applicants who do not satisfy the requirements of subsection A of this section shall meet the entry requirements for initial licensure pursuant to this chapter.

Part IV
Qualifications for Licensing of Professional Engineers

18VAC10-20-160. Definitions.

The following words, terms, and phrases when used in this part shall have the meanings ascribed to them except where the context clearly indicates or requires different meanings:

"ABET" means the Accreditation Board for Engineering and Technology.

"Approved engineering curriculum" means an undergraduate engineering curriculum of four years or more, or a graduate engineering curriculum, approved by the board. ABET-approved engineering EAC curricula are approved by the board. Curricula that are accredited by ABET not later than two years after an applicant's graduation shall be deemed as ABET-approved.

"Approved engineering technology curriculum" means an undergraduate engineering technology curriculum of four years or more approved by the board. ABET-approved engineering technology TAC curricula of four years or more are approved by the board. Curricula that are accredited by ABET not later than two years after an applicant's graduation shall be deemed as ABET-approved.

"EAC" means Engineering Accreditation Commission.

"Engineer-in-training (EIT)" or "EIT" means an applicant who has completed any one of several combinations of education, or education and experience, and has passed the Fundamentals of Engineering examination exam.

"Related science curriculum" includes, but is not limited to, a four-year curriculum in biology, chemistry, geology, geophysics, mathematics, physics, or other curriculum approved by the board. Curriculums must have a minimum of six semester hours of mathematics courses beyond algebra and trigonometry and a minimum of six semester hours of science courses in calculus-based physics in order to be considered a related science curriculum.

"Qualifying engineering experience" means a record of progressive experience on engineering work during which the applicant has made a practical utilization of acquired knowledge and has demonstrated progressive improvement, growth, and development through the utilization of that knowledge as revealed in the complexity and technical detail of the applicant's work product or work record. The applicant must show progressive assumption of greater individual responsibility for the work product over the relevant period. The progressive experience on engineering work shall be of a grade and character that indicates to the board that the applicant is minimally competent to practice engineering. Qualifying engineering experience shall be progressive in complexity and based on a knowledge of engineering mathematics, physical and applied sciences, properties of materials, and fundamental principles of engineering design.

"TAC" means Technology Accreditation Commission.

18VAC10-20-170. Fee schedule.

All fees are nonrefundable and shall not be prorated.