REGULATIONS
TITLE 1. ADMINISTRATION
STATE BOARD OF ELECTIONS
REGISTRAR'S NOTICE:
The State Board of Elections is claiming an exemption from the Administrative
Process Act pursuant to § 2.2-4002 B 8 of the Code of Virginia, which
exempts agency action relating to the conduct of elections or eligibility to
vote.
Final Regulation
Title of Regulation: 1VAC20-50. Candidate
Qualification (amending 1VAC20-50-20).
Statutory Authority: § 24.2-103 of the Code of Virginia.
Effective Date: Effective upon the filing of the notice
of the U.S. Attorney General's preclearance with the Registrar of Regulations.
Agency Contact: David Blackwood, Policy Analyst, State
Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804)
864-8930, or email david.blackwood@sbe.virginia.gov.
Summary:
The amendments (i) incorporate
the requirements of Chapter 166 of the 2012 Acts of Assembly relating to the
qualifications of a candidate petition circulator and (ii) clarify the use of
the term "petition." The amendments also classify as material
omissions, which render the candidate petition invalid, (i)
the failure to identify the office sought on the front of the petition form;
(ii) the failure to identify the applicable election district in which the
candidate is running for office; and (iii) the failure to comply with statutory
notary requirements.
1VAC20-50-20. Material omissions from candidate petitions.
A. Pursuant to the requirements of §§ 24.2-506,
24.2-521, and 24.2-543 of the Code of Virginia, a petition page
should not be rendered invalid if it contains an error or omission not material
to its proper processing.
B. The following omissions are always material and any
petition containing such omissions should be rendered invalid if:
1. The petition submitted is not the double-sided, two-page
document, or a copy thereof, provided by the State Board of Elections;
2. The petition does not have the name, or some variation of
the name, and address of the candidate on the front of the form;
[ 3. The petition fails to identify the office sought
on the front of the form;
4. The petition fails to identify the applicable election
district in which the candidate is running for office; ]
[ 3. 5. ] The circulator has not
signed the petition affidavit and provided his current address;
[ 4. 6. ] The circulator is not a
registered voter or qualified to register and vote for the candidate The
circulator is (i) not a legal resident of the
Commonwealth, (ii) a minor, or (iii) a felon whose voting rights have not been
restored;
[ 5. 7. ] The circulator has not
signed each the petition page he circulated in the
presence of a notary;
[ 6. 8. ] The circulator has not had a
notary sign the affidavit for each petition submitted; [ or
9. The notary has not affixed a photographically
reproducible seal;
10. The notary has not included his registration number and
commission expiration date; or ]
[ 7. 11. ] Any combination of the
scenarios of this subsection exists.
C. If the circulator signs the petition in the
"Signature of Registered Voter," his signature shall be invalidated
but the petition page shall be valid notwithstanding any other error or
omission.
D. [ The petition should not be rendered invalid if:
The following omissions shall be treated as nonmaterial provided that the
omitted information can be independently verified: ]
1. An older version of the petition is used (provided that the
information presented complies with current laws, regulations, and guidelines);
[ 2. The "office sought" is omitted;
3. The "congressional district" is omitted;
4. 2. ] The "election
information" including (i) county, city, or town
in which the election will be held; (ii) election type; and (iii) date of
election are omitted;
[ 5. 3. ] The name of the candidate
and office sought are omitted from the back page of the petition;
[ or
6. The circulator has not indicated the county, city, or
town of his voter registration or voter eligibility in the affidavit;
7. 4. ] The circulator has not provided the
last four digits of his social security number in the affidavit [ ;. ]
[ 8. The notary has not affixed a photographically
reproducible seal; or
9. The notary has not included his registration number and
commission expiration date. ]
VA.R. Doc. No. R12-3156; Filed June 22, 2012, 2:50 p.m.
Final Regulation
Title of Regulation: 1VAC20-60. Election
Administration (amending 1VAC20-60-20).
Statutory Authority: § 24.2-103 of the Code of
Virginia.
Effective Date: Effective upon the filing of the notice
of the U.S. Attorney General's preclearance with the Registrar of Regulations.
Agency Contact: David Blackwood, Policy Analyst, State
Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8930,
or email david.blackwood@sbe.virginia.gov.
Summary:
The amendments (i) incorporate
the requirements of Chapter 166 of the 2012 Acts of the Assembly relating to
the qualifications of a referendum petition circulator and (ii) clarify the use
of the word "petition." The amendments also reclassify the failure to
comply with statutory notary requirements as a material omission rendering the
referendum petition invalid.
1VAC20-60-20. Material omissions on referendum petitions.
A. Pursuant to the requirements of § 24.2-684.1 of the
Code of Virginia, a petition should not be rendered invalid if it contains an
error or omission not material to its proper processing.
B. The following omissions are always material and any
petition containing such omissions should be rendered invalid if:
1. The petition submitted is not the double-sided, two-page
document, or a copy thereof, provided by the State Board of Elections;
2. The "question" or "referendum issue" is
not stated in a manner set forth by law on the front of the petition;
3. The circulator has not signed the petition affidavit and
provided his current address;
4. The circulator is not a registered voter or qualified to
register and vote on the issue The circulator is (i)
not a legal resident of the Commonwealth, (ii) a minor, or (iii) a felon whose
rights have not been restored;
5. The circulator has not signed the affidavit for each
the petition page he circulated in the presence of a notary;
6. The circulator has not had a notary sign the affidavit for
each petition submitted; [ or ]
7. [ Any combination of the aforementioned scenarios
exist. The notary has not affixed a photographically reproducible seal;
8. The notary has not included his registration number and
commission expiration date; or
9. Any combination of the aforementioned scenarios exist. ]
C. If the circulator signs the petition in the
"Signature of Registered Voter" field, his signature shall be
invalidated but the petition page shall be valid notwithstanding any
other error or omission.
D. Subdivision B 3 of this section does not apply to a school
board referendum submitted pursuant to § 24.2-57.2 or 24.2-165 of the Code of
Virginia.
E. [ The petition should not be rendered invalid if:
The following omissions shall be treated as nonmaterial provided that the
omitted information can be independently verified: ]
1. An older version of the petition is used (provided that the
information presented complies with current laws, regulations, and guidelines);
2. The "election information" including: (i) county, city, or town in which the election will be
held; (ii) election type; and (iii) date of election are omitted; [ or ]
[ 3. The circulator has not indicated the county,
city, or town of his voter registration or voter eligibility in the affidavit;
4. 3. ] The circulator has not provided the
last four digits of his social security number in the affidavit [ ;. ]
[ 5. The notary has not affixed a photographically
reproducible seal; or
6. The notary has not included his registration number and
commission expiration date. ]
VA.R. Doc. No. R12-3155; Filed June 22, 2012, 2:49 p.m.
Proposed Regulation
Title of Regulation: 1VAC20-70. Absentee Voting (amending 1VAC20-70-10).
Statutory Authority: § 24.2-103 of the Code of
Virginia.
Public Hearing Information:
August 23, 2012, 2 p.m. - General Assembly Building, 201
N. 9th Street, House Room C, Richmond, VA
Public Comment Deadline: August 17, 2012.
Agency Contact: Martha Brissette,
Policy Analyst, State Board of Elections, 1100 Bank Street, Richmond, VA 23219,
telephone (800) 552-9745 ext: 8925, FAX (804)
786-0760, TTY (800) 260-3466, or email martha.brissette@sbe.virginia.gov.
Summary:
The amendment removes "temporary" from the
definition of "Federal only ballot overseas voter."
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), 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.
"Temporary federal "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.
VA.R. Doc. No. R12-3286; Filed June 27, 2012, 10:00 a.m.
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TITLE 2. AGRICULTURE
BOARD OF AGRICULTURE AND CONSUMER SERVICES
Final Regulation
REGISTRAR'S NOTICE:
The Board of Agriculture and Consumer Services is claiming an exemption from
the Administrative Process Act in accordance with § 3.2-703
of the Code of Virginia, which exempts quarantine to prevent or retard the
spread of a pest into, within, or from the Commonwealth.
Title of Regulation: 2VAC5-335. Virginia Emerald Ash
Borer Quarantine for Enforcement of the Virginia Pest Law (amending 2VAC5-335-50).
Statutory Authority: § 3.2-703 of the Code of
Virginia.
Effective Date: June 22, 2012.
Agency Contact: Erin Williams, Policy and Planning
Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163,
Richmond, VA 23218, telephone (804) 371-1308, FAX (804) 371-7479, TTY (800)
828-1120, or email erin.williams@vdacs.virginia.gov.
Summary:
The amendment adds the counties of Charlotte, Halifax,
Lunenburg, Mecklenburg, and Pittsylvania and the city of Danville to the
emerald ash borer quarantine due to the detection of adult emerald ash
borers in Charlotte and Pittsylvania counties.
2VAC5-335-50. Regulated areas.
The following areas in Virginia:
The entire counties of:
Arlington
Charlotte
Clarke
Fairfax
Fauquier
Frederick
Halifax
Loudoun
Lunenburg
Mecklenburg
Pittsylvania
Prince William
The entire independent cities of:
Alexandria
Danville
Fairfax City
Falls Church
Manassas
Manassas Park
Winchester
VA.R. Doc. No. R12-3244; Filed June 22, 2012, 11:10 a.m.
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TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation
REGISTRAR'S NOTICE:
The Marine Resources Commission is claiming an exemption from the
Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code
of Virginia; however, the commission is required to publish the full text of
final regulations.
Title of Regulation: 4VAC20-450. Pertaining to the
Taking of Bluefish (amending 4VAC20-450-10, 4VAC20-450-30).
Statutory Authority: § 28.2-201 of the Code of
Virginia.
Effective Date: July 1, 2012.
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.
Summary:
The amendment sets the commercial landings quota for
bluefish from January 1 through December 31 at 1,225,649 pounds.
4VAC20-450-10. Purpose.
Stock assessment information indicates that bluefish
stocks along the Atlantic Coast are fully exploited and show signs of declining
abundance. One purpose The purposes of this chapter is are
to control the recreational harvest of bluefish (which constitutes
approximately 77% of the fishing coastwide) and
to establish a commercial quota system for Virginia bluefish landings, in
cooperation with the Mid-Atlantic Fishery Management Council and other
coastal states, to prevent overfishing. A second purpose is to establish a
commercial quota system for Virginia bluefish landings when the coastwide commercial fishery is projected to equal or
exceed 20% of total (recreational and commercial) landings.
4VAC20-450-30. Commercial landings quota.
A. During the period of January 1 through December 31,
commercial landings of bluefish shall be limited to 1,113,727 1,225,649
pounds.
B. When it is projected that 95% of the commercial landings
quota has been realized, a notice will be posted to close commercial harvest
and landings from the bluefish fishery within five days of posting.
C. It shall be unlawful for any person to harvest or land
bluefish for commercial purposes after the closure date set forth in the notice
described in subsection B of this section.
VA.R. Doc. No. R12-3288; Filed June 28, 2012, 2:18 p.m.
VIRGINIA SOIL AND WATER CONSERVATION BOARD
Proposed Regulation
REGISTRAR'S NOTICE:
The Virginia Soil and Water Conservation Board is claiming an exemption from
the Administrative Process Act pursuant to § 10.1-104.9 of the Code of
Virginia, which establishes a regulatory process for the promulgation of
regulations for the enforcement of Article 1.1 (§ 10.1-104.7 et seq.) of
Title 10.1 of the Code of Virginia relating to resource management plans.
Title of Regulation: 4VAC50-70. Resource Management
Plans (adding 4VAC50-70-10 through 4VAC50-70-150).
Statutory Authority: § 10.1-104.8 of the Code of
Virginia.
Public Hearing Information:
August 13, 2012, 7 p.m. - Bland Hall, Room 104, Wytheville
Community College, 1000 East Main Street, Wytheville, VA
August 14, 2012, 7 p.m. - Smith Transfer Room West, Augusta
County Government Center, 18 Government Center Lane, Verona, VA
August 15, 2012, 7 p.m. - James City County Community
Center, Community Room A, 5301 Longhill
Road, Williamsburg, VA
Public Comment Deadline: September 14, 2012.
Agency Contact: David C. Dowling, Policy and Planning
Director, Department of Conservation and Recreation, 203 Governor Street, Suite
302, Richmond, VA 23219, telephone (804) 786-2291, FAX (804) 786-6141, or email
david.dowling@dcr.virginia.gov.
Basis: Chapter 781 of the 2011 Virginia Acts of Assembly
(HB1830) authorized the Virginia Soil and Water Conservation Board to establish
regulations that specify the criteria to be included in a resource management
plan and set out the regulatory process by which the regulations are
promulgated. The proposed regulations meet the intent of § 10.1-104.7 of
the Code of Virginia and remain true to the regulatory criteria framework set
out in § 10.1-104.8 of the Code of Virginia. The regulatory process
followed is in accordance with § 10.1-104.9 of the Code of Virginia.
Purpose: The regulation implements a process by which
farmers may improve the water quality of Virginia's rivers and the Chesapeake
Bay through the voluntary implementation of a high level of best management
practices (BMPs) on their property and thereby be certified for a nine-year
period as being compliant with (i) any load
allocation contained in a total maximum daily load (TMDL) established under
303(d) of the federal Clean Water Act addressing benthic, bacteria, nutrient,
or sediment impairments; (ii) any requirements of the Virginia Chesapeake Bay
TMDL Watershed Implementation Plan; and (iii) applicable state water quality
requirements for nutrients and sediment. Such action will protect the health,
safety, and welfare of citizens through the water quality improvements that
will result through implementation of the proposed regulations.
Within the Chesapeake Bay watershed, this regulatory action
will address the Environmental Protection Agency's (EPA) established
requirements within the state Watershed Implementation Plans (WIP) as part of a
larger Chesapeake Bay TMDL accountability framework. Virginia's Phase I WIP was
approved by EPA on December 29, 2010. Additionally, as part of the
accountability framework, the Commonwealth submitted preliminary milestones for
2012-2013 to EPA on November 4, 2011, and final programmatic milestones on
January 6, 2012. These represent the first set of two-year milestone commitments
associated with the Bay TMDL. Virginia submitted a draft Phase II WIP document
on December 15, 2011, and a final Phase II WIP on March 30, 2012. This document
supplements the strategies offered in Virginia's Phase I WIP. The resource
management plan regulations are a component of the WIP and the milestones. The
RMP regulations set forth specific criteria for the implementation of a suite
of agricultural BMPs and will serve to promote greater and more consistent use
of voluntary agricultural practices across the state. The RMP regulations,
though voluntary, provide an incentive to farmers who utilize agricultural BMPs
in that they will receive a "safe harbor" from future mandatory
requirements related to the Chesapeake Bay TMDL. They may also be used as a baseline
for participation in the expanded nutrient credit exchange program. By
incentivizing such practices, the RMP program can serve as a mechanism for
localities to implement their agricultural strategies and BMPs.
This regulatory approach was also determined to be the best
path forward in order to meet the necessary nutrient and sediment reductions
and to protect the health, safety, or welfare of citizens. In 2010, the
Department of Conservation and Recreation developed several draft bills for the
consideration of the Administration and the public that would have made
livestock exclusion and nutrient management planning mandatory. These draft
proposals were floated to stakeholders for comment. In response to these
comments and discussions with stakeholders and the Administration and in lieu
of these mandatory actions, a more progressive piece of legislation
establishing a voluntary resource management plan approach was introduced and
enacted by the General Assembly and Governor.
Accordingly, the resulting legislation (Chapter 781 of the 2011
Acts of Assembly (HB1830)) authorized the Virginia Soil and Water Conservation
Board to establish new regulations that clarify and specify the criteria that
must be included in a resource management plan and the processes by which a
certificate of RMP implementation is issued and maintained.
As specified in the resulting law, it is the goal of these
regulations to:
1. Be technically achievable and take into consideration the
economic impact to the agricultural landowner or operator;
2. Include (i) determinations of
persons qualified to develop resource management plans and to perform on-farm
best management practice assessments; (ii) plan approval or review procedures
if determined necessary; (iii) allowable implementation timelines and
schedules; (iv) determinations of the effective life of the resource management
plans taking into consideration a change in or a transfer of the ownership or
operation of the agricultural land, a material change in the agricultural
operations, issuance of a new or modified TMDL implementation plan for the
Chesapeake Bay or other local TMDL water quality requirements, and a
determination pursuant to Chapter 4 (§ 3.2-400 et seq.) of Title 3.2 of
the Code of Virginia that an agricultural activity on the land is creating or
will create pollution; (v) factors that necessitate renewal or new plan
development; and (vi) a means to determine full implementation and compliance
with the plans including reporting and verification;
3. Provide for a process by which an on-farm assessment of all
reportable best management practices currently in place, whether as part of a
cost-share program or through voluntary implementation, shall be conducted to
determine their adequacy in achieving needed on-farm nutrient, sediment, and
bacteria reductions;
4. Include agricultural best management practices sufficient to
implement the Virginia Chesapeake Bay TMDL Watershed Implementation Plan and
other local TMDL water quality requirements of the Commonwealth; and
5. Specify that the required components of each resource
management plan shall be based upon an individual on-farm assessment. Such
components shall comply with on-farm water quality objectives as set forth in
subdivision B 4 (directly above), including best management practices
identified in this subdivision and any other best management practices approved
by the board or identified in the Chesapeake Bay Watershed Model or the
Virginia Chesapeake Bay TMDL Watershed Implementation Plan.
On a statewide basis, the voluntary implementation of these
regulations will provide substantial incentives to farmers to implement high
priority water quality conservation practices and specifically within the
Chesapeake Bay watershed, implementation will help the Commonwealth meet its
commitments outlined in the Phase II Watershed Implementation Plan and provide
for "agricultural certainty."
Substance: This entire regulatory action involves the
promulgation of a new regulation by the Virginia Soil and Water Conservation
Board titled Resource Management Plans (4VAC50-70).
The key substantive elements of this proposed regulatory action
include:
1. Establishment of minimum standards of a resource management
plan (RMP) (4VAC50-70-40);
2. Processes for the development, updating, and approval of an RMPs by RMP reviewers (4VAC50-70-50) and (4VAC50-70-60);
3. Processes to ensure the implementation of an RMP and for
issuance of a certificate of RMP implementation (4VAC50-70-70) and (4VAC50-70-80);
4. Processes associated with conducting inspections by the RMP
reviewer and ensuring RMP compliance after certificate issuance by the
Department of Conservation and Recreation including issuance of deficiency
notices and development and implementation of corrective action agreements
(4VAC50-70-90) and (4VAC50-70-100);
5. Procedures for the review of duties performed by local soil
and water conservation districts; (4VAC50-70-130); and
6. Establishment of qualifications and certification processes
for RMP developers and the issuance or revocation of an RMP developer
certificate by the Department of Conservation and Recreation (4VAC50-70-140).
Issues: The framework and content of this regulatory
action largely tracks the specifics outlined in the Code of Virginia regarding
the promulgation of these regulations. As such, limited discretion regarding
voluntary compliance requirements was available. However, the department
working with the Regulatory Advisory Panel to develop the proposed regulations
was careful to minimize, where latitude did exist, disadvantages of the program
and to develop a program that will have water quality advantages for the
general public and compliance protection for the farmer when under Certificate
of RMP Implementation. Voluntary participation in this regulatory program will
be an advantage to the Commonwealth as it will help the Commonwealth meet its
commitments outlined in the Phase II Watershed Implementation Plan and other
TMDLs and provide for "agricultural certainty."
Additional information regarding the advantages and
disadvantages to the public may be found in the Department of Planning and
Budget's Economic Impact Analysis.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. In accordance
with Chapter 781 of the 2011 Virginia Acts of Assembly (HB1830) the Virginia
Soil and Water Conservation Board proposes to establish these new regulations
in order to clarify and specify the criteria that must be included in a resource
management plan (RMP) for farmers and the processes by which a Certificate of
RMP Implementation is issued and maintained. Neither RMP implementation nor the
obtaining of a Certificate of RMP Implementation is required. The intent of the
regulatory action is to encourage farm owners and operators to voluntarily
implement a high level of best management practices (BMPs) on their farmlands
in order to be protective of water quality and for the farmers to then benefit
from the following legal provision:
notwithstanding any other provision of law, agricultural
landowners or operators who fully implement and maintain the applicable
components of their resource management plan, in accordance with the criteria
for such plans set out in 10.1-104.[8] and any regulations adopted thereunder,
shall be deemed to be in full compliance with (i) any
load allocation contained in a total maximum daily load (TMDL) established
under 303(d) of the federal Clean Water Act addressing benthic, bacteria,
nutrient, or sediment impairments; (ii) any requirements of the Virginia
Chesapeake Bay TMDL Watershed Implementation Plan; and (iii) applicable state
water quality requirements for nutrients and sediment.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. Participation in the RMP program is
completely optional; thus the proposed regulations do not introduce costs to
the public. To the extent that farmers choose to follow BMPs that they are not
already following due to these regulations and the RMP program, there will
likely be some improvement to water quality in the Chesapeake Bay and other
Virginia waterways. Improved water quality can potentially benefit commercial
and recreational fisheries and tourism, increase property values, and reduce
public health costs. Several different types of firms (see below) may see
increased demand for their services and products in order to help farmers
follow BMPs and acquire a Certificate of RMP Implementation.
Businesses and Entities Affected. The proposed regulations
potentially affect: 1) the 47,000 (approximation) farms in the Commonwealth, 2)
private contractors and consultants that perform conservation planning and
implementing services for farmers, 3) sellers of fencing materials, livestock
watering systems, fertilizer, and farming machinery that improves efficiency
and productivity and minimizes nonpoint source pollution, 4) commercial
fisheries, and 5) tourism-related businesses. Most of these farms and firms
would qualify as small businesses. Virginias 47 local Soil and Water
Conservation Districts will be responsible for performing many of the programs
oversight functions including engaging agricultural communities at the local
level. The public and other entities may be affected through the benefits
associated with cleaner water such as improved health, better recreational
experiences, and higher property values.
Localities Particularly Affected. The proposed regulations
affect all Virginia localities, but may particularly affect the more
agriculturally oriented parts of the Commonwealth.
Projected Impact on Employment. The proposed regulations may
moderately increase business and hence employment at some of the following
types of small firms: 1) private contractors and consultants that perform
conservation planning and implementing services for farmers, 2) sellers of
fencing materials, livestock watering systems, fertilizer, and farming
machinery that improves efficiency and productivity and minimizes nonpoint
source pollution, and 3) tourism-related businesses. Commercial fisheries may
encounter increased numbers of aquatic life to process and hence have need for
more employees.
Effects on the Use and Value of Private Property. The proposed
regulations may moderately increase business and hence value for some of the
following types of firms: 1) private contractors and consultants that perform
conservation planning and implementing services for farmers, 2) sellers of
fencing materials, livestock watering systems, fertilizer, and farming
machinery that improves efficiency and productivity and minimizes nonpoint
source pollution, and 3) tourism-related businesses. Commercial fisheries may
encounter increased numbers of aquatic life and hence have more product to
sell, potentially increasing firm value. Improved water quality may also raise
property (real estate) values.
Small Businesses: Costs and Other Effects. The proposed
regulations will not produce costs for small businesses, but may moderately
increase business for some of the following types of small firms: 1) private
contractors and consultants that perform conservation planning and implementing
services for farmers, 2) sellers of fencing materials, livestock watering
systems, fertilizer, and farming machinery that improves efficiency and
productivity and minimizes nonpoint source pollution, and 3) tourism-related
businesses. Small commercial fisheries may encounter increased numbers of
aquatic life and hence have more product to sell.
Small Businesses: Alternative Method that Minimizes Adverse
Impact. The proposed regulations do not adversely impact small businesses.
Real Estate Development Costs. To the extent that water quality
is improved, the proposed regulations may in some cases reduce real estate
development costs through reduced need to address polluted water on development
sites.
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: The
Department of Conservation and Recreation concurs with the economic impact
analysis prepared by the Department of Planning and Budget regarding the
Resource Management Plans Regulation (4VAC50-70).
Summary:
In accordance with Chapter 781 of the 2011 Virginia Acts of
Assembly (HB1830), this action establishes a new regulation related to resource
management plans (RMPs) that represents a balanced process by which farmers may
voluntarily implement a high level of best management practices that are
protective of water quality and that may be applied toward necessary nutrient
and sediment reductions associated with the Chesapeake Bay Watershed
Implementation Plan and other total maximum daily loads.
Substantive elements of this proposed regulatory action
include: (i) establishment of minimum standards of an
RMP; (ii) processes for the development, updating, and approval of an RMP by
RMP reviewers; (iii) processes to ensure the implementation of an RMP and for
issuance of a Certificate of RMP Implementation; (iv) processes associated with
conducting inspections by the RMP reviewer and ensuring RMP compliance after
certificate issuance by the Department of Conservation and Recreation including
issuance of deficiency notices and development and implementation of corrective
action agreements; (v) procedures for the review of duties performed by local
soil and water conservation districts; and (vi) establishment of qualifications
and certification processes for RMP developers and the issuance or revocation
of an RMP developer certificate by the Department of Conservation and
Recreation.
CHAPTER 70
RESOURCE MANAGEMENT PLANS
4VAC50-70-10. Definitions.
The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise.
"Assessment" means an onsite review of a
management unit.
"Best management practice" or "BMP"
means structural and nonstructural practices that manage soil loss, nutrient
losses, or other pollutant sources to minimize pollution of water resources and
improve water quality.
"Board" means the Virginia Soil and Water
Conservation Board.
"Corrective action agreement" means a written
agreement that guides the owner or operator in the steps needed and the
specific remedies required to return to compliance with the minimum standards
of a resource management plan.
"Department" means the Department of
Conservation and Recreation.
"Management unit" means one or more agricultural
fields or United States Department of Agriculture Farm Service Agency tracts
under the control of the owner or operator and identified as the appropriate
unit for RMP implementation. The management unit may consist of multiple fields
and tracts or an entire agricultural operation.
"NRCS" means the United States Department of
Agriculture Natural Resources Conservation Service.
"Operator" means a person who exercises
managerial control over the management unit.
"Owner" means a person who owns land included in
a management unit.
"Person" means an individual, corporation,
partnership, association, state, municipality, commission, or political
subdivision of a state, governmental body, any interstate body, or any other
legal entity.
"Resource management plan" or "RMP"
means a plan developed and implemented pursuant to the standards established by
this chapter.
"Review authority" means a soil and water
conservation district or the department where no soil and water conservation
district exists that is authorized under this chapter to determine the adequacy
of a resource management plan and perform other duties specified by this
chapter.
"RMP developer" means an individual who meets
the qualifications established by this chapter to prepare or revise a resource
management plan.
"Soil and water conservation district" or
"district" means a political subdivision of the Commonwealth
organized in accordance with the provisions of Chapter 5 (§ 10.1-500 et
seq.) of Title 10.1 of the Code of Virginia.
"Technical Review Committee" or "TRC"
means a committee established by a soil and water conservation district board
to review RMPs and provide recommendations to the soil and water conservation
district board regarding RMPs. A TRC may include, but not be limited to, the
following members: soil and water conservation district directors, associates,
and personnel; Virginia Cooperative Extension personnel; department nutrient
management specialists; and such other technical resources available to the
district.
"Total maximum daily load" or "TMDL"
means a calculation of the maximum amount of a pollutant that a waterbody can receive and still meet water quality
standards and an allocation of that amount to the pollutant's sources. A TMDL
includes wasteload allocations for point source
discharges and load allocations for nonpoint sources or natural background, or
both, and must include a margin of safety and account for seasonal variations.
4VAC50-70-20. Purpose and authority.
Pursuant to Article 1.1 (§ 10.1-104.7 et seq.) of
Title 10.1 of the Code of Virginia, this chapter is adopted to clarify and
specify the criteria that must be included in a resource management plan and
the processes by which a Certificate of RMP Implementation is issued and
maintained. Except as provided for in 4VAC50-70-30, agricultural landowners or
operators who fully implement and maintain the applicable components of their
resource management plans, in accordance with the criteria for such plans set
out in § 10.1-104.8 of the Code of Virginia and any requirements of this
chapter, shall be deemed to be in full compliance with any load allocation
contained in a TMDL established under § 303(d) of the federal Clean Water
Act addressing benthic, bacteria, nutrient, or sediment impairments; any requirements
of the Virginia Chesapeake Bay TMDL Watershed Implementation Plan; and
applicable state water quality requirements for nutrients and sediment.
4VAC50-70-30. Applicability of other laws and regulations.
Nothing in this chapter shall be construed as limiting the
applicability of other laws, regulations, or permits including, but not limited
to, a Virginia Pollutant Discharge Elimination System Permit, a Virginia
Pollution Abatement Permit, a nutrient management plan otherwise required by
law, any requirements of the Chesapeake Bay Preservation Act, and any
requirements of the Agricultural Stewardship Act.
4VAC50-70-40. Minimum standards of a resource management
plan.
A. Pursuant to Article 1.1 (§ 10.1-104.7 et seq.) of
Title 10.1 of the Code of Virginia, a resource management plan requires the
implementation of BMPs sufficient to implement the Virginia Chesapeake Bay TMDL
Watershed Implementation Plan and other local TMDL water quality requirements
of the Commonwealth. Pursuant to subdivision B 5 of § 10.1-104.8 of the
Code of Virginia, a RMP shall address all of the following BMP requirements
when applicable to the management unit and needed based upon an on-farm
assessment of the following land uses:
1. For all cropland or specialty crops:
a. A nutrient management plan that meets the specifications
of the Nutrient Management Training and Certification Regulations (4VAC5-15);
b. A forest or grass buffer between cropland and perennial
streams shall be consistent with NRCS standards and specifications, except no
buffer shall be less than a minimum width of 35 feet as measured from the top
of the channel bank to the edge of the field to meet water quality objectives;
c. A soil conservation plan that achieves a maximum soil
loss rate to "T" as defined by NRCS and such BMPs necessary to
address gross erosion when it is present as gullies or other severely eroding
conditions; and
d. Cover crops, when needed to address nutrient management
and soil loss requirements, that provide for reportable practices which meet
best management practice specifications as determined by NRCS or the Virginia
Agricultural Best Management Practices Cost-Share Program.
2. For all hayland:
a. A nutrient management plan that meets the specifications
of the Nutrient Management Training and Certification Regulations (4VAC5-15);
b. A forest or grass buffer between cropland and perennial
streams shall be consistent with NRCS standards and specifications, except no
buffer shall be less than a minimum width of 35 feet as measured from the top
of the channel bank to the edge of the field to meet water quality objectives;
and
c. A soil conservation plan that achieves a maximum soil
loss rate to "T" as defined by NRCS and such BMPs necessary to
address gross erosion when it is present as gullies or other severely eroding
conditions.
3. For all pasture:
a. A nutrient management plan that meets the specifications
of the Nutrient Management Training and Certification Regulations (4VAC5-15);
b. A pasture management plan or soil conservation plan that
achieves a maximum soil loss rate of "T" as defined by NRCS and such
BMPs necessary to address gross erosion when it is present as gullies or other
severely eroding conditions; and
c. A system that limits or prevents livestock access to
perennial streams requires that:
(1) Any fencing or exclusion system provides year-round
livestock restriction to perennial streams;
(2) A forest or grass buffer between the exclusion system
and a perennial stream shall be consistent with NRCS standards and
specifications, except no buffer shall be less than a minimum width of 35 feet
as measured from the top of the channel bank to the exclusion system to meet
water quality objectives; and
(3) Provisions that are made for access through stream
crossings and livestock watering systems are designed to NRCS standards and
specifications and are determined necessary by the RMP developer.
B. Other BMPs approved by the department may be applied to
achieve the minimum standards of this section beyond those already identified
by NRCS or within the Virginia Agricultural Best Management Practices
Cost-Share Program.
C. The department shall evaluate the minimum standards of
this section to determine their adequacy when revisions occur to a load
allocation contained in a TMDL established under § 303(d) of the federal
Clean Water Act addressing benthic, bacteria, nutrient, or sediment
impairments; requirements of the Virginia Chesapeake Bay TMDL Watershed
Implementation Plan; and applicable state water quality requirements for
nutrients and sediment. Changes to the minimum standards by the board may
result in the use of BMPs identified in the Chesapeake Bay Watershed Model,
identified in the Virginia Chesapeake Bay TMDL Watershed Implementation Plan,
or approved by the department.
4VAC50-70-50. Components of a resource management plan.
A. Pursuant to subdivision B 3 of § 10.1-104.8 of the
Code of Virginia, an assessment shall be performed by the RMP developer or by
an individual authorized by the RMP developer to perform work on his behalf and
shall gather and evaluate the following information:
1. Information on the location of the management unit,
including geographic coordinates, United States Department of Agriculture Farm
Service Agency tract number or numbers, if applicable, or the locality tax
parcel identification number or numbers;
2. Description of the management unit, including acreage,
water features, environmentally sensitive features, erosion issues, and
agricultural activity;
3. Contact information for the owner or operator who has
requested the RMP, including name, address, and telephone number;
4. Authorization from the owner or operator for the RMP
developer, or his designee, for right of entry and access to property specified
within the management unit and authorization to obtain copies of any
conservation or water quality plans necessary for the assessment;
5. Copies of nutrient management plans, soil conservation
plans from NRCS, RMPs, and any other conservation or water quality plan that
includes the implementation of BMPs; and
6. Information on the location and status of all BMPs and
other alternative measures applicable to the management unit that are currently
implemented.
B. Following the assessment provided in subsection A of
this section, the RMP developer shall prepare the RMP in a format established
by the department or in a format approved by the board as equivalent that
contains the following components:
1. A determination of the adequacy of existing BMPs,
conservation plans, and water quality plans in meeting the minimum standards
set out in 4VAC50-70-40;
2. A complete list of BMPs, developed as a result of the
assessment required in subsection A of this section, that may be utilized to
meet the minimum standards set out in 4VAC50-70-40;
3. A complete list of the BMPs that the owner or operator
agrees to implement or maintain to meet the minimum standards set out in
4VAC50-70-40;
4. A confirmation of BMPs that achieve the minimum
standards set out in 4VAC50-70-40;
5. A schedule for the implementation of the BMPs;
6. An inclusion of any current nutrient management plans,
soil conservation plans, and any other conservation or water quality plans that
include the implementation of BMPs; and
7. Other information collected pursuant to subsection A of
this section.
C. Certification.
1. The RMP developer must certify that the RMP is true and
correct in his professional judgment.
2. The RMP must be signed by the owner or operator
affirming that he:
a. Is the responsible individual to be implementing the RMP
in its entirety;
b. Shall adhere to the RMP;
c. Shall allow the review authority to conduct inspections
of properties within the management unit as needed to ensure the adequacy of
the RMP in accordance with 4VAC50-70-70;
d. Shall notify the RMP developer within 60 days of
potential material changes to the management unit that may require revision of
the plan pursuant to 4VAC50-70-60; and
e. Shall notify the review authority of a complete change
in owner or operator of the management unit or units under the RMP. If a
management unit falls within one or more soil and water conservation districts,
the owner or operator shall contact the district containing the greatest land
area of the management unit.
4VAC50-70-60. Revisions to a resource management plan.
A. Upon notification of the review authority by an owner
or operator of a change in owner or operator of the management unit with a
signed RMP, in accordance with 4VAC50-70-50 C 2 e, where it involves the
complete transfer of one or more RMPs and any Certificate or Certificates of
RMP Implementation previously issued by the department for such RMPs:
1. The review authority shall contact the new owner or
operator within 60 days of the new owner or operator assuming control of the
management unit regarding implementation of the RMP and any necessary
revisions.
2. Following consultation with the review authority, the
new owner or operator may elect to:
a. Implement and maintain the provisions of the existing
RMP. The new owner or operator must sign the RMP in accordance with
4VAC50-70-50 C. If a Certificate of RMP Implementation has been issued to the
prior owner or operator, the certificate shall be transferred by the department
to the new owner or operator upon notification by the review authority. The
transferred certificate shall be valid for the balance of time remaining since
it was originally issued by the department;
b. Contact the RMP developer when changes in the operation
are planned by the new owner or operator or are otherwise required by this
chapter. The new owner or operator may request the RMP developer to revise the
RMP as necessary to fulfill BMP requirements pursuant to 4VAC50-70-50 and the
administrative requirements of subsection D of this section; or
c. Choose not to continue implementing the RMP. If a
Certificate of RMP Implementation for the management unit has been issued, it
shall be revoked by the department.
B. Upon notification of the RMP developer by the owner or
operator of the management unit with a signed RMP, in accordance with
4VAC50-70-50 C, that changes in the management unit or implementation of the
RMP may create needs for revision, the RMP developer shall review the RMP
within 30 days to determine if material changes to the management unit require
a revision of the RMP in accordance with the following:
1. Material changes to the management unit that may require
a revision of the RMP include:
a. A conversion from one type of agricultural operation to
another;
b. A change in the schedule and type of BMPs implemented
pursuant to 4VAC50-70-50;
c. An increase or decrease in production acreage that
materially impacts the management unit's ability to meet the minimum standards
set out in 4VAC50-70-40;
d. An increase or decrease in livestock population that
materially impacts the management unit's ability to meet the minimum standards
set out in 4VAC50-70-40; or
e. Any other change the RMP developer identifies that would
materially impact the management unit's ability to meet the minimum standards
set out in 4VAC50-70-40.
2. The RMP developer will determine if revision of the RMP
is required. When the RMP developer determines that revision of the existing
RMP is not necessary, the RMP developer shall provide such determination to the
requesting owner or operator in writing. Such documentation shall be available
upon inspection by the review authority. When the RMP developer determines that
revision of the existing RMP is necessary, the owner or operator may elect to:
a. Request the RMP developer to revise the RMP as necessary
to fulfill RMP requirements pursuant to 4VAC50-70-50 and the administrative
requirements of subsection D of this section; or
b. Choose not to continue implementing a RMP whereupon the
RMP for the management unit shall no longer be valid. The RMP developer shall
notify the review authority and the department in writing of this decision by
the owner or operator. If a Certificate of RMP Implementation for the
management unit has been issued, it shall be revoked by the department.
C. When an owner or operator does not hold a Certificate
of RMP Implementation for an RMP that has been approved by the review
authority, revision of the RMP is required when a new or modified watershed
implementation plan is issued for the Chesapeake Bay or a new or modified local
approved TMDL is issued that assigns a load to agricultural uses. An RMP
covering land with waters that drain to such TMDL shall be deemed sufficient
when the RMP has been revised to address the new or modified TMDL and the owner
or operator agrees to implement the revised RMP, except as provided in
subsection D of this section.
D. When an owner or operator holds a Certificate of RMP
Implementation that has not expired, revision of the RMP specified in
subsection C of this section is not required. In this case the owner or
operator may continue operation of the RMP without revision due to a new or
modified watershed implementation plan for the Chesapeake Bay or a new or
modified local approved TMDL for the lifespan of the Certificate of RMP
Implementation so long as the owner or operator is deemed to be fully
implementing the RMP.
E. When an owner or operator with a revised RMP fulfills
all requirements pursuant to this section and 4VAC50-70-70, and the owner or
operator holds a Certificate of RMP Implementation that has not expired for the
management unit addressed by the revised RMP, the owner or operator may request
that the department revoke the existing Certificate of RMP Implementation and
issue a new Certificate of RMP Implementation. The department shall evaluate
and respond to all requests. Upon verification that all requirements have been
satisfied, the department shall issue a new Certificate of RMP Implementation
in a timely manner and ensure that no owner or operator is found out of
compliance with any requirements of this chapter due to any delays in the
department's issuance of a new Certificate of RMP Implementation pursuant to
this subsection even if the original certificate expires during this issuance
time period.
F. Revision of an RMP by an RMP developer requires:
1. If a Certificate of RMP Implementation has not been
issued, the revised RMP shall be provided to the review authority and shall be
subject to all review requirements set out in 4VAC50-70-70 and shall be subject
to the requirements for issuance of a Certificate of RMP Implementation
pursuant to 4VAC50-70-80.
2. If a Certificate of RMP Implementation has been issued
by the department and its duration has not expired, such existing Certificate
of RMP Implementation shall remain valid for the balance of time remaining
since it was originally issued by the department or a new Certificate of RMP
Implementation may be issued where appropriate in accordance with subsection E
of this section.
3. An existing or new owner or operator shall sign a
revised RMP pursuant to 4VAC50-70-50 C.
4. When a valid Certificate of RMP Implementation has been
issued by the department for the management unit, the RMP developer shall
provide the review authority and the department with a copy of a revised RMP
within 30 days of completion of the revised plan.
4VAC50-70-70. Review of a resource management plan.
A. Upon completion of a new or revised RMP in accordance
with 4VAC50-70-50 and 4VAC50-70-60, the owner or operator or the RMP developer
on behalf of the owner or operator, shall submit the RMP to the review
authority.
B. Each soil and water conservation district shall
establish a Technical Review Committee (TRC). RMPs received by a soil and water
conservation district shall be referred to the TRC for review to ensure the RMP
fully meets the minimum standards set forth in 4VAC50-70-40 and the components
specified in 4VAC50-70-50. Within 90 days of receipt of the RMP, the soil and
water conservation district shall notify the owner or operator and the RMP
developer in writing if the RMP fulfills such requirements. An RMP that fails
to fulfill such requirements shall be returned to the RMP developer noting all
deficiencies. A revised RMP may be resubmitted once the noted deficiencies have
been satisfactorily addressed. Revised submittals shall be reviewed and a
response regarding RMP sufficiency or a listing of RMP deficiencies provided
within 45 days of receipt.
C. If an RMP is located within multiple soil and water
conservation districts, each TRC will review the portion of the plan applicable
to the management unit within their district, either in consultation or
independently of each other. The soil and water conservation district with the
largest amount of acreage under the RMP has lead responsibility for (i) coordinating the review among multiple districts; (ii)
resolving disputes; (iii) corresponding with the owner or operator and RMP
developer regarding the RMP review; and (iv) when appropriate, submitting
required documentation to the department to support issuance of a Certificate
of RMP Implementation.
D. RMPs received by the department where no local soil and
water conservation district exists must fully meet minimum standards set forth
in 4VAC50-70-40 and the components specified in 4VAC50-70-50 and shall be
reviewed by the department. Within 90 days of receipt of the RMP, the
department shall notify the owner or operator and the RMP developer if the RMP
fulfills such requirements. An RMP that fails to fulfill such requirements
shall be returned to the RMP developer noting all deficiencies. A revised RMP
may be resubmitted once the noted deficiencies have been satisfactorily
addressed. Revised submittals shall be reviewed and a response regarding RMP
sufficiency or a listing of RMP deficiencies provided within 45 days of
receipt.
E. When an RMP is determined by the review authority to be
insufficient to meet minimum standards set forth in 4VAC50-70-40 and the
components specified in 4VAC50-70-50, such review authority shall work with the
owner or operator and the RMP developer to revise the RMP.
F. Where an RMP is deemed sufficient, the notification
issued to the owner or operator and the RMP developer by the review authority
shall include approval of the plan and its implementation in accordance with
subsection B or D of this section, whichever is applicable.
G. When an owner or operator is aggrieved by an action of
the review authority pursuant to this section, the owner or operator shall have
a right to appeal in accordance with 4VAC50-70-110.
4VAC50-70-80. Issuance of a Certificate of Resource
Management Plan Implementation.
A. Prior to issuance of a Certificate of RMP
Implementation for a management unit, confirmation shall be made by the RMP
developer that no revision of the RMP is required in accordance with
4VAC50-70-60 and as such is adequate, and verification of the full
implementation of the RMP shall be completed. The owner or operator shall
request the verification of RMP implementation by the review authority.
B. The request to the review authority for verification in
a format provided by the department shall include the following:
1. A complete copy of the RMP including any referenced
plans;
2. Authorization for review authority employees to conduct
an onsite inspection of the management unit to ensure the RMP is fully
implemented; and
3. Authorization upon the issuance of a Certificate of RMP
Implementation for review authority employees and the department to conduct
onsite inspections of the management unit to ensure the continued
implementation of, maintenance of, and compliance with the RMP in accordance
with 4VAC50-70-90.
C. If based on onsite verification and a review of
referenced plans by the local soil and water conservation district where the
district is the review authority the RMP is determined to be adequate and fully
implemented in accordance with subsection A of this section, the soil and water
conservation district board shall affirm such adequacy and implementation and
submit the required documentation to the department for action. Upon receiving
such documentation supporting that the plan is adequate and has been fully
implemented, the department shall issue a Certificate of RMP Implementation.
D. Where the department is the review authority, the department
shall determine adequacy and full implementation of the RMP in accordance with
subsection A of this section through onsite verification and a review of
referenced plans. If based on the onsite verification and a review of
referenced plans, the RMP is determined to be adequate and fully implemented,
the department shall affirm such implementation by issuing a Certificate of RMP
Implementation.
E. If the resource management plan is not adequate or has
not been fully implemented, the review authority shall provide the owner or
operator with written documentation that specifies the deficiencies of the RMP
within 30 days following the field review of the RMP. The owner or operator may
correct the named deficiencies and request verification of RMP adequacy or
implementation at such time as the shortcomings have been addressed.
F. A Certificate of RMP Implementation shall be valid for
a period of nine years.
G. An owner or operator who holds a Certificate of RMP
Implementation that has not expired shall not be required to revise the RMP
when the issuance of a new or modified watershed implementation plan for the
Chesapeake Bay TMDL or a new or modified local approved TMDL impacts any
portion of the management unit during the lifespan of the Certificate of RMP
Implementation so long as the owner or operator is deemed to be fully
implementing the RMP.
H. Upon the expiration of the Certificate of RMP
Implementation, a new RMP may be prepared by a plan developer for the
management unit upon request by the owner or operator. The RMP must conform
with all existing TMDL implementation plans applicable to the management unit
to include the Chesapeake Bay and any local approved TMDL, which assign a load
to agricultural uses and impact any portion of the management unit. The plan
developer shall ensure the new RMP complies with requirements set forth in
4VAC50-70-40.
I. The department shall maintain a public registry on the
agency's website of all current Certificates of RMP Implementation in
accordance with the provisions of subsection E of § 10.1-104.7 of the Code of
Virginia.
4VAC50-70-90. Inspections.
A. Each management unit that has been issued a Certificate
of RMP Implementation shall be subject to periodic onsite inspections to be
performed by the review authority. In addition the department, when it is not
the review authority but deems it appropriate, can conduct inspections to
ensure the continued implementation of, maintenance of, and compliance with the
RMP.
B. Onsite inspections shall occur no less than once every
three years but not more than annually on lands where an active Certificate of
RMP Implementation has been issued provided that no deficiencies have been
noted pursuant to this section that may require more frequent inspections or
re-inspections.
C. As part of an inspection, an owner or operator shall
provide any documents needed to verify the implementation of the RMP, any
documents pertaining to revision of the RMP when applicable, and any other
referenced plans as applicable.
D. Upon the completion of the inspection, an inspection
report shall be completed in a format provided by the department to document
the implementation of the RMP on the management unit. A copy of the inspection
report shall be provided to the department within 10 business days following
the date of inspection with a copy to the owner or operator when inspections
are performed by a soil and water conservation district. The inspection report
shall include:
1. Confirmation of all BMPs implemented, operated, and
maintained with a notation of changes in the operation of any BMPs included in
the RMP; and
2. Any identified deficiencies that may include any
components of the RMP that have not been satisfactorily implemented, components
that need to be renewed, and any changes to the management unit that may need
to be addressed through revision of the RMP.
E. If deficiencies are noted based upon the inspection,
the department shall proceed pursuant to 4VAC50-70-100.
F. All inspections or re-inspections conducted in
accordance with this chapter shall occur only after 48 hours of prior notice to
the owner or operator unless otherwise authorized by the owner or operator.
4VAC50-70-100. Compliance.
A. If deficiencies are identified during an inspection
conducted in accordance with 4VAC50-70-90, following review of such
deficiencies the department shall provide a written notice to the owner or
operator within 30 days of receipt of the inspection report. The written notice
shall include a list of the noted deficiencies that need to be addressed to
meet full implementation of the RMP.
B. Within 90 days of the written notice being issued to
the owner or operator, a corrective action agreement in a format provided by
the department, that may include revisions to the RMP, shall be developed by
the RMP developer in consultation with the owner or operator, signed by the
owner or operator, and submitted to the department for consideration. The
corrective action agreement shall include an implementation schedule to correct
the deficiencies found during the inspection. The department shall review the
corrective action agreement including any revisions to the RMP within 30 days
following receipt. The department shall consult with the review authority. If
the corrective action agreement, including any revisions to the RMP, is
determined by the department to be reasonable and satisfactory, the department
shall convey such determination to the owner or operator in writing within 30
days following receipt.
C. If the department determines that the corrective action
agreement, including any revisions to the RMP, does not satisfactorily address
deficiencies documented from an inspection conducted pursuant to 4VAC50-70-90,
the department shall document such deficiencies in writing to the owner or
operator within 30 days following receipt of the corrective action agreement. A
revised corrective action agreement may be submitted once the noted
deficiencies have been satisfactorily addressed.
D. If the department and the owner or operator are unable
to concur on a final corrective action agreement within 90 days of the
submission of the initial corrective action agreement to the department or such
additional time that is acceptable to the department, the department shall
revoke the owner's or operator's Certificate of RMP Implementation after an
informal fact finding proceeding held in accordance with § 2.2-4019 of the Code
of Virginia.
E. If it is determined by the department through a
re-inspection that an owner or operator has failed to fully implement the
agreed upon corrective action agreement, the department shall revoke the
owner's or operator's Certificate of RMP Implementation for the corrective
action agreement. Such re-inspection shall be performed by the department or by
the review authority when directed by the department.
F. At any time, the owner or operator may provide written
notice to the department requesting that the Certificate of RMP Implementation
be revoked.
4VAC50-70-110. Appeals.
A. An owner or operator that has been aggrieved by any
action of a soil and water conservation district shall have a right to appeal
to the department within 30 days of issuance of the district's decision. The
department shall make its decision on an appeal in accordance with the
Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). In
making its decision on an appeal, the department will hold an informal fact
finding proceeding in accordance with § 2.2-4019 of the Code of Virginia.
B. Any party, including but not limited to a district, an
owner or operator, or a RMP developer aggrieved by and claiming the
unlawfulness of a case decision of the department shall have a right to appeal
to the board in accordance with the Administrative Process Act (§ 2.2-4000
et seq. of the Code of Virginia). In making its decision on an appeal, the
board will hold an informal fact finding proceeding in accordance with § 2.2-4019
of the Code of Virginia.
C. Any party, including but not limited to a district, an
owner or operator, or a RMP developer, aggrieved by and claiming the unlawfulness
of a case decision of the board shall have a right to appeal to a court of
competent jurisdiction in accordance with the Administrative Process Act (§
2.2-4000 et seq. of the Code of Virginia).
D. Revocation of a Certificate of RMP Implementation
issued pursuant to 4VAC50-70-80 shall be suspended pending any appeals.
4VAC50-70-120. Reporting.
A. BMP data collection and reporting shall occur:
1. When a RMP assessment is conducted by a soil and water
conservation district or when data is made available to a district by an owner
or operator following an assessment performed by a RMP developer or individual
authorized by them to perform an assessment pursuant to 4VAC50-70-50;
2. Upon changes or revisions to a RMP pursuant to
4VAC50-70-60;
3. Upon verification of the full implementation of the RMP
as required by 4VAC50-70-80;
4. When inspections are conducted pursuant to 4VAC50-70-90;
and
5. Upon any other opportunities when verification of BMP
implementation becomes available.
B. BMP data collected in accordance with subsection A of
this section shall be entered in the Virginia Agricultural BMP Tracking Program
or any subsequent automated tracking systems made available to soil and water
conservation districts by the department.
C. BMP data entry by soil and water conservation districts
shall occur throughout the year; however, the annual reporting period shall
begin July 1 of one year and end June 30 of the following year. Districts shall
ensure all collected data is fully entered in the data collection system by
July 31 following the close of the annual reporting period.
D. Any personal or proprietary information collected
pursuant to Article 1.1 (§ 10.1-104.7 et seq.) of Title 10.1 of the Code
of Virginia shall be exempt from the Virginia Freedom of Information Act
(§ 2.2-3700 et seq. of the Code of Virginia) and fully comply with all
provisions of § 10.1-104.7 of the Code of Virginia.
E. The department, in accordance with subsection D of this
section, shall make use of RMP BMP data for purposes that include progress
reporting for the Chesapeake Bay TMDL watershed implementation plan; other
local approved TMDLs; inclusion in the report required by § 2.2-220 of the
Code of Virginia; and other reports required of the department or generated by
the agency.
4VAC50-70-130. Review of duties performed by soil and water
conservation districts.
A. The department shall periodically conduct a
comprehensive review of the RMP duties performed by each soil and water
conservation district to evaluate whether requirements set forth by this
chapter have been satisfactorily fulfilled. The department shall develop a
schedule for conducting periodic reviews and evaluations. Each district shall
receive a comprehensive review at least once every five years; however, the department
may impose more frequent, partial, or comprehensive reviews with cause. Such
reviews where applicable shall be coordinated with those being implemented by
agency staff for other purposes that may include annual spot checks of BMPs
implemented by districts through the Virginia Agricultural BMP Cost Share
Program.
B. If a review conducted by the department indicates that
the soil and water conservation district has not administered, enforced where
authorized to do so, or conducted its duties in a manner that satisfies the
requirements set forth within this chapter, the department shall document such
deficiencies and convey the needed corrective actions in writing to the soil
and water conservation district's board of directors within 30 days following the
review.
C. When the department determines:
1. The deficiencies are due to the district's failure to
satisfactorily perform the required duties with the resources at its disposal,
the department shall provide close oversight, guidance, and training as appropriate
to enable the district to fully perform the duties required by this chapter. If
after such actions there remains one or more deficiencies that cannot be
resolved to the satisfaction of the department, the department may delay or
withhold funding under its authority and control from the district that is not
satisfactorily performing its RMP duties. Such duties may be assigned to
another soil and water conservation district. Funds withheld from the district
with deficiencies may be directed to the district that is performing the
additional RMP duties.
2. The deficiencies are due to a work demand generated by
the duties required by this chapter that exceed the district's existing
resources, the department shall endeavor to assist the district in the performance
of its duties and in finding a solution to the shortage of resources.
4VAC50-70-140. RMP developer qualifications and
certification.
A. An individual shall be qualified to serve as an RMP
developer if the individual:
1. Is certified as a conservation planner by the NRCS and
is certified as a nutrient management planner by the department; or
2. Is certified as a nutrient management planner by the
department and demonstrates academic and applied proficiencies with and an
understanding of all of the following:
a. Agricultural conservation planning;
b. State and federal environmental laws and regulations and
local ordinances;
c. State and federal laws and regulations that address the
identification and preservation of historic resources;
d. Standards and specifications for agricultural
conservation practices utilized in Virginia and the ability to plan and
implement such practices;
e. Soil erosion processes and skill in applying approved
erosion prediction technologies including the applicable current United States
Department of Agriculture Revised Universal Soil Loss Equation and the Wind
Erosion Equation;
f. The fundamentals of water quality and nonpoint source
pollution, pest management, and fire management;
g. Site vulnerability assessment tools; and
h. Other proficiencies and understandings identified by the
department in consultation with the board.
B. In a format established by the department, such
individual shall submit documentation to the department for verification that
the requirements of subsection A of this section have been met.
1. Upon receipt, the department shall review the
documentation and issue its notification within 60 days. During its review the
department shall determine:
a. If all required documentation is complete. If incomplete
the applicant shall be notified.
b. If all requirements have been satisfied. If deficiencies
exist the applicant shall be notified.
2. Applicants with deficiencies may submit additional
documentation in support of their request to be certified. The department shall
review the documentation provided within 30 days to determine its sufficiency.
3. When all requirements of this subsection have been met,
the department shall issue to the applicant a Resource Management Plan
Developer Certificate.
C. In the event that an individual's proficiency skills or
the quality of technical work no longer meet the criteria for RMP developer
certification, the individual's certification may be revoked by the department
following a seven-day advance notification of the pending action and the
holding of an informal fact finding proceeding held in accordance with
§ 2.2-4019 of the Code of Virginia. The department shall consider any
action by NRCS to decertify a certified conservation planner. An RMP developer
may appeal a decision of the department to the board in accordance with
4VAC50-70-110.
D. When an individual's RMP developer certificate has been
revoked by the department, the basis for the revocation will be provided to the
individual by the department. The individual will be informed of the steps
necessary to address the deficiencies that led to the revocation and to
re-establish certification.
E. Revocation of an individual’s RMP developer certificate
shall not result in revocation of a Certificate of RMP Implementation of which
the RMP developer was party to.
F. The department shall maintain a public registry on the
agency's website of all individuals issued a RMP developer certificate and
shall note any subsequent revocations or other changes to the status of RMP
developers.
4VAC50-70-150. Advancing the adoption of RMPs.
The department and districts shall encourage and promote
the adoption of RMPs among agricultural communities across the Commonwealth.
VA.R. Doc. No. R12-3140; Filed June 25, 2012, 5:10 p.m.
w –––––––––––––––––– w
TITLE 9. ENVIRONMENT
STATE AIR POLLUTION CONTROL BOARD
Final Regulation
REGISTRAR'S NOTICE:
The following regulatory action is exempt from the Administrative Process Act
in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which
excludes regulations that are necessary to meet the requirements of federal law
or regulations provided such regulations do not differ materially from those
required by federal law or regulation. The State Air Pollution Control Board
will receive, consider, and respond to petitions by any interested person at
any time with respect to reconsideration or revision.
Titles of Regulations: 9VAC5-20. General Provisions
(Rev. B12) (amending 9VAC5-20-21).
9VAC5-40. Existing Stationary Sources (Rev. B12) (adding 9VAC5-40-8200 through 9VAC5-40-8370).
Statutory Authority: § 10.1-1308 of the Code of
Virginia; federal Clean Air Act (§§ 110, 111, 123, 129, 171, 172, and
182); 40 CFR Parts 51 and 60.
Effective Date: August 15, 2012.
Agency Contact: Karen G. Sabasteanski,
Department of Environmental Quality, 629 East Main Street, P.O. Box 1105,
Richmond, VA 23218, telephone (804) 698-4426, FAX (804) 698-4510, or email karen.sabasteanski@deq.virginia.gov.
Summary:
The federal Clean Air Act requires the U.S. Environmental
Protection Agency (EPA) to establish procedures for states to submit plans to
control facilities that emit designated pollutants. These procedures are
established in Subpart B of 40 CFR Part 60. Section 129 of the Act requires
that EPA establish performance standards and other requirements pursuant to §§ 111
and 129 for each category of solid waste incineration units. Such standards
include emissions limitations and other requirements applicable to new units
and guidelines and other requirements applicable to existing units. It also
requires states to submit plans for these sources in a process similar to that
in § 111(d). Subpart B provides that EPA will publish guideline
documents for development of state emission standards after promulgation of any
standard of performance for designated pollutants. The emission guidelines
(EGs) reflect the degree of emission reduction attainable with the best
adequately demonstrated systems of emission reduction, considering costs,
applied to existing facilities. EPA established EGs for sewage sludge
incinerators in the Federal Register of March 21, 2011 (76 FR
15372). In order to implement the EGs, it is necessary for Virginia to develop
and adopt a state regulation containing those limits.
9VAC5-20-21. Documents incorporated by reference.
A. The Administrative Process Act and Virginia Register Act
provide that state regulations may incorporate documents by reference.
Throughout these regulations, documents of the types specified below have been
incorporated by reference.
1. United States Code.
2. Code of Virginia.
3. Code of Federal Regulations.
4. Federal Register.
5. Technical and scientific reference documents.
Additional information on key federal regulations and nonstatutory documents incorporated by reference and their
availability may be found in subsection E of this section.
B. Any reference in these regulations to any provision of the
Code of Federal Regulations (CFR) shall be considered as the adoption by
reference of that provision. The specific version of the provision adopted by
reference shall be that contained in the CFR (2010) (2012) in
effect July 1, 2010 2012. In making reference to the Code of
Federal Regulations, 40 CFR Part 35 means Part 35 of Title 40 of the Code of
Federal Regulations; 40 CFR 35.20 means § 35.20 in Part 35 of Title 40 of the
Code of Federal Regulations.
C. Failure to include in this section any document referenced
in the regulations shall not invalidate the applicability of the referenced
document.
D. Copies of materials incorporated by reference in this
section may be examined by the public at the central office of the Department
of Environmental Quality, Eighth Floor, 629 East Main Street, Richmond,
Virginia, between 8:30 a.m. and 4:30 p.m. of each business day.
E. Information on federal regulations and nonstatutory
documents incorporated by reference and their availability may be found below
in this subsection.
1. Code of Federal Regulations.
a. The provisions specified below from the Code of Federal
Regulations (CFR) are incorporated herein by reference.
(1) 40 CFR Part 50 -- National Primary and Secondary Ambient
Air Quality Standards.
(a) Appendix A-1 -- Reference Measurement Principle and
Calibration Procedure for the Measurement of Sulfur Dioxide in the Atmosphere
(Ultraviolet Fluorescence Method).
(b) Appendix A-2 -- Reference Method for the Determination of
Sulfur Dioxide in the Atmosphere (Pararosaniline
Method).
(c) Appendix B -- Reference Method for the Determination of
Suspended Particulate Matter in the Atmosphere (High-Volume Method).
(d) Appendix C -- Measurement Principle and Calibration
Procedure for the Continuous Measurement of Carbon Monoxide in the Atmosphere
(Non-Dispersive Infrared Photometry).
(e) Appendix D -- Measurement Principle and Calibration
Procedure for the Measurement of Ozone in the Atmosphere.
(f) Appendix E -- Reserved.
(g) Appendix F -- Measurement Principle and Calibration
Procedure for the Measurement of Nitrogen Dioxide in the Atmosphere (Gas Phase Chemiluminescence).
(h) Appendix G -- Reference Method for the Determination of
Lead in Suspended Particulate Matter Collected from Ambient Air.
(i) Appendix H -- Interpretation of
the National Ambient Air Quality Standards for Ozone.
(j) Appendix I -- Interpretation of the 8-Hour Primary and
Secondary National Ambient Air Quality Standards for Ozone.
(k) Appendix J -- Reference Method for the Determination of
Particulate Matter as PM10 in the Atmosphere.
(l) Appendix K -- Interpretation of the National Ambient Air
Quality Standards for Particulate Matter.
(m) Appendix L -- Reference Method for the Determination of
Fine Particulate Matter as PM2.5 in the Atmosphere.
(n) Appendix M -- Reserved.
(o) Appendix N -- Interpretation of the National Ambient Air
Quality Standards for PM2.5.
(p) Appendix O -- Reference Method for the Determination of
Coarse Particulate Matter as PM in the Atmosphere.
(q) Appendix P -- Interpretation of the Primary and Secondary
National Ambient Air Quality Standards for Ozone.
(r) Appendix Q -- Reference Method for the Determination of
Lead in Suspended Particulate Matter as PM10 Collected from Ambient
Air.
(s) Appendix R -- Interpretation of the National Ambient Air
Quality Standards for Lead.
(t) Appendix S -- Interpretation of the Primary National
Ambient Air Quality Standards for Oxides of Nitrogen (Nitrogen Dioxide).
(u) Appendix T -- Interpretation of the Primary National
Ambient Air Quality Standards for Oxides of Sulfur (Sulfur Dioxide).
(2) 40 CFR Part 51 -- Requirements for Preparation, Adoption,
and Submittal of Implementation Plans.
(a) Appendix M -- Recommended Test Methods for State
Implementation Plans.
(b) Appendix S -- Emission Offset Interpretive Ruling.
(c) Appendix W -- Guideline on Air Quality Models (Revised).
(d) Appendix Y -- Guidelines for BART Determinations Under the
Regional Haze Rule.
(3) 40 CFR Part 55 -- Outer Continental Shelf Air Regulations.
(4) 40 CFR Part 58 -- Ambient Air Quality Surveillance.
Appendix A -- Quality Assurance Requirements for SLAMS, SPMs
and PSD Air Monitoring.
(5) 40 CFR Part 59 -- National Volatile Organic Compound
Emission Standards for Consumer and Commercial Products.
(a) Subpart C -- National Volatile Organic Compound Emission
Standards for Consumer Products.
(b) Subpart D -- National Volatile Organic Compound Emission
Standards for Architectural Coatings, Appendix A -- Determination of Volatile
Matter Content of Methacrylate Multicomponent Coatings Used as Traffic Marking
Coatings.
(6) 40 CFR Part 60 -- Standards of Performance for New
Stationary Sources.
The specific provisions of 40 CFR Part 60 incorporated by
reference are found in Article 5 (9VAC5-50-400 et seq.) of Part II of 9VAC5-50
(New and Modified Sources).
(7) 40 CFR Part 61 -- National Emission Standards for
Hazardous Air Pollutants.
The specific provisions of 40 CFR Part 61 incorporated by
reference are found in Article 1 (9VAC5-60-60 et seq.) of Part II of 9VAC5-60
(Hazardous Air Pollutant Sources).
(8) 40 CFR Part 63 -- National Emission Standards for
Hazardous Air Pollutants for Source Categories.
The specific provisions of 40 CFR Part 63 incorporated by
reference are found in Article 2 (9VAC5-60-90 et seq.) of Part II of 9VAC5-60
(Hazardous Air Pollutant Sources).
(9) 40 CFR Part 64 -- Compliance Assurance Monitoring.
(10) 40 CFR Part 72 -- Permits Regulation.
(11) 40 CFR Part 73 -- Sulfur Dioxide Allowance System.
(12) 40 CFR Part 74 -- Sulfur Dioxide Opt-Ins.
(13) 40 CFR Part 75 -- Continuous Emission Monitoring.
(14) 40 CFR Part 76 -- Acid Rain Nitrogen Oxides Emission
Reduction Program.
(15) 40 CFR Part 77 -- Excess Emissions.
(16) 40 CFR Part 78 -- Appeal Procedures for Acid Rain
Program.
(17) 40 CFR Part 152 Subpart I -- Classification of
Pesticides.
(18) 49 CFR Part 172 -- Hazardous Materials Table. Special
Provisions, Hazardous Materials Communications, Emergency Response Information,
and Training Requirements, Subpart E, Labeling.
(19) 29 CFR Part 1926 Subpart F -- Fire Protection and
Prevention.
b. Copies may be obtained from: Superintendent of Documents,
P.O. Box 371954, Pittsburgh, Pennsylvania 15250-7954; phone (202) 783-3238.
2. U.S. Environmental Protection Agency.
a. The following documents from the U.S. Environmental
Protection Agency are incorporated herein by reference:
(1) Reich Test, Atmospheric Emissions from Sulfuric Acid
Manufacturing Processes, Public Health Service Publication No. PB82250721,
1980.
(2) Compilation of Air Pollutant Emission Factors (AP-42).
Volume I: Stationary and Area Sources, stock number 055-000-00500-1, 1995;
Supplement A, stock number 055-000-00551-6, 1996; Supplement B, stock number
055-000-00565, 1997; Supplement C, stock number 055-000-00587-7, 1997;
Supplement D, 1998; Supplement E, 1999.
(3) "Guidelines for Determining Capture Efficiency"
(GD-35), Emissions Monitoring and Analysis Division, Office of Air Quality
Planning and Standards, January 9, 1995.
b. Copies of the document identified in subdivision E 2 a (1)
of this subdivision, and Volume I and Supplements A through C of the document
identified in subdivision E 2 a (2) of this subdivision, may be obtained from:
U.S. Department of Commerce, National Technical Information Service, 5285 Port
Royal Road, Springfield, Virginia 22161; phone 1-800-553-6847. Copies of
Supplements D and E of the document identified in subdivision E 2 a (2) of this
subdivision may be obtained online from EPA's Technology Transfer Network at
http://www.epa.gov/ttn/index.html. Copies of the document identified in
subdivision E 2 a (3) of this subdivision are only available online from EPA's
Technology Transfer Network at http://www.epa.gov/ttn/emc/guidlnd.html.
3. U.S. government.
a. The following document from the U.S. government is
incorporated herein by reference: Standard Industrial Classification Manual,
1987 (U.S. Government Printing Office stock number 041-001-00-314-2).
b. Copies may be obtained from: Superintendent of Documents,
P.O. Box 371954, Pittsburgh, Pennsylvania 15250-7954; phone (202) 512-1800.
4. American Society for Testing and Materials (ASTM).
a. The documents specified below from the American Society for
Testing and Materials are incorporated herein by reference.
(1) D323-99a, "Standard Test Method for Vapor Pressure of
Petroleum Products (Reid Method)."
(2) D97-96a, "Standard Test Method for Pour Point of
Petroleum Products."
(3) D129-00, "Standard Test Method for Sulfur in
Petroleum Products (General Bomb Method)."
(4) D388-99, "Standard Classification of Coals by
Rank."
(5) D396-98, "Standard Specification for Fuel Oils."
(6) D975-98b, "Standard Specification for Diesel Fuel
Oils."
(7) D1072-90(1999), "Standard Test Method for Total
Sulfur in Fuel Gases."
(8) D1265-97, "Standard Practice for Sampling Liquefied
Petroleum (LP) Gases (Manual Method)."
(9) D2622-98, "Standard Test Method for Sulfur in
Petroleum Products by Wavelength Dispersive X-Ray Fluorescence
Spectrometry."
(10) D4057-95(2000), "Standard Practice for Manual Sampling
of Petroleum and Petroleum Products."
(11) D4294-98, "Standard Test Method for Sulfur in
Petroleum and Petroleum Products by Energy-Dispersive X-Ray Fluorescence
Spectroscopy."
(12) D523-89, "Standard Test Method for Specular
Gloss" (1999).
(13) D1613-02, "Standard Test Method for Acidity in
Volatile Solvents and Chemical Intermediates Used in Paint, Varnish, Lacquer
and Related Products" (2002).
(14) D1640-95, "Standard Test Methods for Drying, Curing,
or Film Formation of Organic Coatings at Room Temperature" (1999).
(15) E119-00a, "Standard Test Methods for Fire Tests of
Building Construction Materials" (2000).
(16) E84-01, "Standard Test Method for Surface Burning
Characteristics of Building Construction Materials" (2001).
(17) D4214-98, "Standard Test Methods for Evaluating the
Degree of Chalking of Exterior Paint Films" (1998).
(18) D86-04b, "Standard Test Method for Distillation of
Petroleum Products at Atmospheric Pressure" (2004).
(19) D4359-90, "Standard Test Method for Determining
Whether a Material is a Liquid or a Solid" (reapproved 2000).
(20) E260-96, "Standard Practice for Packed Column Gas
Chromatography" (reapproved 2001).
(21) D3912-95, "Standard Test Method for Chemical
Resistance of Coatings Used in Light-Water Nuclear Power Plants" (reapproved
2001).
(22) D4082-02, "Standard Test Method for Effects of Gamma
Radiation on Coatings for Use in Light-Water Nuclear Power Plants."
(23) F852-99, "Standard Specification for Portable
Gasoline Containers for Consumer Use" (reapproved 2006).
(24) F976-02, "Standard Specification for Portable Kerosine and Diesel Containers for Consumer Use."
(25) D4457-02, "Standard Test Method for Determination of
Dichloromethane and 1,1,1-Trichloroethane in Paints and Coatings by Direct
Injection into a Gas Chromatograph" (reapproved 2008).
(26) D3792-05, "Standard Test Method for Water Content of
Coatings by Direct Injection Into a Gas Chromatograph."
(27) D2879-97, "Standard Test Method for Vapor
Pressure-Temperature Relationship and Initial Decomposition Temperature of
Liquids by Isoteniscope" (reapproved 2007).
b. Copies may be obtained from: American Society for Testing
Materials, 100 Barr Harbor Drive, West Conshohocken, Pennsylvania 19428-2959;
phone (610) 832-9585.
5. American Petroleum Institute (API).
a. The following document from the American Petroleum
Institute is incorporated herein by reference: Evaporative Loss from Floating
Roof Tanks, API MPMS Chapter 19, April 1, 1997.
b. Copies may be obtained from: American Petroleum Institute,
1220 L Street, Northwest, Washington, D.C. 20005; phone (202) 682-8000.
6. American Conference of Governmental Industrial Hygienists
(ACGIH).
a. The following document from the ACGIH is incorporated
herein by reference: 1991-1992 Threshold Limit Values for Chemical Substances
and Physical Agents and Biological Exposure Indices (ACGIH Handbook).
b. Copies may be obtained from: ACGIH, 1330 Kemper Meadow
Drive, Suite 600, Cincinnati, Ohio 45240; phone (513) 742-2020.
7. National Fire Prevention Association (NFPA).
a. The documents specified below from the National Fire
Prevention Association are incorporated herein by reference.
(1) NFPA 385, Standard for Tank Vehicles for Flammable and
Combustible Liquids, 2000 Edition.
(2) NFPA 30, Flammable and Combustible Liquids Code, 2000
Edition.
(3) NFPA 30A, Code for Motor Fuel Dispensing Facilities and
Repair Garages, 2000 Edition.
b. Copies may be obtained from the National Fire Prevention
Association, One Batterymarch Park, P.O. Box 9101,
Quincy, Massachusetts 02269-9101; phone (617) 770-3000.
8. American Society of Mechanical Engineers (ASME).
a. The documents specified below from the American Society of
Mechanical Engineers are incorporated herein by reference.
(1) ASME Power Test Codes: Test Code for Steam Generating
Units, Power Test Code 4.1-1964 (R1991).
(2) ASME Interim Supplement 19.5 on Instruments and Apparatus:
Application, Part II of Fluid Meters, 6th edition (1971).
(3) Standard for the Qualification and Certification of
Resource Recovery Facility Operators, ASME QRO-1-1994.
b. Copies may be obtained from the American Society of
Mechanical Engineers, Three Park Avenue, New York, New York 10016; phone (800)
843-2763.
9. American Hospital Association (AHA).
a. The following document from the American Hospital Association
is incorporated herein by reference: An Ounce of Prevention: Waste Reduction
Strategies for Health Care Facilities, AHA Catalog no. W5-057007, 1993.
b. Copies may be obtained from: American Hospital Association,
One North Franklin, Chicago, IL 60606; phone (800) 242-2626.
10. Bay Area Air Quality Management District (BAAQMD).
a. The following documents from the Bay Area Air Quality
Management District are incorporated herein by reference:
(1) Method 41, "Determination of Volatile Organic
Compounds in Solvent-Based Coatings and Related Materials Containing Parachlorobenzotrifluoride" (December 20, 1995).
(2) Method 43, "Determination of Volatile Methylsiloxanes in Solvent-Based Coatings, Inks, and
Related Materials" (November 6, 1996).
b. Copies may be obtained from: Bay Area Air Quality
Management District, 939 Ellis Street, San Francisco, CA 94109, phone (415)
771-6000.
11. South Coast Air Quality Management District (SCAQMD).
a. The following documents from the South Coast Air Quality
Management District are incorporated herein by reference:
(1) Method 303-91, "Determination of Exempt
Compounds," in Manual SSMLLABM, "Laboratory Methods of Analysis for
Enforcement Samples" (1996).
(2) Method 318-95, "Determination of Weight Percent
Elemental Metal in Coatings by X-Ray Diffraction," in Manual SSMLLABM,
"Laboratory Methods of Analysis for Enforcement Samples" (1996).
(3) Rule 1174 Ignition Method Compliance Certification
Protocol (February 28, 1991).
(4) Method 304-91, "Determination of Volatile Organic Compounds
(VOC) in Various Materials," in Manual SSMLLABM, "Laboratory Methods
of Analysis for Enforcement Samples" (1996).
(5) Method 316A-92, "Determination of Volatile Organic
Compounds (VOC) in Materials Used for Pipes and Fittings" in Manual
SSMLLABM, "Laboratory Methods of Analysis for Enforcement Samples"
(1996).
(6) "General Test Method for Determining Solvent Losses
from Spray Gun Cleaning Systems," October 3, 1989.
b. Copies may be obtained from: South Coast Air Quality
Management District, 21865 E. Copley Drive, Diamond Bar, CA 91765, phone (909)
396-2000.
12. California Air Resources Board (CARB).
a. The following documents from the California Air Resources
Board are incorporated herein by reference:
(1) Test Method 510, "Automatic Shut-Off Test Procedure
for Spill-Proof Systems and Spill-Proof Spouts" (July 6, 2000).
(2) Test Method 511, "Automatic Closure Test Procedure
for Spill-Proof Systems and Spill-Proof Spouts" (July 6, 2000).
(3) Method 100, "Procedures for Continuous Gaseous
Emission Stack Sampling" (July 28, 1997).
(4) Test Method 513, "Determination of Permeation Rate
for Spill-Proof Systems" (July 6, 2000).
(5) Method 310, "Determination of Volatile Organic
Compounds (VOC) in Consumer Products and Reactive Organic Compounds in Aerosol
Coating Products (Including Appendices A and B)" (May 5, 2005).
(6) California Code of Regulations, Title 17, Division 3,
Chapter 1, Subchapter 8.5, Article 1, § 94503.5 (2003).
(7) California Code of Regulations, Title 17, Division 3,
Chapter 1, Subchapter 8.5, Article 2, §§ 94509 and 94511 (2003).
(8) California Code of Regulations, Title 17, Division 3,
Chapter 1, Subchapter 8.5, Article 4, §§ 94540-94555 (2003).
(9) "Certification Procedure 501 for Portable Fuel
Containers and Spill-Proof Spouts, CP-501" (July 26, 2006).
(10) "Test Procedure for Determining Integrity of
Spill-Proof Spouts and Spill-Proof Systems, TP-501" (July 26, 2006).
(11) "Test Procedure for Determining Diurnal Emissions
from Portable Fuel Containers, TP-502" (July 26, 2006).
b. Copies may be obtained from: California Air Resources
Board, P.O. Box 2815, Sacramento, CA 95812, phone (906) 322-3260 or (906)
322-2990.
13. American Architectural Manufacturers Association.
a. The following documents from the American Architectural
Manufacturers Association are incorporated herein by reference:
(1) Voluntary Specification 2604-02, "Performance
Requirements and Test Procedures for High Performance Organic Coatings on
Aluminum Extrusions and Panels" (2002).
(2) Voluntary Specification 2605-02, "Performance
Requirements and Test Procedures for Superior Performing Organic Coatings on
Aluminum Extrusions and Panels" (2002).
b. Copies may be obtained from: American Architectural
Manufacturers Association, 1827 Walden Office Square, Suite 550, Schaumburg, IL
60173, phone (847) 303-5664.
14. American Furniture Manufacturers Association.
a. The following document from the American Furniture
Manufacturers Association is incorporated herein by reference: Joint Industry
Fabrics Standards Committee, Woven and Knit Residential Upholstery Fabric
Standards and Guidelines (January 2001).
b. Copies may be obtained from: American Furniture
Manufacturers Association, P.O. Box HP-7, High Point, NC 27261; phone (336)
884-5000.
Article 55
Emission Standards for Sewage Sludge Incineration Units (Rule 4-55)
9VAC5-40-8200. Applicability and designation of affected
facility.
A. The affected facilities to which the provisions of this
article apply are sewage sludge incineration (SSI) units that meet all of the
following criteria:
1. SSI units that commenced construction on or before
October 14, 2010.
2. SSI units that meet the definition of a SSI unit as
defined in 9VAC5-40-8210.
3. SSI units not exempt under subsection D of this section.
B. The provisions of this article apply throughout the
Commonwealth of Virginia.
C. The following provisions govern changes to SSI units.
1. If the owner of a SSI unit makes changes that meet the
definition of modification after September 21, 2011, the SSI unit becomes
subject to Subpart LLLL of 40 CFR Part 60 and the provisions of this article no
longer apply to that unit.
2. If the owner of a SSI unit makes physical or operational
changes to a SSI unit for which construction commenced on or before September
21, 2011, primarily to comply with the provisions of this article, Subpart LLLL
of 40 CFR Part 60 does not apply to that unit. Such changes do not qualify as
modifications under Subpart LLLL of 40 CFR Part 60.
D. Exempt from the provisions of this article are
combustion units that incinerate sewage sludge and are not located at a
wastewater treatment facility designed to treat domestic sewage sludge. These
units may be subject to 40 CFR Part 60 (e.g., Subpart CCCC of 40 CFR Part 60).
The owner of such a combustion unit shall notify the board of an exemption
claim under this subsection.
E. The provisions of 40 CFR Part 60 (other than Subpart
MMMM of 40 CFR Part 60) cited in this article are applicable only to the extent
that they are incorporated by reference in Article 5 (9VAC5-50-400 et seq.) of
Part II of 9VAC5-50 (New and Modified Stationary Sources).
F. The provisions of Subpart MMMM (Emission Guidelines and
Compliance Times for Existing Sewage Sludge Incineration Units) of 40 CFR Part
60 cited in this article are applicable only to the extent that they are
incorporated by reference in 9VAC5-40-8370.
9VAC5-40-8210. Definitions.
A. For the purpose of applying this article in the context
of the Regulations for the Control and Abatement of Air Pollution and related
uses, the words or terms shall have the meanings given them in subsection C of
this section.
B. As used in this article, all terms not defined herein
shall have the meanings given them in 9VAC5-10 (General Definitions), unless
otherwise required by context.
C. Terms shall have the meanings given them in 40 CFR
60.5250, except for the following:
"Administrator" means the board.
"Performance test," as defined in 40 CFR 63.2,
means the collection of data resulting from the execution of a test method
(usually three emission test runs) used to demonstrate compliance with a
relevant emission standard as specified in the performance test section of the
relevant standard.
"Table 1" means 9VAC5-40-8280 A and B.
"You" means the owner of an affected SSI unit.
9VAC5-40-8220. Emission limits and emission standards.
A. No owner or other person shall cause or permit to be
discharged into the atmosphere from any SSI unit any emissions in excess of
that allowed under subsection B of this section.
B. The provisions of 40 CFR 60.5165 apply.
9VAC5-40-8230. Standard for visible emissions.
The provisions of Article 1 (9VAC5-40-60 et seq.) of
9VAC5-40 (Emission Standards for Visible Emissions and Fugitive Dust/Emissions,
Rule 4-1) apply, with the exception of 9VAC5-40-90 (Standard for fugitive
dust/emissions).
9VAC5-40-8240. Standard for fugitive dust/emissions.
A. The provisions of Article 1 (9VAC5-40-60 et seq.) of
9VAC5-40 (Emission Standards for Visible Emissions and Fugitive Dust/Emissions,
Rule 4-1) apply, with the exception of 9VAC5-40-80 (Standard for visible
emissions), 9VAC5-40-100 (Monitoring), 9VAC5-40-110 (Test methods and
procedures), and 9VAC5-40-120 (Waivers).
B. No owner or other person shall cause or permit to be
discharged into the atmosphere from any ash conveying system (including conveyor
transfer points) any visible emissions for more than 5.0% of hourly observation
period, measured at three, one-hour observation periods.
9VAC5-40-8250. Standard for odor.
The provisions of Article 2 (9VAC5-40-130 et seq.) of
9VAC5-40 (Emissions Standards for Odor, Rule 4-2) apply.
9VAC5-40-8260. Standard for toxic pollutants.
The provisions of Article 4 (9VAC5-60-200 et seq.) of
9VAC5-60 (Emissions Standards for Toxic Pollutants from Existing Sources, Rule
6-4) apply.
9VAC5-40-8270. Operator training and certification.
A. The provisions of 40 CFR 60.5130, 40 CFR 60.5135, 40
CFR 60.5140, 40 CFR 60.5145, 40 CFR 60.5150, 40 CFR 60.5155, and 40 CFR 60.5160
apply.
B. The requirements of this section with regard to
scheduling and obtaining certification through a program approved by the board
may be met by obtaining a license from the Board for Waste Management Facility
Operators. All training and licensing shall be conducted in accordance with
Chapter 22.1 (§ 54.1-2209 et seq.) of Title 54.1 of the Code of Virginia and
with 18VAC155-20 (Waste Management Facility Operators Regulations).
C. No owner of an affected facility shall allow the
facility to be operated at any time unless a person is on duty who is
responsible for the proper operation of the facility and has a license from the
Board for Waste Management Facility operators in the correct classification. No
provision of this article shall relieve any owner from the responsibility to
comply in all respects with the requirements of Chapter 22.1 (§ 54.1-2209 et
seq.) of Title 54.1 of the Code of Virginia and with 18VAC155-20 (Waste
Management Facility Operators Regulations).
9VAC5-40-8280. Compliance schedule.
A. SSI units shall achieve final compliance or cease
operation as expeditiously as practicable but not later than March 21, 2016.
B. The owner shall submit a final control plan no later
than March 21, 2013.
C. The provisions of 40 CFR 60.5085, 40 CFR 60.5090, 40
CFR 60.5095, 40 CFR 60.5100, 40 CFR 60.5105, 40 CFR 60.5110, 40 CFR 60.5115, 40
CFR 60.5120, and 40 CFR 60.5125 apply.
9VAC5-40-8290. Operating requirements.
A. No owner or other person shall operate any SSI unit in
a manner that does not comply with the provisions of subsection B of this
section.
B. The provisions of 40 CFR 60.5170 and 40 CFR 60.5175
apply.
9VAC5-40-8300. Compliance.
A. With regard to the emissions standards in 9VAC5-40-8240
A, 9VAC5-40-8250, and 9VAC5-40-8260, the provisions of 9VAC5-40-20 (Compliance)
apply.
B. With regard to the emission limits in 9VAC5-40-8220,
9VAC5-40-8240 B, and 9VAC5-40-8290, the following provisions apply:
1. 9VAC5-40-20 B, C, D, and E;
2. To the extent specified in the federal regulations cited
in subdivision 3 of this subsection, 40 CFR 60.7, 40 CFR 60.8, 40 CFR 60.11,
and 40 CFR 60.13; and
3. 40 CFR 60.5185, 40 CFR 60.5190, 40 CFR 60.5195, 40 CFR
60.5200, 40 CFR 60.5205, 40 CFR 60.5210, and 40 CFR 60.5215.
9VAC5-40-8310. Performance testing, monitoring, and
calibration requirements.
A. With regard to the emissions standards in 9VAC5-40-8240
A, 9VAC5-40-8250, and 9VAC5-40-8260, the provisions of 9VAC5-40-30 (Emission
testing) and 9VAC5-40-40 (Monitoring) apply.
B. With regard to the emission limits in 9VAC5-40-8220,
9VAC5-40-8240 B, and 9VAC5-40-8290, the following provisions apply:
1. 9VAC5-40-30 D and G;
2. 9VAC5-40-40 A and F;
3. 40 CFR 60.8(b) through (f), with the exception of
paragraph (a);
4. 40 CFR 60.13; and
5. 40 CFR 60.5220 and 40 CFR 60.5225.
9VAC5-40-8320. Recordkeeping and reporting.
A. With regard to the emissions standards in 9VAC5-40-8240
A, 9VAC5-40-8250, and 9VAC5-40-8260, the provisions of 9VAC5-40-50
(Notification, records and reporting) apply.
B. With regard to the emission limits in 9VAC5-40-8220,
9VAC5-40-8240 B, and 9VAC5-40-8290, the following provisions apply:
1. 9VAC5-40-50 F and H;
2. 40 CFR 60.7; and
3. 40 CFR 60.5230 and 40 CFR 60.5235.
9VAC5-40-8330. Registration.
The provisions of 9VAC5-20-160 (Registration) apply.
9VAC5-40-8340. Facility and control equipment maintenance or
malfunction.
A. With regard to the emissions standards in 9VAC5-40-8240
A, 9VAC5-40-8250, and 9VAC5-40-8260, the provisions of 9VAC5-20-180 (Facility
and control equipment maintenance or malfunction) apply.
B. With regard to the emission limits in 9VAC5-40-8220,
9VAC5-40-8240 B, and 9VAC5-40-8290, the following provisions apply:
1. 9VAC5-20-180 with the exception of subsections E, F, and
G; and
2. 40 CFR 60.5180 and 40 CFR 60.5181.
9VAC5-40-8350. Federal (Title V) operating permits.
A. The provisions of 40 CFR 60.5240 and 40 CFR 60.5245
apply.
B. Owners to which this section applies should contact the
appropriate regional office for guidance on applying for a federal (Title V)
operating permit.
9VAC5-40-8360. Other permits.
A permit may be required prior to beginning any of the
activities specified below if the provisions of 9VAC5-50 (New and Modified
Stationary Sources) and 9VAC5-80 (Permits for Stationary Sources) apply. Owners
contemplating such action should review those provisions and contact the
appropriate regional office for guidance on whether those provisions apply.
1. Construction of a facility.
2. Reconstruction (replacement of more than half) of a
facility.
3. Modification (any physical change to equipment) of a
facility.
4. Relocation of a facility.
5. Reactivation (re-startup) of a facility.
6. Operation of a facility.
9VAC5-40-8370. Documents incorporated by reference.
A. The United States Environmental Protection Agency (EPA)
regulations promulgated at Subpart MMMM (Emission Guidelines and Compliance
Times for Existing Sewage Sludge Incineration Units) of 40 CFR Part 60 and
designated in subsection B of this section are incorporated by reference into
this article. The 40 CFR section numbers appearing in subsection B of this
section identify the specific provisions incorporated by reference. The
specific version of the provisions incorporated by reference shall be that
contained in the CFR in effect as specified in 9VAC5-20-21 B.
B. The following documents from the United States
Environmental Protection Agency are incorporated herein by reference:
Model Rule, Increments of
Progress
40 CFR 60.5085, What are my requirements for meeting
increments of progress and achieving final compliance?
40 CFR 60.5090, When must I complete each increment of
progress?
40 CFR 60.5095, What must I include in the notifications of
achievement of increments of progress?
40 CFR 60.5100, When must I submit the notifications of
achievement of increments of progress?
40 CFR 60.5105, What if I do not meet an increment of
progress?
40 CFR 60.5110, How do I comply with the increment of
progress for submittal of a control plan?
40 CFR 60.5115, How do I comply with the increment of
progress for achieving final compliance?
40 CFR 60.5120, What must I do if I close my SSI unit and
then restart it?
40 CFR 60.5125, What must I do if I plan to permanently
close my SSI unit and not restart it?
Model Rule, Operator Training and Qualification
40 CFR 60.5130, What are the operator training and qualification
requirements?
40 CFR 60.5135, When must the operator training course be
completed?
40 CFR 60.5140, How do I obtain my operator qualification?
40 CFR 60.5145, How do I maintain my operator
qualification?
40 CFR 60.5150, How do I renew my lapsed operator
qualification?
40 CFR 60.5155, What if all the qualified operators are
temporarily not accessible?
40 CFR 60.5160, What site-specific documentation is
required and how often must it be reviewed by qualified SSI operators and other
plant personnel who may operate the unit according to the provisions of 40 CFR
60.5155(a)?
Model Rule, Emission Limits, Emission Standards, and
Operating Limits and Requirements
40 CFR 60.5165, What emission limits and standards must I
meet and by when?
40 CFR 60.5170, What operating limits and requirements must
I meet and by when?
40 CFR 60.5175, How do I establish operating limits if I do
not use a wet scrubber, fabric filter, electrostatic precipitator, activated
carbon injection, or afterburner, or if I limit emissions in some other manner,
to comply with the emission limits?
40 CFR 60.5180, Do the emission limits, emission standards,
and operating limits apply during periods of startup, shutdown, and
malfunction?
40 CFR 60.5181, How do I establish affirmative defense for exceedance of an emission limit or standard during
malfunction?
Model Rule, Initial Compliance Requirements
40 CFR 60.5185, How and when do I demonstrate initial
compliance with the emission limits and standards?
40 CFR 60.5190, How do I establish my operating limits?
40 CFR 60.5195, By what date must I conduct the initial air
pollution control device inspection and make any necessary repairs?
40 CFR 60.5200, How do I develop a site-specific monitoring
plan for my continuous monitoring systems, bag leak detection system, and ash
handling system, and by what date must I conduct an initial performance
evaluation of my continuous monitoring systems and bag leak detection system?
Model Rule, Continuous Compliance Requirements
40 CFR 60.5205, How and when do I demonstrate continuous
compliance with the emission limits and standards?
40 CFR 60.5210, How do I demonstrate continuous compliance
with my operating limits?
40 CFR 60.5215, By what date must I conduct annual air
pollution control device inspections and make any necessary repairs?
Model Rule, Performance Testing, Monitoring, and
Calibration Requirements
40 CFR 60.5220, What are the performance testing,
monitoring, and calibration requirements for compliance with the emission
limits and standards?
40 CFR 60.5225, What are the monitoring and calibration
requirements for compliance with my operating limits?
Model Rule, Recordkeeping and Reporting
40 CFR 60.5230, What records must I keep?
40 CFR 60.5235, What reports must I submit?
Model Rule, Title V Operating Permits
40 CFR 60.5240, Am I required to apply for and obtain a
Title V operating permit for my existing SSI unit?
40 CFR 60.5245, When must I submit a Title V permit
application for my existing SSI unit?
Model Rule, Definitions
40 CFR 60.5250, What definitions must I know?
TABLES
Table 2 to Subpart MMMM of 40 CFR Part 60, Model Rule,
Emission Limits and Standards for Existing Fluidized Bed Sewage Sludge
Incineration Units.
Table 3 to Subpart MMMM of 40 CFR Part 60, Model Rule,
Emission Limits and Standards for Existing Multiple Hearth Sewage Sludge
Incineration Units.
Table 4 to Subpart MMMM of 40 CFR Part 60, Model Rule,
Operating Parameters for Existing Sewage Sludge Incineration Units.
Table 5 to Subpart MMMM of 40 CFR Part 60, Model Rule,
Toxic Equivalency Factors.
Table 6 to Subpart MMMM of 40 CFR Part 60, Model Rule,
Summary of Reporting Requirements for Existing Sewage Sludge Incineration
Units.
VA.R. Doc. No. R12-3184; Filed June 13, 2012, 1:38 p.m.
Forms
REGISTRAR'S NOTICE:
Forms used in administering the following regulation have been filed by the
State Air Pollution Control Board. The forms are not being published; however,
online users of this issue of the Virginia Register of Regulations may click on
the name of the new or amended form to access it. The forms are also available
from the agency contact or may be viewed at the Office of the Registrar of
Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.
Title of Regulation: 9VAC5-80. Permits for Stationary
Sources.
Contact Information: Debra A. Miller, Policy Planning
Specialist, Department of Environmental Quality, 629 East Main Street,
Richmond, VA 23219, telephone (804) 698-4209, FAX (804) 698-4346, or email debra.miller@deq.virginia.gov.
FORMS (9VAC5-80)
Air Operating Permit Application, DEQ Form 805 (2/15/96).
Air
Permit Application Fee Form - July 1, 2012 (AP Form 5).
EPA Acid Rain Program -- New Unit Exemption Form (40 CFR 72.7)
with instructions, EPA Form 7610-19 (rev. 12-94).
EPA Acid Rain Program -- Retired Unit Exemption Form (40 CFR
72.8) with instructions, EPA Form 7610-20 (rev. 12-94).
EPA Acid Rain Program -- Certificate of Representation (40 CFR
72.24) with instructions, EPA Form 7610-1 (rev. 12-94).
EPA Acid Rain Program -- Phase II Permit Application (40 CFR
72.30-72.31) with instructions, EPA Form 7610-16 (rev. 12-94).
EPA Acid Rain Program -- Repowering Extension Plan (40 CFR
72.44) with instructions, EPA Form 7610-17 (rev. 12-94).
VA.R. Doc. No. R12-3277; Filed June 26, 2012, 10:18 a.m.
Final Regulation
REGISTRAR'S NOTICE:
The following regulatory action is exempt from the Administrative Process Act
in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which
excludes regulations that are necessary to meet the requirements of federal law
or regulations provided such regulations do not differ materially from those
required by federal law or regulation. The State Air Pollution Control Board
will receive, consider, and respond to petitions by any interested person at
any time with respect to reconsideration or revision.
Title of Regulation: 9VAC5-151. Regulation for
Transportation Conformity (Rev. C12) (amending 9VAC5-151-40, 9VAC5-151-70).
Statutory Authority: § 10.1-1308 of the Code of
Virginia; § 176(c) of the federal Clean Air Act.
Effective Date: August 15, 2012.
Agency Contact: Mary E. Major, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4423, FAX (804) 698-4510, or email mary.major@deq.virginia.gov.
Summary:
The U.S. Environmental Protection Agency (EPA) promulgated
amendments to the federal transportation regulation on March 14, 2012 (77 FR
14979). Under 40 CFR 51.390, Virginia is required to submit to the EPA a
revision to the SIP that establishes conformity criteria and procedures
consistent with the transportation conformity regulation promulgated by EPA at
40 CFR Part 93. In order to implement the federal transportation conformity
requirements, the Virginia regulation must reflect the recent revisions made to
the federal regulations. This regulation is amended to include the 2012 CFR
revisions.
Part III
Criteria and Procedures for Making Conformity Determinations
9VAC5-151-40. General.
The Environmental Protection Agency (EPA) regulations
promulgated at 40 CFR Part 93, Subpart A (Conformity to State or Federal
Implementation Plans of Transportation Plans, Programs, and Projects Developed,
Funded or Approved Under Title 23 USC or the Federal Transit Laws) and
designated in 9VAC5-151-50 are incorporated by reference into this chapter as
amended by the word or phrase substitutions given in 9VAC5-151-60. The 40 CFR
section numbers appearing in 9VAC5-151-50 identify the specific provisions
incorporated by reference. The specific version of the provisions incorporated
by reference shall be that contained in the CFR (2010) (2012) in
effect July 1, 2010 2012.
9VAC5-151-70. Consultation.
A. The MPOs, LPOs, DEQ, VDOT and VDRPT shall undertake the
procedures prescribed in this section for interagency consultation, conflict
resolution and public consultation with each other and with local or regional
offices of EPA, FHWA, and FTA on the development of control strategy
implementation plan revisions, the list of TCMs in the applicable
implementation plan, transportation plans, TIPs, and associated conformity
determinations required by this chapter.
B. Until EPA grants approval of this chapter, the MPOs, and
VDOT and VDRPT, prior to making conformity determinations, shall provide
reasonable opportunity for consultation with LPOs, DEQ and EPA on the issues in
subdivision D 1 of this section.
C. The provisions of this subsection shall be followed with
regard to general factors associated with interagency consultation.
1. Representatives of the MPOs, VDOT, VDRPT, FHWA, and FTA
shall undertake an interagency consultation process, in accordance with
subdivisions 1 and 3 of this subsection and subsection D of this section, with
the LPOs, DEQ and EPA on the development of implementation plans,
transportation plans, TIPs, any revisions to the preceding documents, and
associated conformity determinations.
a. MPOs, or their designee, shall be the lead agencies
responsible for preparing the final document or decision and for assuring the
adequacy of the interagency consultation process with respect to the
development of the transportation plan, the TIP, and any amendments or
revisions thereto. In the case of nonmetropolitan areas, VDOT shall be the lead
agency responsible for preparing the final document or decision and for
assuring the adequacy of the interagency consultation process with respect to
the development of the statewide transportation plan, the statewide TIP, and
any amendments or revisions thereto. The MPOs shall be the lead agencies
responsible for preparing the final document or decision and for assuring the
adequacy of the interagency consultation process with respect to any
determinations of conformity under this chapter for which the MPO is
responsible.
b. It shall be the affirmative responsibility of the lead
agency to initiate the process by notifying other participants, convene
meetings, assure that all relevant documents and information are supplied to
all participants in the consultation process in a timely manner, prepare
summaries of consultation meetings, maintain a written record of the
consultation process, provide final documents and supporting information to
each agency after approval or adoption, and to assure the adequacy of the
interagency consultation process with respect to the subject document or
decision.
c. Regular consultation on major activities (such as the
development of a transportation plan, the development of a TIP, or any
determination of conformity on transportation plans or TIPs) shall include
meetings beginning on a date determined by the lead agency to be adequate to
meet the date a final document is required and continuing at frequency mutually
determined by the affected agencies. In addition, technical meetings shall be convened
as necessary.
d. Each lead agency in the consultation process shall confer
with all other agencies identified under subdivision 1 of this subsection with
an interest in the document to be developed, provide all information to those
agencies needed for meaningful input, solicit early and continuing input from
those agencies, and prior to taking any action, consider the views of each
agency and respond to those views in a timely, substantive written manner prior
to any final decision on the documents. The views and written responses shall
be made part of the record of any decision or action.
e. It shall be the responsibility of each agency specified in
subdivision 1 of this subsection, when not fulfilling the responsibilities of
lead agency, to confer with the lead agency and other participants in the
consultation process, review and comment as appropriate (including comments in
writing) on all proposed and final documents and decisions in a timely manner,
attend consultation and decision meetings, provide input on any area of
substantive expertise or responsibility, and provide technical assistance to
the lead agency or to the consultation process when requested.
2. Representatives of the LPOs, DEQ, and EPA shall undertake
an interagency consultation process, in accordance with this subdivision and
subdivision 3 of this subsection, with MPOs, VDOT, VDRPT, FHWA, and FTA on the
development of control strategy implementation plan revisions, the list of TCMs
in the applicable implementation plan, and any revisions to the preceding
documents.
a. The DEQ, in conjunction with the LPOs, shall be the lead
agency responsible for preparing the final document or decision and for
assuring the adequacy of the interagency consultation process with respect to
the development of control strategy implementation plan revisions, the credits
associated with the list of TCMs in the applicable implementation plan, and any
amendments or revisions thereto.
b. It shall be the affirmative responsibility of the lead
agency to initiate the process by notifying other participants, convene
meetings, assure that all relevant documents and information are supplied to
all participants in the consultation process in a timely manner, prepare
minutes of consultation meetings, maintain a written record of the consultation
process, provide final documents and supporting information to each agency
after approval or adoption, and to assure the adequacy of the interagency
consultation process with respect to the subject document or decision.
c. Regular consultation on the development of any control
strategy implementation plan revision shall include meetings beginning on a
date determined by the lead agency to be adequate to meet the date a final
document is required and continuing at frequency mutually determined by the
affected agencies. In addition, technical meetings shall be convened as
necessary.
d. Each lead agency in the consultation process shall confer
with all other agencies identified under subdivision 1 of this subsection with
an interest in the document to be developed, provide all information to those
agencies needed for meaningful input, solicit early and continuing input from
those agencies, and prior to taking any action, consider the views of each
agency and respond to those views in a timely, substantive written manner prior
to any final decision on the documents. The views and written responses shall
be made part of the record of any decision or action.
e. It shall be the responsibility of each agency specified in
subdivision 1 of this subsection, when not fulfilling the responsibilities of
lead agency, to confer with the lead agency and other participants in the
consultation process, review and comment as appropriate (including comments in
writing) on all proposed and final documents and decisions in a timely manner,
attend consultation and decision meetings, provide input on any area of
substantive expertise or responsibility, and provide technical assistance to
the lead agency or to the consultation process when requested.
3. The specific roles and responsibilities of various
participants in the interagency consultation process shall be as follows:
a. The MPOs shall be responsible for the following:
(1) Developing metropolitan transportation plans and TIPs in
accordance with 23 CFR Part 450 and 49 CFR Part 613 and the Safe, Accountable,
Flexible, Efficient, Transportation Equity Act: A Legacy for Users (Public Law
No. 109-59).
(2) Adopting conformity determinations in conjunction with the
adoption of transportation plans and TIPs and any revisions to the documents.
(3) In cooperation with VDOT, with assistance from VDRPT:
(a) Developing conformity assessments and associated
documentation.
(b) Evaluating potential TCM projects and impacts.
(c) (i) Developing or approving transportation
and related socio-economic data and planning assumptions, or both, and (ii)
providing the data and assumptions for use in air quality analysis for
implementation plan tracking and conformity of transportation plans, TIPs and
projects.
(d) Monitoring regionally significant projects.
(e) Providing technical and policy input into the development
of emissions budgets.
(f) Assuring the proper completion of transportation modeling,
regional emissions analyses and documentation of timely implementation of TCMs
needed for conformity assessments.
(g) Involving the DEQ and LPOs continuously in the process.
(h) Consulting with FHWA and FTA on (i)
timely action on final findings of conformity, after consultation with other
agencies as provided in this section; and (ii) guidance on conformity and the
transportation planning process to agencies in interagency consultation.
(i) Consulting with EPA on (i) review and approval of updated motor vehicle emissions
factors, emission inventories and budgets; and (ii) guidance on conformity
criteria and procedures to the agencies involved in the interagency
consultation process.
b. The VDOT, with assistance from the VDRPT, shall be
responsible for the following:
(1) Developing statewide transportation plans and statewide
TIPs.
(2) Providing demand forecasting and on-road mobile source
emission inventories.
(3) Circulating draft and final project environmental
documents to other agencies.
(4) Convening air quality technical review meetings on
specific projects as needed or when requested by other agencies.
(5) In cooperation with the MPOs:
(a) Developing conformity assessments and associated
documentation.
(b) Evaluating potential TCM projects and impacts.
(c) (i) Developing or approving
transportation and related planning assumptions, or both, and (ii) providing
the data and assumptions for use in air quality analysis for implementation
plan tracking and conformity of transportation plans, TIPs and projects.
(d) Monitoring regionally significant projects.
(e) Providing technical and policy input into the development
of emissions budgets.
(f) Assuring the proper completion of transportation modeling,
regional emissions analyses and documentation of timely implementation of TCMs
need for conformity assessments.
(g) Involving the DEQ and LPOs continuously in the process.
(h) Consulting with FHWA and FTA on (i)
timely action on final findings of conformity, after consultation with other agencies
as provided in this section; and (ii) guidance on conformity and the
transportation planning process to agencies in interagency consultation.
(i) Consulting with EPA on (i) review and approval of updated motor vehicle emissions
factors, emission inventories and budgets; and (ii) guidance on conformity
criteria and procedures to the agencies involved in the interagency
consultation process.
c. The LPOs shall be responsible for the following:
(1) Developing emissions inventories and budgets.
(2) Developing control strategy implementation plan revisions
and maintenance plans.
(3) Providing a staff liaison to the MPOs for conformity and
to be responsive to MPO requests for information and technical guidance.
(4) Involving the MPOs, VDOT AND VDRPT continuously in the
process.
d. The DEQ shall be responsible for the following:
(1) Developing emissions inventories and budgets.
(2) Tracking attainment of air quality standards, and emission
factor model updates.
(3) Gaining final approval at state level for control strategy
implementation plan revisions and maintenance plans.
(4) Providing a staff liaison to the LPOs for conformity and
to be responsive to LPO requests for information and technical guidance.
(5) Involving the LPOs continuously in the process.
e. The FHWA and FTA shall be responsible for the following:
(1) Assuring timely action on final findings of conformity,
after consultation with other agencies as provided in this section.
(2) Providing guidance on conformity and the transportation
planning process to agencies in interagency consultation.
f. The EPA shall be responsible for the following:
(1) Reviewing and approving updated motor vehicle emissions
factors.
(2) Providing guidance on conformity criteria and procedures
to agencies in interagency consultation.
(3) Assuring timely action on conformity analysis and findings
and implementation plan revisions.
4. The MPOs, LPOs, DEQ, VDOT and VDRPT may enter into
agreements to set forth specific consultation procedures in more detail that
are not in conflict with this section.
D. The provisions of this subsection shall be followed with
regard to specific processes associated with interagency consultation.
1. An interagency consultation process involving the MPOs,
LPOs, DEQ, VDOT, VDRPT, EPA, FHWA, and FTA shall be undertaken for the
following:
a. Evaluating and choosing each model (or models) and
associated methods and assumptions to be used in hot-spot analyses and regional
emission analyses, including vehicle miles traveled (VMT) forecasting, to be
initiated by VDOT, in consultation with the MPOs, and conducted in accordance
with subdivisions C 1 and 3 of this section.
b. Determining which transportation projects should be
considered "regionally significant" for the purpose of regional
emission analysis (in addition to those functionally classified as principal
arterial or higher; or fixed guideway systems or
extensions that offer an alternative to regional highway travel), and which
projects should be considered to have a significant change in design concept
and scope from the transportation plan or TIP, to be initiated by VDOT, in
consultation with the MPOs, and conducted in accordance with subdivisions C 1
and 3 of this section.
c. Evaluating whether projects otherwise exempted from meeting
the requirements of 40 CFR 93.126 and 40 CFR 93.127 should be treated as
nonexempt in cases where potential adverse emissions impacts may exist for any
reason, to be initiated by VDOT, in consultation with the MPOs, and conducted
in accordance with subdivisions C 1 and 3 of this section.
d. Making a determination, as required by 40 CFR 93.113(c)(1),
whether past obstacles to implementation of TCMs that are behind the schedule
established in the applicable implementation plan have been identified and are
being overcome, and whether state and local agencies with influence over
approvals or funding for TCMs are giving maximum priority to approval or
funding for TCMs, to be initiated by VDOT as lead agency, in consultation with
the MPOs and VDRPT, and conducted in accordance with subdivisions C 1 and 3 of
this section. This consultation process shall also consider whether delays in
TCM implementation necessitate revisions to the applicable implementation plan
to remove TCMs or substitute TCMs or other emission reduction measures.
e. Notifying all parties to the consultation process of
transportation plan or TIP amendments that merely add or delete exempt projects
listed in 40 CFR 93.126 or 40 CFR 93.127, to be initiated by VDOT in
consultation with the MPOs, and conducted in accordance with subdivisions C 1
and 3 of this section.
f. Choosing conformity tests and methodologies for isolated
rural nonattainment and maintenance areas, as required by 40
CFR 93.109(n)(2)(iii) 40 CFR 93.109(g)(2)(iii), to be initiated
by VDOT, in consultation with the MPOs, and in accordance with subdivisions C 1
and 3 of this section.
g. Determining what forecast of vehicle miles traveled (VMT)
to use in establishing or tracking emissions budgets, developing transportation
plans, TIPs, or control strategy implementation plan revisions, or making
conformity determinations, to be initiated by VDOT, in consultation with the
MPOs, and in accordance with subdivisions C 1 and 3 of this section.
2. An interagency consultation process in accordance with
subsection C of this section involving the MPOs, LPOs, DEQ, VDOT, and VDRPT
shall be undertaken for the following:
a. Evaluating events that may trigger new conformity
determinations in addition to those triggering events established by 40 CFR
93.104, to be initiated by VDOT, in consultation with the MPOs and DEQ, and
conducted in accordance with subdivisions C 1 and 3 of this section.
b. Consulting on emissions analysis for transportation
activities that cross the borders of MPOs or nonattainment areas, to be
initiated by VDOT in consultation with the MPOs, and conducted in accordance
with subdivisions C 1 and 3 of this section.
3. Where the metropolitan planning area does not include the
entire nonattainment or maintenance area, an interagency consultation process
in accordance with subdivisions C 1 and 3 of this section involving the MPOs
and VDOT shall be undertaken for cooperative planning and analysis for purposes
of determining conformity of all projects outside the metropolitan area and
within the nonattainment or maintenance area, to be initiated by VDOT, in
consultation with the MPOs, and in accordance with subdivisions C 1 and 3 of
this section.
4. To assure that plans for construction of regionally
significant projects that are not FHWA or FTA projects (including projects for
which alternative locations, design concept and scope, or the no-build option
are still being considered), including all those by recipients of funds
designated under Title 23 USC or the Federal Transit Act, are disclosed to the
MPO on a regular basis, and to assure that any changes to those plans are
immediately disclosed, an interagency consultation process shall be undertaken,
to be initiated by the MPO, in consultation with VDOT, and conducted in
accordance with subdivisions C 1 and 3 of this section involving the MPO, VDOT,
VDRPT, and recipients of funds designated under Title 23 USC or the Federal
Transit Act.
5. An interagency consultation process in accordance with
subsections C 1 and 3 of this section involving the MPOs and other recipients
of funds designated under Title 23 USC or the Federal Transit Act shall be
undertaken for developing assumptions regarding the location and design concept
and scope of projects that are disclosed to the MPO as required by subdivision
4 of this subsection but whose sponsors have not yet decided these features in
sufficient detail to perform the regional emissions analysis according to the
requirements of 40 CFR 93.122, to be initiated by the MPO, in consultation with
VDOT, and conducted in accordance with subdivisions C 1 and 3 of this section.
6. An interagency consultation process in accordance with
subdivisions C 1 and 3 of this section shall be undertaken for the design,
schedule, and funding of research and data collection efforts and model
developments in regional transportation (such as household or travel
transportation surveys) to be initiated by the MPO, in consultation with VDOT,
and conducted in accordance with subdivisions C 1 and 3 of this section.
E. The provisions of this subsection shall be followed with
regard to conflict resolution associated with interagency consultation.
1. Unresolved conflicts among state agencies, or between state
agencies and the MPO(s), or among MPO member jurisdictions, shall be identified
by an MPO or agency in writing to the other MPO, DEQ, VDOT, or VDRPT, with
copies to FHWA, FTA and EPA. The MPO's or agency's written notice shall:
a. Explain the nature of the conflict;
b. Review options for resolving the conflict;
c. Describe the MPO's or agency's proposal to resolve the
conflict;
d. Explain the consequences of not reaching a resolution; and
e. Request that comments on the matter be received within two
weeks.
2. If the above action does not result in a resolution to the
conflict, either of the following shall apply:
a. If the conflict is between the MPOs or between the MPO(s)
and VDOT or VDRPT or both, then the parties shall follow the coordination
procedures of 23 CFR 450.210.
b. If the conflict is between the MPO(s) or VDOT or VDRPT and
the DEQ and the conflict can not be resolved by the
affected agency heads, then the DEQ Director may elevate the conflict to the
Governor in accordance with the procedures of subdivision 3 of this section. If
the DEQ Director does not appeal to the Governor within 14 days as provided in
subdivision 3 a of this subsection, the MPO or VDOT
or VDRPT may proceed with its final conformity determination.
3. Appeals to the Governor by the DEQ Director under the
provisions of subdivision 2 b of this subsection shall be in accordance with
the following procedures:
a. The DEQ Director has 14 calendar days to appeal to the
Governor after the MPO(s) or VDOT or VDRPT has notified the DEQ Director of the
agency's or MPO's resolution of DEQ's comments. The notification to the DEQ
Director shall be in writing and shall be hand-delivered. The 14-day clock
shall commence when VDOT or VDRPT or the MPO has confirmed receipt by the DEQ
Director of the agency's or MPO's resolution of the DEQ's comments.
b. The appeal to the Governor shall consist of the following:
the conformity determination and any supporting documentation; DEQ's comments
on the determination; the MPO(s) or VDOT or VDRPT resolution of DEQ's comments;
and DEQ's appeal document.
c. The DEQ shall provide a complete appeal package to the MPO,
VDOT and VDRPT within 24 hours of the time the appeal is filed with the
Governor's Office.
d. If the Governor does not concur with the conformity
determination, he may direct revision of the applicable implementation plan,
revision of the planned program of projects, revision of the conformity
analysis or any combination of the preceding.
e. If the Governor concurs with the conformity determination
made by the MPO and VDOT, the MPO and VDOT may proceed with the final
conformity determination.
f. The Governor may delegate his role in this process, but not
to the agency head or staff of DEQ, VDOT or VDRPT or the Commonwealth Board of
Transportation.
4. Nothing in this section shall prevent the state agencies
and MPOs from making efforts upon their own initiative to obtain mutual
conflict resolution through conference or other appropriate means.
F. The provisions of this subsection shall be followed with
regard to public consultation.
1. The MPOs shall establish a proactive involvement process
that provides reasonable opportunity for review and comment by, at a minimum,
providing reasonable public access to technical and policy information
considered by the MPO at the beginning of the public comment period and prior
to taking formal action on a conformity determination for all transportation
plans and TIPs, consistent with the requirements of 23 CFR 450.316(a).
2. The MPOs shall specifically address in writing public
comments regarding plans for a regionally significant project, not receiving
FHWA or FTA funding or approval, and how the project is properly reflected in
the emission analysis supporting a proposed conformity finding for a
transportation plan or TIP.
3. The MPOs shall also provide an opportunity for public
involvement in conformity determinations for projects where otherwise required
by law.
VA.R. Doc. No. R12-3248; Filed June 13, 2012, 1:41 p.m.
VIRGINIA WASTE MANAGEMENT BOARD
Final Regulation
REGISTRAR'S NOTICE:
The Virginia Waste Management Board is claiming an exclusion from the
Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that
are necessary to conform to changes in Virginia statutory law where no agency
discretion is involved. The Virginia Waste Management Board will receive,
consider, and respond to petitions by any interested person at any time with
respect to reconsideration or revision.
Title of Regulation: 9VAC20-90. Solid Waste
Management Permit Action Fees and Annual Fees (amending 9VAC20-90-113, 9VAC20-90-114,
9VAC20-90-115).
Statutory Authority: § 10.1-1402 of the Code of
Virginia.
Effective Date: August 15, 2012.
Agency Contact: Debra Miller, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4206, FAX (804) 698-4346, or email debra.miller@deq.virginia.gov.
Summary:
This action removes the cap on total fees collected from
certain solid waste facilities in conformance with the Department of
Environmental Quality's appropriations under the 2012 Appropriation
Act.
9VAC20-90-113. Annual fee calculation for incinerators and
energy recovery facilities.
A. General. All persons operating an incinerator or energy
recovery facility that is permitted under the regulations outlined in
9VAC20-90-50 shall submit annual fees according to the procedures provided in
9VAC20-90-65. Annual fees shall be calculated using the procedures provided in
subsection B of this section. Fees shall be rounded to the nearest dollar. The
2010 base fee rate is $0.055 per ton.
B. Fee calculation. Annual tonnage will be determined from
the total amount of waste reported as having been incinerated on Form DEQ 50-25
for the preceding year pursuant to the Waste Information Assessment Program
(9VAC20-81-80). Annual fees shall be calculated by multiplying the number of
tons of waste incinerated by the fee rate set forth in subsection A of this
section adjusted annually by the change in the Consumer Price Index. The
Consumer Price Index is the Consumer Price Index for all-urban consumers for
the 12-month period ending on April 30 of the calendar year preceding the year
the annual fee is due. The Consumer Price Index for all-urban consumers is
published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All
items, CUUR0000SA0.
C. Weight/volume conversions. For facilities required to pay
annual fees based on the tonnage of the waste incinerated, the annual fee shall
be based on the accurate weight of waste. If scales are unavailable, the volume
of the waste incinerated by the facility must be multiplied by 0.50 tons per
cubic yard to determine the weight of the waste incinerated. If the volume of
waste is used to determine the tonnage of waste incinerated, accurate and
complete records of the waste received and managed must be maintained in
addition to the calculated weight records described in this part. These records
must be maintained onsite throughout the life of the facility and made
available to the department upon request.
D. Emergency. The director may waive or reduce annual fees
assessed during a state of emergency or for waste resulting from an emergency
response action. A facility operator may request a determination if a given
volume of waste incinerated in a given calendar year qualifies for a waived or
reduced fee by submitting documentation of the emergency to the regional office
where the facility is located. The request will provide the name and permit
number of the facility, a facility contact, the nature of the emergency or
response action, a description of the waste, and an accurate accounting of the
type and tonnage of waste managed as a result of the emergency. Requests for a
determination by the director must be submitted by March 31 of the year
following the emergency coincident with the solid waste information assessment
report. A separate request shall be provided for each year if the emergency
lasts for multiple years.
E. Annual fee discounts for environmental excellence program
participants are set out in 9VAC20-90-117.
F. The operator of a facility owned by a private entity and
subject to any fee imposed pursuant to this section shall collect such fee as a
surcharge on any fee schedule established pursuant to law, ordinance,
resolution, or contract for solid waste processing or disposal operations at the
facility.
G. Closure. Facilities that remove all waste materials at the
time of closure and are subject only to closure requirements are subject to
payment of the annual fee if they were operating at any time during the
calendar year.
H. The total annual sum of annual fees and permit
application fees collected by the board from sanitary landfills and other
nonhazardous solid waste facilities shall not exceed 60% of the direct costs of
(i) processing an application to issue, reissue,
amend, or modify permits; and (ii) performing inspections and enforcement
actions necessary to assure compliance with permits issued for any sanitary
landfill and other facility for the disposal, treatment, or storage of
nonhazardous solid waste. The director shall take whatever action is necessary
to ensure that this limit is not exceeded.
9VAC20-90-114. Annual fee calculation for sanitary landfills, noncaptive industrial landfills, and construction and
demolition debris landfills.
A. General. All persons operating a sanitary landfill, noncaptive industrial landfill, or a construction and
demolition debris landfill permitted under the regulations outlined in
9VAC20-90-50 shall submit annual fees according to the procedures provided in
9VAC20-90-65. Annual fees shall be calculated using the procedures provided in
subsection B of this section. Fees shall be rounded to the nearest dollar. The
2010 base fee rate is $0.115 per ton.
B. Fee calculation. Annual tonnage will be determined from
the total amount of waste reported as having been landfilled on Form DEQ 50-25
for the preceding year pursuant to the Waste Information Assessment Program
(9VAC20-81-80). Annual fees shall be calculated by multiplying the tons of
waste landfilled (excluding any ash landfilled that was generated by incinerators
and energy recovery facilities located in Virginia previously assessed a fee
under 9VAC20-90-113) by the fee rate set forth in subsection A of this section
adjusted annually by the change in the Consumer Price Index. The Consumer Price
Index is the Consumer Price Index values for all-urban consumers for the
12-month period ending on April 30 of the calendar year preceding the year the
annual fee is due. The Consumer Price Index for all-urban consumers is
published by the U.S. Department of Labor, Bureau of Labor Statistics, U.S. All
items, CUUR0000SA0. Landfills receiving ash generated
by incinerators and energy recovery facilities located in Virginia previously
assessed a fee under 9VAC20-90-113 shall report to the board the amount of ash
received from individual facilities on the Solid Waste Information Reporting
Table, Form DEQ 50-25. The tonnage of ash identified as being generated by
incinerators and energy recovery facilities previously assessed a fee under
9VAC20-90-113 shall be exempted from the annual fee assessed for sanitary
landfills, construction and demolition debris landfills, and noncaptive industrial landfills.
C. Weight/volume conversions. For facilities required to pay
annual fees based on the tonnage of the waste landfilled, the annual fee shall
be based on the accurate weight of waste. If scales are unavailable, the volume
of the waste landfilled by the facility must be multiplied by 0.50 tons per
cubic yard to determine the weight of the waste landfilled. If the volume of
waste is used to determine the tonnage of waste landfilled, accurate and
complete records of the waste received and managed must be maintained in
addition to the calculated weight records described in this part. These records
must be maintained onsite throughout the life of the facility and made
available to the department upon request.
D. Emergency. The director may waive or reduce annual fees
assessed during a state of emergency or for waste resulting from an emergency
response action. A facility operator may request a determination if a given
volume of waste landfilled in a given calendar year qualifies for a waived or
reduced fee by submitting documentation of the emergency to the regional office
where the facility is located. The request will provide the name and permit
number of the facility, a facility contact, the nature of the emergency or
response action, a description of the waste, and an accurate accounting of the
type and tonnage of waste managed as a result of the emergency. Requests for a
determination by the director must be submitted by March 31 of the year
following the emergency coincident with the solid waste information assessment
report. A separate request shall be provided for each year if the emergency
lasts for multiple years.
E. Annual fee discounts for environmental excellence program
participants are set out in 9VAC20-90-117.
F. The operator of a facility owned by a private entity and
subject to any fee imposed pursuant to this section shall collect such fee as a
surcharge on any fee schedule established pursuant to law, ordinance,
resolution, or contract for solid waste processing or disposal operations at
the facility.
G. Closure. Facilities that remove all waste materials at the
time of closure and are subject only to closure requirements are subject to
payment of the annual fee if they were operating at any time during the
calendar year.
H. Transition to post-closure care. Landfills entering
post-closure care will pay an annual fee as follows:
1. If the landfill received waste during the previous calendar
year, the annual fee will be based on the amount of waste landfilled for the
preceding year pursuant to the Waste Information Assessment Program
(9VAC20-81-80); or
2. If the landfill did not receive waste during the previous
calendar year and began post-closure care during the previous calendar year as
provided in 9VAC20-81-170, the landfill shall be subject to the post-closure
care annual fee.
I. The total annual sum of annual fees and permit
application fees collected by the board from sanitary landfills and other
nonhazardous solid waste facilities shall not exceed 60% of the direct costs of
(i) processing an application to issue, reissue,
amend, or modify permits; and (ii) performing inspections and enforcement
actions necessary to assure compliance with permits issued for any sanitary
landfill and other facility for the disposal, treatment, or storage of
nonhazardous solid waste. The director shall take whatever action is necessary
to ensure that this limit is not exceeded.
9VAC20-90-115. Annual fee calculation for other types of
facilities.
A. General. All persons operating a composting facility,
regulated medical waste facility, materials recovery facility, transfer
station, landfill in post-closure care, or active captive industrial landfill
that is permitted under the regulations outlined in 9VAC20-90-50 shall submit
annual fees according to the procedures provided in 9VAC20-90-65. Annual fees
shall be calculated using the procedures provided in subsection B of this
section. Fees shall be rounded to the nearest dollar. The 2010 base fee rates
are provided in Table 4.1 of 9VAC20-90-130. Active captive industrial landfills
shall submit Form DEQ 50-25 to the department to indicate if the landfill is a
small landfill or large landfill based on the total amount of waste landfilled
during the preceding calendar year.
B. Fee calculation. Annual fees shall be the fee rate set
forth in subsection A of this section adjusted annually by the change in the
Consumer Price Index. The Consumer Price Index is the Consumer Price Index for
all-urban consumers for the 12-month period ending on April 30 of the calendar
year preceding the year the annual fee is due. The Consumer Price Index for
all-urban consumers is published by the U.S. Department of Labor, Bureau of
Labor Statistics, U.S. All items, CUUR0000SA0.
C. Weight/volume conversions. For facilities required to pay
annual fees based on the tonnage of the waste landfilled, the annual fee shall
be based on the accurate weight of waste. If scales are unavailable, the volume
of the waste landfilled by the facility must be multiplied by 0.50 tons per
cubic yard to determine the weight of the waste landfilled. If the volume of
waste is used to determine the tonnage of waste landfilled, accurate and
complete records of the waste received and managed must be maintained in
addition to the calculated weight records described in this part. These records
must be maintained onsite throughout the life of the facility and made
available to the department upon request.
D. Emergency. The director may waive or reduce annual fees
assessed during a state of emergency or for waste resulting from an emergency
response action. A facility operator may request a determination if a given
volume of waste landfilled in a given calendar year qualifies for a waived or
reduced fee by submitting documentation of the emergency to the regional office
where the facility is located. The request will provide the name and permit
number of the facility, a facility contact, the nature of the emergency or
response action, a description of the waste, and an accurate accounting of the
type and tonnage of waste managed as a result of the emergency. Requests for a
determination by the director must be submitted by March 31 of the year following
the emergency coincident with the solid waste information assessment report. A
separate request shall be provided for each year if the emergency lasts for
multiple years.
E. Annual fee discounts for environmental excellence program
participants are set out in 9VAC20-90-117.
F. The operator of a facility owned by a private entity and
subject to any fee imposed pursuant to this section shall collect such fee as a
surcharge on any fee schedule established pursuant to law, ordinance,
resolution or contract for solid waste processing or disposal operations at the
facility.
G. Closure. Facilities that remove all waste materials at the
time of closure and are subject only to closure requirements are subject to
payment of the annual fee if they were operating at any time during the calendar
year.
H. Transition to post-closure care. Landfills entering
post-closure care will pay an annual fee as follows:
1. If the landfill received waste during the previous calendar
year, the annual fee will be based on the amount of waste landfilled for the
preceding year pursuant to the Waste Information Assessment Program
(9VAC20-81-80); or
2. If the landfill did not receive waste during the previous
calendar year and began post-closure care during the previous calendar year as
provided in 9VAC20-81-170, the landfill shall be subject to the post-closure
care annual fee.
I. The total annual sum of annual fees and permit
application fees collected by the board from sanitary landfills and other
nonhazardous solid waste facilities shall not exceed 60% of the direct costs of
(i) processing an application to issue, reissue,
amend, or modify permits; and (ii) performing inspections and enforcement
actions necessary to assure compliance with permits issued for any sanitary
landfill and other facility for the disposal, treatment, or storage of
nonhazardous solid waste. The director shall take whatever action is necessary
to ensure that this limit is not exceeded.
VA.R. Doc. No. R12-3190; Filed June 19, 2012, 9:40 a.m.
Final Regulation
REGISTRAR'S NOTICE:
The Virginia Waste Management Board is claiming an exclusion from the
Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that
are necessary to conform to changes in Virginia statutory law where no agency
discretion is involved. The Virginia Waste Management Board will receive,
consider, and respond to petitions by any interested person at any time with
respect to reconsideration or revision.
Title of Regulation: 9VAC20-130. Solid Waste Planning
and Recycling Regulations (amending 9VAC20-130-165).
Statutory Authority: § 10.1-1411 of the Code of
Virginia.
Effective Date: August 15, 2012.
Agency Contact: Debra Miller, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4206, FAX (804) 698-4346, or email debra.miller@deq.virginia.gov.
Summary:
The amendments modify the frequency for submittal of the
recycling data report for each solid waste planning unit or locality with a
population of 100,000 or less to once every four years.
9VAC20-130-165. Annual recycling Recycling
data reporting.
Every A. Each solid waste planning unit or
locality with a population of greater than 100,000 persons according to the
most recent United States census shall prepare and submit a
recycling survey report to the department by April 30 of each year the
data and calculations required in 9VAC20-130-125 A, B, and C.
B. Each solid waste planning unit or locality with a
population of 100,000 or less according to the most recent United States census
shall prepare and submit a recycling survey report to the department once every
four years. These recycling survey reports shall include only information for
the most recent single year. The first reports submitted pursuant to this
subsection shall be submitted by April 30, 2013, for the reporting year ending
December 31, 2012. Thereafter, recycling survey reports shall be submitted by
April 30 of every fourth year (i.e., 2017, 2021, 2025, and so on).
C. The recycling survey report required by subsections A
and B of this section shall include the data and calculations required in 9VAC20-130-125
A, B, and C.
VA.R. Doc. No. R12-3188; Filed June 19, 2012, 9:41 a.m.
Final Regulation
REGISTRAR'S NOTICE:
The Virginia Waste Management Board is claiming an exemption from the
Administrative Process Act in accordance with § 2.2-4006 A 3, which excludes
regulations that consist only of changes in style or form or corrections of
technical errors. The Virginia Waste Management Board will receive, consider,
and respond to petitions by any interested person at any time with respect to
reconsideration or revision.
Titles of Regulations: 9VAC20-20. Schedule of Fees
for Hazardous Waste Facility Site Certification (amending 9VAC20-20-110).
9VAC20-50. Hazardous Waste Facility Siting Criteria (amending 9VAC20-50-100).
9VAC20-60. Virginia Hazardous Waste Management Regulations (amending 9VAC20-60-490, 9VAC20-60-1280,
9VAC20-60-1284).
9VAC20-70. Financial Assurance Regulations for Solid Waste
Disposal, Transfer and Treatment Facilities (amending 9VAC20-70-290).
9VAC20-160. Voluntary Remediation Regulations (amending 9VAC20-160-60).
9VAC20-170. Transportation of Solid and
Medical Wastes on State Waters (amending 9VAC20-170-190, 9VAC20-170-195,
Appendix III, Appendix VIII).
Statutory Authority: § 10.1-1454.1 of the Code of
Virginia.
Effective Date: August 15, 2012.
Agency Contact: Debra Miller, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4206, FAX (804) 698-4346, or email debra.miller@deq.virginia.gov.
Summary:
The regulatory action updates the mailing address and
telephone numbers for the Department of Environmental Quality and Marine
Resources Commission.
9VAC20-20-110. Manner of payment.
Fees shall be paid by check, draft or postal money order made
payable to "Treasurer of Virginia" and shall be sent to the
Department of Environmental Quality, Receipts Control, P.O. Box 10150 1104,
Richmond, VA 23240 23218. When the department is able to accept
electronic payments, payments may be submitted electronically.
Part IV
Related Permits and Reviews
9VAC20-50-100. Additional agency approval.
To avoid duplication to the maximum extent feasible with
existing agencies and their areas of responsibility, related agency approvals
are listed below as notification to the applicant that these permits and
reviews may apply in accordance with the type of facility proposed.
A. Permits.
1. Hazardous waste facility management.
a. Regulatory agency:
Virginia Waste Management Board.
b. State permit required:
Facility management or transportation.
c. Statutory authority:
(1) Chapter 11.1 (§ 10.1-1182 et seq.) of Title 10.1 of the
Code of Virginia and the Virginia Waste Management Act, Chapter 14 (§ 10.1-1400
et seq.) of Title 10.1 of the Code of Virginia.
(2) Hazardous Waste Management Regulations, 9VAC20-60.
d. Contact:
Department of Environmental Quality
P.O. Box 10009 1105
Richmond, VA 23240-0009 23218
(804) 698-4000
2. Air emissions.
a. Regulatory agency:
State Air Pollution Control Board.
b. State permit required:
Stationary sources
Hazardous pollutants
Open burning
c. Statutory authority, rules and regulations:
(1) Virginia Air Pollution Control Law.
(2) Federal Clean Air Act (42 USC 7401 et seq.) and
amendments.
(3) Hazardous Air Pollutant Sources, 9VAC5-60 and Permits for
Stationary Sources, 9VAC5-80.
d. Contact:
Department of Environmental Quality
P.O. Box 10009 1105
Richmond, VA 23240-0009 23218
(804) 698-4000
3. Discharges into state waters.
a. Regulatory agency:
State Water Control Board.
b. State discharge permit required:
(1) Virginia Pollutant Discharge Elimination System (NPDES).
(2) No discharge certificate.
c. Statutory authority, rules and regulations:
(1) Federal Water Pollution Control Act Amendments of 1972 (33
USC § 1251 et seq.).
(2) State Water Control Law, (§ 62.1-44.2 et seq. of the Code
of Virginia).
d. Contact:
Department of Environmental Quality
P.O. Box 10009 1105
Richmond, VA 23240-0009 23218
(804) 698-4000
4. Land disturbance.
a. Regulatory agency:
Virginia Soil and Water Conservation Board or local
government, or both.
b. State requirement:
Erosion and sediment control plan.
c. Statutory authority, rules and regulations:
(1) Erosion and sediment control law (§§ 10.1-560 et seq. of
the Code of Virginia).
(2) Virginia Erosion and Sediment Control Handbook.
d. Contact:
Department of Conservation and Recreation
203 Governor Street, Suite 213
Richmond, VA 23219-2094
(804) 786-1712
5. Wetlands, subaqueous lands, and dunes.
a. Regulatory agencies:
Virginia Marine Resources Commission (VMRC) (Clearinghouse for
permits)
Local wetlands boards
Virginia Department of Environmental Quality (VDEQ)
U.S. Army Corps of Engineers (USACE)
b. Permit required:
VMRC and local wetland boards: Use or development of any
wetland within Tidewater, Virginia
VMRC: Coastal Dunes
VMRC, VDEQ and USACE: Tidal Wetlands and Subaqueous Land
VDEQ and USACE: Nontidal Wetlands
USACE: Activities in the navigable waters of the United
States, degradation of the quality of water, and transportation and dumping of
dredged material.
c. Statutory authority, rules and regulations:
(1) Virginia Wetlands Act (§ 28.2-1300 et seq. of the Code of
Virginia.)
(2) Virginia Water Control Law (§§ 62.1-44.15 and 62.1-44.15:5
of the Code of Virginia.)
(3) Local wetland zoning ordinances.
(4) Federal Water Pollution Control Act (Clean Water Act, 33
USC § 1251 et seq.) §§ 401 and 404
(5) Rivers and Harbors Act of 1894 (33 USC § 1371).
(6) Marine Protection Research and Sanctuary Act (16 USC §§
1431-1434; 33 USC §§ 1401, 1402, 1411-1421, 1441-1444).
d. Contact:
(1) Assistant Commissioner for Habitat Management
Marine Resources Commission
P.O. Box 756 2600 Washington Avenue, 3rd Floor
Newport News, VA 23607
(804) 247-2200 (757) 247-2200
(2) Department of Environmental Quality
P.O. Box 10009 1105
Richmond, VA 23240-0009 23218
(804) 698-4000
(3) District Engineers
U.S. Army Corps of Engineers
Norfolk District
803 Front Street
Norfolk, VA 23510
B. Reviews. Applications for permits may result in a review
and comment process by state agencies. Such reviews may include comments
concerning historic landmarks, archaeological sites, caves, best management
practices, fisheries, and parks and recreation. Further information on review
procedures can be obtained by contacting, Department of Environmental Quality,
P.O. Box 10009 1105, Richmond, VA, 23240 23218; or
(804) 698-4000.
9VAC20-60-490. Discharges.
A. The transporter shall comply with all federal and
Commonwealth requirements relative to discharges.
B. 1. In the event of a discharge or spill of hazardous
wastes, the transporter shall take appropriate emergency actions to protect
human life, health, and the environment and shall notify appropriate local
authorities. Upon arrival on the scene of state or local emergency or
law-enforcement personnel, the transporter shall carry out such actions as
required of him.
2. The transporter shall clean up any hazardous waste
discharge that occurs during transportation and shall take such action as is
required by the federal government, the Virginia Department of Emergency
Management, the director, or local officials, so that the hazardous waste
discharge no longer presents a hazard to human health or the environment.
3. If the discharge of hazardous waste occurs during
transportation and the director or his designee determines that immediate
removal of the waste is necessary to protect human health or the environment,
an emergency transporter permit may be issued in accordance with 9VAC20-60-450
H.
4. The disposal of the discharged materials shall be done in a
manner consistent with this chapter and other applicable Virginia and federal
regulations.
C. Discharges by air, rail, highway, or water (nonbulk) transporters.
1. In addition to requirements contained in preceding parts,
an air, rail, highway or water (nonbulk) transporter
who has discharged hazardous waste shall give notice at the earliest
practicable moment to agencies indicated in 9VAC20-60-490 C 2 after each
incident that occurs during the course of transportation (including loading,
unloading, and temporary storage) in which as a direct result of the discharge
of the hazardous wastes:
a. A person is killed;
b. A person receives injuries requiring his hospitalization;
c. Estimated carrier or other property damage exceeds $50,000;
d. Fire, breakage, spillage, or suspected radioactive
contamination occurs involving shipment of radioactive material;
e. Fire, breakage, spillage, or suspected contamination occurs
involving shipment of etiologic agents; or
f. A situation exists of such a nature that, in the judgment
of the transporter, it should be reported in accordance with 9VAC20-60-490 C 2
even though it does not meet the above criteria (e.g., continuing danger of
life exists at the scene of the incident), or as required by 49 CFR 171.15.
2. The notice required by 9VAC20-60-490 C 1 shall be given to:
a. The National Response Center, U.S. Coast Guard, at
800-424-8802 (toll free) or at 202-267-2675 (toll call); and
b. The Virginia Department of Emergency Management at
800-468-8892 (toll free) or 804-674-2400 (Richmond local area). In a case of
discharges affecting state waters, the notice shall also be given to the
Pollution Response Program (PreP) Coordinator in the
appropriate regional office of the department.
3. When notifying as required in 9VAC20-60-490 C 1, the notifier shall provide the following information:
a. Name of person reporting the discharge and his role in the
discharge;
b. Name, telephone number and address of the transporter;
c. Name, telephone number and address of the generator;
d. Telephone number where the notifier
can be contacted;
e. Date, time and location of the discharge;
f. Type of incident, nature of hazardous waste involvement,
and whether a continuing danger to life exists at the scene;
g. Classification, name and quantity of hazardous waste
involved; and
h. The extent of injuries, if any.
4. Within 15 calendar days of the discharge of any quantity of
hazardous waste, the transporter shall send a written report on DOT Form
F5800.1 in duplicate to the Chief, Information System Division, Transportation
Programs Bureau, Department of Transportation, Washington, D.C. 20590. Two
copies of this report will also be filed with the Department of Environmental
Quality, Post Office Box 10009 1105, 629 East Main Street,
Richmond, Virginia 23240-0009 23218.
5. In reporting discharges of hazardous waste as required in
9VAC20-60-490 C 4, the following information shall be furnished in Part H of
the DOT Form F5800.1 in addition to information normally required:
a. An estimate of the quantity of the waste removed from the
scene;
b. The name and address of the facility to which it was taken;
and
c. The manner of disposition of any unremoved
waste.
A copy of the hazardous waste manifest shall be attached to
the report.
D. Discharges by water (bulk) transporters.
1. A water (bulk) transporter shall, as soon as he has
knowledge of any discharge of hazardous waste from the vessel, notify, by
telephone, radio telecommunication or a similar means of rapid communication,
the office designated in 9VAC20-60-490 C 2.
2. If notice as required in 9VAC20-60-490 D 1 is impractical,
the following offices may be notified in the order of priority:
a. The government official predesignated
in the regional contingency plan as the on-scene coordinator. Such regional
contingency plan for Virginia is available at the office of the 5th U.S. Coast
Guard District, 431 Crawford Street, Portsmouth, Virginia 23705;
b. Commanding officer or officer-in-charge of any U.S. Coast
Guard unit in the vicinity of the discharge; or
c. Commander of the 5th U.S. Coast Guard District.
3. When notifying the notifier shall
provide the following information:
a. Name of person reporting the discharge and his role in the
discharge;
b. Name, telephone number and address of the transporter;
c. Name, telephone number and address of the generator;
d. Telephone number so the notifier
can be contacted;
e. Date, time, location of the discharge;
f. Type of incident and nature of hazardous waste involvement
and whether a continuing danger to life exists at the scene;
g. Classification, name and quantity of hazardous waste
involved; and
h. The extent of injuries, if any.
E. Discharges at fixed facilities. Any transporter
responsible for the release of a hazardous material (as defined in Part I
(9VAC20-60-12 et seq.) of this chapter) from a fixed facility (e.g., transfer
facility) which poses an immediate or imminent threat to public health and who
is required by law to notify the National Response Center shall notify the
chief administrative officers (or their designees) of the local governments of
the jurisdictions in which the release occurs as well as the department.
9VAC20-60-1280. Payment of application fees.
A. Due date.
1. Except as specified in subdivision 2 of this subsection,
all permit application fees are due on the day of application and must
accompany the application.
2. All holders of a Virginia HWM facility permit issued prior
to January 1, 1988, shall submit the application fees as required by the
conditions specified in that permit.
B. Method of payment. Fees shall be paid by check, draft or
postal money order made payable to "Treasurer of Virginia" and shall
be sent to the Department of Environmental Quality, Receipts Control, P.O. Box 10150
1104, Richmond, VA 23240 23218. When the department is
able to accept electronic payments, payments may be submitted electronically.
C. Incomplete payments. All incomplete payments will be
deemed nonpayments.
D. Late payment. No applications will be deemed to be
complete (see 9VAC20-60-270) until the department receives proper payment.
9VAC20-60-1284. Payment of annual fees.
A. Due date. The operator of the treatment, storage, or
disposal facility and each large quantity generator shall pay the correct fees
to the Department of Environmental Quality. The department may bill the
facility or generator for amounts due or becoming due in the immediate future.
All payments are due and shall be received by the department no later than the
first day of October 2004 (for the 2003 annual year), and no later than the
first day of October of each succeeding year thereafter (for the preceding
annual year) unless a later payment date is specified by the department in
writing.
B. Method of payment.
1. The operator of the facility or the large quantity generator
shall send a payment transmittal letter to the Department of Environmental
Quality. The letter shall contain the name and address of the facility or
generator, the Federal Identification Number (FIN) for the facility or
generator, the amount of the payment enclosed, and the period that the payment
covers. With the transmittal letter shall be payment in full for the correct
fees due for the annual period. A copy of the transmittal letter only shall be
maintained at the facility or the site where the hazardous waste was generated.
2. Fees shall be paid by check, draft or postal money order
made payable to "Treasurer of Virginia" and shall be sent to the
Department of Environmental Quality, Receipts Control, P.O. Box 10150 1104,
Richmond, VA 23240 23218. When the department is able to accept
electronic payments, payments may be submitted electronically.
C. Late payment and incomplete payments. In addition to any
other provision provided by statute for the enforcement of these regulations,
interest may be charged for late payments at the underpayment rate set out by
the U.S. Internal Revenue Service established pursuant to § 6621(a)(2) of the
Internal Revenue Code. This rate is prescribed in § 58.1-15 of the Code of
Virginia and is calculated on a monthly basis at the applicable periodic rate.
A 10% late payment fee may also be charged to any delinquent (over 90 days past
due) account. The Department of Environmental Quality is entitled to all
remedies available under the Code of Virginia in collecting any past due amount
and may recover any attorney's fees and other administrative costs incurred in
pursuing and collecting any past due amount.
9VAC20-70-290. Wording of financial mechanisms.
A. Wording of trust agreements.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses deleted.)
TRUST AGREEMENT
Trust agreement, the "Agreement," entered into as
of (date) by and between (name of the owner or operator), a (State)
(corporation, partnership, association, proprietorship), the
"Grantor," and (name of corporate trustee), a (State corporation)
(national bank), the "Trustee."
Whereas, the Virginia Waste Management Board has established
certain regulations applicable to the Grantor, requiring that the owner or operator
of a (solid) (regulated medical) (yard) waste (transfer station) (receiving)
(management) facility must provide assurance that funds will be available when
needed for (closure, post-closure care, or corrective action) of the facility,
Whereas, the Grantor has elected to establish a trust to
provide (all or part of) such financial assurance for the facility identified
herein,
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee,
Now, therefore, the Grantor and the Trustee agree as follows:
Section 1. Definitions. As used in this Agreement:
A. The term "fiduciary" means any person who
exercises any power of control, management, or disposition or renders
investment advice for a fee or other compensation, direct or indirect, with
respect to any moneys or other property of this trust fund, or has any
authority or responsibility to do so, or who has any authority or responsibility
in the administration of this trust fund.
B. The term "Grantor" means the owner or operator
who enters into this Agreement and any successors or assigns of the Grantor.
C. The term "Trustee" means the Trustee who enters
into this Agreement and any successor Trustee.
Section 2. Identification of Facility and Cost Estimates.
This Agreement pertains to facility(ies) and cost
estimates identified on attached Schedule A.
(NOTE: On Schedule A, for each facility list, as applicable,
the permit number, name, address, and the current closure, post-closure,
corrective action cost estimates, or portions thereof, for which financial
assurance is demonstrated by this Agreement.)
Section 3. Establishment of Fund. The Grantor and the Trustee
hereby establish a trust fund, the "Fund," for the benefit of the
Department of Environmental Quality, Commonwealth of Virginia. The Grantor and
the Trustee intend that no third party have access to the Fund except as herein
provided. The Fund is established initially as property consisting of cash or
securities, which are acceptable to the Trustee, described in Schedule B
attached hereto. Such property and any other property subsequently transferred
to the Trustee is referred to as the fund, together with all earnings and
profits thereon, less any payments or distributions made by the Trustee
pursuant to this Agreement. The Fund will be held by the Trustee, IN TRUST, as
hereinafter provided. The Trustee undertakes no responsibility for the amount
or adequacy of, nor any duty to collect from the Grantor, any payments to
discharge any liabilities of the Grantor established by the Commonwealth of
Virginia's Department of Environmental Quality.
Section 4. Payment for (Closure, Post-Closure Care, or
Corrective Action). The Trustee will make such payments from the Fund as the
Department of Environmental Quality, Commonwealth of Virginia will direct, in
writing, to provide for the payment of the costs of (closure, post-closure
care, corrective action) of the facility covered by this Agreement. The Trustee
will reimburse the Grantor or other persons as specified by the Department of
Environmental Quality, Commonwealth of Virginia, from the Fund for (closure,
post-closure care, corrective action) expenditures in such amounts as the
Department of Environmental Quality will direct, in writing. In addition, the
Trustee will refund to the Grantor such amounts as the Department of
Environmental Quality specifies in writing. Upon refund, such funds will no
longer constitute part of the Fund as defined herein.
Section 5. Payments Comprising the Fund. Payments made to the
Trustee for the fund will consist of cash or securities acceptable to the
Trustee.
Section 6. Trustee Management. The Trustee will invest and
reinvest the principal and income of the Fund and keep the Fund invested as a
single fund, without distinction between principal and income, in accordance
with investment guidelines and objectives communicated in writing to the
Trustee from time to time by the Grantor, subject, however, to the provisions
of this Section. In investing, reinvesting, exchanging, selling and managing
the Fund, the Trustee or any other fiduciary will discharge his duties with
respect to the trust fund solely in the interest of the beneficiary and with
the care, skill, prudence, and diligence under the circumstances then
prevailing which persons of prudence, acting in a like capacity and familiar
with such matters, would use in the conduct of any enterprise of a like
character and with like aims; except that:
A. Securities or other obligations of the Grantor, or any
other owner or operator of the facility, or any of their affiliates as defined
in the Investment Company Act of 1940, as amended, 15 USC § 80a-2(a), will not
be acquired or held, unless they are securities or other obligations of the
federal or a state government;
B. The Trustee is authorized to invest the Fund in time or
demand deposits of the Trustee, to the extent insured by an agency of the
federal or state government; and
C. The Trustee is authorized to hold cash awaiting investment
or distribution uninvested for a reasonable time and
without liability for the payment of interest thereon.
Section 7. Commingling and Investment. The Trustee is
expressly authorized in its discretion:
A. To transfer from time to time any or all of the assets of
the Fund to any common, commingled or collective trust fund created by the
Trustee in which the Fund is eligible to participate subject to all of the
provisions thereof, to be commingled with the assets of other trusts
participating herein. To the extent of the equitable share of the Fund in any
such commingled trust, such commingled trust will be part of the Fund; and
B. To purchase shares in any investment company registered
under the Investment Company Act of 1940, 15 USC § 80a-1 et seq., of one which
may be created, managed, underwritten, or to which investment advice is
rendered or the shares of which are sold by the Trustee. The Trustees may vote
such shares in its discretion.
Section 8. Express Powers of Trustee. Without in any way
limiting the powers and discretions conferred upon the Trustee by the other
provisions of this Agreement or by law, the Trustee is expressly authorized and
empowered:
A. To sell, exchange, convey, transfer or otherwise dispose of
any property held by it, by private contract or at public auction. No person
dealing with the Trustee will be bound to see to the application of the
purchase money or to inquire into the validity or expediency of any such sale
or other dispositions;
B. To make, execute, acknowledge and deliver any and all
documents of transfer and conveyance and any and all other instruments that may
be necessary or appropriate to carry out the powers herein granted;
C. To register any securities held in the fund in its own name
or in the name of a nominee and to hold any security in bearer form or in book
entry, or to combine certificates representing such securities with certificates
of the same issue held by the Trustee in other fiduciary capacities, or to
deposit or arrange for the deposit of such securities in a qualified central
depository even though, when so deposited, such securities may be merged and
held in bulk in the name of the nominee of such depository with other
securities deposited therein by another person, or to deposit or arrange for
the deposit of any securities issued by the United State government, or any
agency or instrumentality thereof with a Federal Reserve Bank, but the books
and records of the Trustee will at all times show that all such securities are
part of the Fund;
D. To deposit any cash in the fund in interest-bearing
accounts maintained or savings certificates issued by the Trustee, in its separate
corporate capacity, or in any other banking institution affiliated with the
Trustee, to the extent insured by an agency of the Federal or State government;
and
E. To compromise or otherwise adjust all claims in favor of or
against the Fund.
Section 9. Taxes and Expenses. All taxes of any kind that may
be assessed or levied against or in respect of the Fund and all brokerage
commissions incurred by the Fund will be paid from the Fund. All other expenses
incurred by the Trustee in connection with the administration of this Trust,
including fees for legal services rendered to the Trustee, the compensation of
the Trustee to the extent not paid directly by the Grantor, and all other
proper charges and disbursements of the Trustee will be paid from the Fund.
Section 10. Annual Valuation. The Trustee will annually, at
the end of the month coincident with or preceding the anniversary date of
establishment of the Fund, furnish the Grantor and to the director of the
Department of Environmental Quality, Commonwealth of Virginia, a statement
confirming the value of the Trust. Any securities in the Fund will be valued at
market value as of no more than 30 days prior to the date of the statement. The
failure of the Grantor to object in writing to the Trustee within 90 days after
the statement has been furnished to the Grantor and the director of the
Department of Environmental Quality, Commonwealth of Virginia will constitute a
conclusively binding assent by the Grantor, barring the Grantor from asserting
any claim or liability against the Trustee with respect to matters disclosed in
the statement.
Section 11. Advice of Counsel. The Trustee may from time to
time consult with counsel, who may be counsel to the Grantor, with respect to
any question arising as to the construction of this Agreement or any action to
be taken hereunder. The Trustee will be fully protected, to the extent
permitted by law, in acting upon the advice of counsel.
Section 12. Trustee Compensation. The Trustee will be
entitled to reasonable compensation for its services as agreed upon in writing
from time to time with the Grantor.
Section 13. Successor Trustee. The Trustee may resign or the
Grantor may replace the Trustee, but such resignation or replacement shall not
be effective until the Grantor has appointed a successor trustee and this
successor accepts the appointment. The successor trustee shall have the same
powers and duties as those conferred upon the Trustee hereunder. Upon
acceptance of the appointment by the successor trustee, the Trustee will
assign, transfer and pay over to the successor trustee the funds and properties
then constituting the Fund. If for any reason the grantor cannot or does not
act in the event of the resignation of the Trustee, the Trustee may apply to a
court of competent jurisdiction for the appointment of a successor trustee or
for instructions. The successor trustee and the date on which he assumes
administration of the trust will be specified in writing and sent to the
Grantor, the director of the Department of Environmental Quality, Commonwealth
of Virginia, and the present trustees by certified mail 10 days before such
change becomes effective. Any expenses incurred by the Trustee as a result of
any of the acts contemplated by this section will be paid as provided in Part
IX.
Section 14. Instructions to the Trustee. All orders, requests
and instructions by the Grantor to the Trustee will be in writing, signed by
such persons as are designated in the attached Exhibit A or such other
designees as the grantor may designate by amendment to Exhibit A. The Trustee
will be fully protected in acting without inquiry in accordance with the
Grantor's orders, requests and instructions. All orders, requests, and
instructions by the Director of the Department of Environmental Quality,
Commonwealth of Virginia, to the Trustee will be in writing, signed by the
Director and the Trustee will act and will be fully protected in acting in
accordance with such orders, requests and instructions. The Trustee will have
the right to assume, in the absence of written notice to the contrary, that no
event constituting a change or a termination of the authority of any person to
act on behalf of the Grantor or the Commonwealth of Virginia's Department of
Environmental Quality hereunder has occurred. The Trustee will have no duty to
act in the absence of such orders, requests and instructions from the Grantor
and/or the Commonwealth of Virginia's Department of Environmental Quality,
except as provided for herein.
Section 15. Notice of Nonpayment. The Trustee will notify the
Grantor and the Director of the Department of Environmental Quality,
Commonwealth of Virginia, by certified mail within 10 days following the
expiration of the 30-day period after the anniversary of the establishment of the
Trust, if no payment is received from the Grantor during that period. After the
pay-in period is completed, the Trustee is not required to send a notice of
nonpayment.
Section 16. Amendment of Agreement. This Agreement may be
amended by an instrument in writing executed by the Grantor, the Trustee, and
the Director of the Department of Environmental Quality, Commonwealth of
Virginia, or by the Trustee and the Director of the Department of Environmental
Quality, Commonwealth of Virginia, if the Grantor ceases to exist.
Section 17. Irrevocability and Termination. Subject to the
right of the parties to amend this Agreement as provided in Section 16, this
Trust will be irrevocable and will continue until terminated at the written
agreement of the Grantor, the Trustee, and the Director of the Department of
Environmental Quality, Commonwealth of Virginia, or by the Trustee and the
Director if the Grantor ceases to exist. Upon termination of the Trust, all
remaining trust property, less final trust administration expenses, will be
delivered to the Grantor.
Section 18. Immunity and Indemnification. The Trustee will
not incur personal liability of any nature in connection with any act or
omission, made in good faith, in the administration of this Trust, or in carrying
out any directions by the Grantor or the Director of the Department of
Environmental Quality, Commonwealth of Virginia, issued in accordance with this
Agreement. The Trustee will be indemnified and saved harmless by the Grantor or
from the Trust Fund, or both, from and against any personal liability to which
the Trustee may be subjected by reason of any act or conduct in its official
capacity, including all expenses reasonably incurred in its defense in the
event the Grantor fails to provide such defense.
Section 19. Choice of Law. This Agreement will be
administered, construed and enforced according to the laws of the Commonwealth
of Virginia.
Section 20. Interpretation. As used in the Agreement, words
in the singular include the plural and words in the plural include the
singular. The descriptive headings for each section of this Agreement will not
affect the interpretation of the legal efficacy of this Agreement.
In witness whereof the parties have caused this Agreement to
be executed by their respective officers duly authorized and their corporate
seals to be hereunto affixed and attested as of the date first above written.
The parties below certify that the wording of this Agreement is identical to
the wording specified in 9VAC20-70-290 A of the Financial Assurance Regulations
for Solid Waste Disposal, Transfer and Treatment Facilities, as such
regulations were constituted on the date shown immediately below.
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(Signature of Grantor)
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By: (Title)
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(Date)
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Attest:
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(Title)
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(Date)
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(Seal)
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(Signature of Trustee)
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By
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Attest:
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(Title)
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(Seal)
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(Date)
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Certification of Acknowledgment:
COMMONWEALTH OF VIRGINIA
STATE OF __________
CITY/COUNTY OF __________
On this date, before me personally came (owner or operator)
to me known, who being by me duly sworn, did depose and say that she/he resides
at (address), that she/he is (title) of (corporation), the corporation
described in and which executed the above instrument; that she/he knows the
seal of said corporation; that the seal affixed to such instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that she/he signed her/his name thereto by like order.
(Signature of Notary Public)
B. Wording of surety bond guaranteeing performance or
payment.
(NOTE: instructions in parentheses are to be replaced with
the relevant information and the parentheses deleted.)
PERFORMANCE OR PAYMENT BOND
Date bond executed: __________
Effective date: __________
Principal: (legal name and business address) _____________
Type of organization: (insert "individual,"
"joint venture," "partnership," or "corporation")
_____________
State of incorporation: __________
Surety: (name and business address) _____________
Name, address, permit number, if any, and (closure,
post-closure care, or corrective action) cost estimate for the facility:
_____________
Penal sum of bond: $________
Surety's bond number: __________
Know all men by these present, That we, the Principal and
Surety hereto are firmly bound to the Department of Environmental Quality,
Commonwealth of Virginia, (hereinafter called the Department) in the above
penal sum for the payment of which we bind ourselves, our heirs, executors,
administrators, successors and assigns, jointly and severally; provided that,
where the Surety(ies) are corporations acting as
co-sureties, we, the Sureties, bind ourselves in such sum "jointly and
severally" only for the purpose of allowing a joint action or actions
against any or all of us, and for all other purposes each Surety binds itself,
jointly and severally with the Principal, for the payment of each sum only as
is set forth opposite the name of such Surety, but if no limit of liability is
indicated, the limit of liability shall be the full amount of the penal sum.
Whereas, said Principal is required to have a permit from the
Department of Environmental Quality, Commonwealth of Virginia, in order to own
or operate the (solid, regulated medical, yard) waste management facility
identified above, and
Whereas, said Principal is required to provide financial
assurance for (closure, post-closure care, corrective action) of the facility
as a condition of the permit or an order issued by the department,
Now, therefore the conditions of this obligation are such
that if the Principal shall faithfully perform (closure, post-closure care,
corrective action), whenever required to do so, of the facility identified
above in accordance with the order or the (closure, post-closure care,
corrective action) plan submitted to receive said permit and other requirements
of said permit as such plan and permit may be amended or renewed pursuant to
all applicable laws, statutes, rules, and regulations, as such laws, statutes,
rules, and regulations may be amended,
Or, if the Principal shall faithfully perform (closure,
post-closure care, corrective action) following an order to begin (closure,
post-closure care, corrective action) issued by the Commonwealth of Virginia's
Department of Environmental Quality or by a court, or following a notice of
termination of the permit,
Or, if the Principal shall provide alternate financial
assurance as specified in the Department's regulations and obtain the director's
written approval of such assurance, within 90 days of the date notice of
cancellation is received by the Director of the Department of Environmental
Quality from the Surety, then this obligation will be null and void, otherwise
it is to remain in full force and effect for the life of the management
facility identified above.
The Surety shall become liable on this bond obligation only
when the Principal has failed to fulfill the conditions described above. Upon
notification by the Director of the Department of Environmental Quality,
Commonwealth of Virginia, that the Principal has been found in violation of the
requirements of the Department's regulations, the Surety must either perform
(closure, post-closure care, corrective action) in accordance with the approved
plan and other permit requirements or forfeit the (closure, post-closure care,
corrective action) amount guaranteed for the facility to the Commonwealth of
Virginia.
Upon notification by the Director of the Department of
Environmental Quality, Commonwealth of Virginia, that the Principal has been
found in violation of an order to begin (closure, post-closure care, corrective
action), the Surety must either perform (closure, post-closure care, corrective
action) in accordance with the order or forfeit the amount of the (closure,
post-closure care, corrective action) guaranteed for the facility to the
Commonwealth of Virginia.
The Surety hereby waives notification of amendments to the
(closure, post-closure care, corrective action) plans, orders, permit,
applicable laws, statutes, rules, and regulations and agrees that such
amendments shall in no way alleviate its obligation on this bond.
For purposes of this bond, (closure, post-closure care,
corrective action) shall be deemed to have been completed when the Director of
the Department of Environmental Quality, Commonwealth of Virginia, determines
that the conditions of the approved plan have been met.
The liability of the Surety shall not be discharged by any
payment or succession of payments hereunder, unless and until such payment or
payments shall amount in the aggregate to the penal sum of the bond, but the
obligation of the Surety hereunder shall not exceed the amount of said penal
sum unless the Director of the Department of Environmental Quality,
Commonwealth of Virginia, should prevail in an action to enforce the terms of
this bond. In this event, the Surety shall pay, in addition to the penal sum
due under the terms of the bond, all interest accrued from the date the
Director of the Department of Environmental Quality, Commonwealth of Virginia,
first ordered the Surety to perform. The accrued interest shall be calculated
at the judgment rate of interest pursuant to § 6.2-302 of the Code of Virginia.
The Surety may cancel the bond by sending written notice of
cancellation to the owner or operator and to the Director of the Department of
Environmental Quality, Commonwealth of Virginia, provided, however, that
cancellation cannot occur (1) during the 120 days beginning on the date of receipt
of the notice of cancellation by the director as shown on the signed return
receipt; or (2) while an enforcement action is pending.
The Principal may terminate this bond by sending written
notice to the Surety, provided, however, that no such notice shall become
effective until the Surety receives written authorization for termination of
the bond by the Director of the Department of Environmental Quality,
Commonwealth of Virginia.
In witness whereof, the Principal and Surety have executed
this Performance Bond and have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby certify that
they are authorized to execute this surety bond on behalf of the Principal and
Surety and I hereby certify that the wording of this surety bond is identical
to the wording specified in 9VAC20-70-290 B of the Financial Assurance
Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities as
such regulations were constituted on the date shown immediately below.
Principal
Signature(s): __________
Name(s) and Title(s): (typed)__________
Corporate Surety
Name and Address: __________
State of Incorporation: __________
Liability Limit: $___
Signature(s): __________
Name(s) and Title(s): (typed)__________
Corporate Seal:
C. Wording of irrevocable standby letter of credit.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses deleted.)
IRREVOCABLE STANDBY LETTER OF CREDIT
Director
Department of Environmental Quality
P.O. Box 10009 1105
Richmond, Virginia 23240-0009 23218
Dear (Sir or Madam):
We hereby establish our Irrevocable Letter of Credit No......
in your favor at the request and for the account of (owner's or operator's name
and address) up to the aggregate amount of (in words) U.S. dollars $____,
available upon presentation of
1. Your sight draft, bearing reference to this letter of
credit No ____ together with
2. Your signed statement declaring that the amount of the
draft is payable pursuant to regulations issued under the authority of the
Department of Environmental Quality, Commonwealth of Virginia.
The following amounts are included in the amount of this
letter of credit: (Insert the facility permit number, if any, name and address,
and the closure, post-closure care, corrective action cost estimate, or
portions thereof, for which financial assurance is demonstrated by this letter
of credit.)
This letter of credit is effective as of (date) and will
expire on (date at least one year later), but such expiration date will be
automatically extended for a period of (at least one year) on (date) and on
each successive expiration date, unless, at least 120 days before the current
expiration date, we notify you and (owner or operator's name) by certified mail
that we decide not to extend the Letter of Credit beyond the current expiration
date. In the event you are so notified, unused portion of the credit will be
available upon presentation of your sight draft for 120 days after the date of
receipt by you as shown on the signed return receipt or while a compliance
procedure is pending, whichever is later.
Whenever this letter of credit is drawn on under and in
compliance with the terms of this credit, we will duly honor such draft upon
presentation to us, and we will pay to you the amount of the draft promptly and
directly.
I hereby certify that I am authorized to execute this letter
of credit on behalf of (issuing institution) and I hereby certify that the
wording of this letter of credit is identical to the wording specified in
9VAC20-70-290 C of the Financial Assurance Regulations for Solid Waste
Disposal, Transfer, and Treatment Facilities as such regulations were
constituted on the date shown immediately below.
Attest:
(Print name and title of official of issuing institution)
(Date)
This credit is subject to (insert "the most recent
edition of the Uniform Customs and Practice for Documentary Credits, published
by the International Chamber of Commerce," of "the Uniform Commercial
Code.")
D. Assignment of certificate of deposit account.
City _______________________ ____________, 20___
FOR VALUE RECEIVED, the undersigned assigns all right, title
and interest to the Virginia Department of Environmental Quality, Commonwealth
of Virginia, and its successors and assigns the Virginia Department of
Environmental Quality the principal amount of the instrument, including all
monies deposited now or in the future to that instrument, indicated below:
() If checked here, this assignment includes all interest now
and hereafter accrued.
Certificate of Deposit Account No. _____________________
This assignment is given as security to the Virginia
Department of Environmental Quality in the amount of _______________________
Dollars ($_____________).
Continuing Assignment. This assignment shall continue to
remain in effect for all subsequent terms of the automatically renewable
certificate of deposit.
Assignment of Document. The undersigned also assigns any
certificate or other document evidencing ownership to the Virginia Department
of Environmental Quality.
Additional Security. This assignment shall secure the payment
of any financial obligation of the (name of owner/operator) to the Virginia
Department of Environmental Quality for ("closure" "post closure
care" "corrective action") at the (facility name and permit
number) located (physical address)
Application of Funds. The undersigned agrees that all or any
part of the funds of the indicated account or instrument may be applied to the
payment of any and all financial assurance obligations of (name of owner/operator)
to the Virginia Department of Environmental Quality for ("closure"
"post closure care" "corrective action") at the (facility
name and address). The undersigned authorizes the Virginia Department of
Environmental Quality to withdraw any principal amount on deposit in the
indicated account or instrument including any interest, if indicated, and to
apply it in the Virginia Department of Environmental Quality's discretion to
fund ("closure" "post closure care" "corrective action")
at the (facility name) or in the event of (owner or operator's) failure to
comply with the Virginia Financial Assurance Regulations for Solid Waste
Disposal, Transfer, and Treatment Facilities, 9VAC20-70. The undersigned agrees
that the Virginia Department of Environmental Quality may withdraw any
principal and/or interest from the indicated account or instrument without
demand or notice. (The undersigned) agrees to assume any and all loss of
penalty due to federal regulations concerning the early withdrawal of funds.
Any partial withdrawal of principal or interest shall not release this
assignment.
The party or parties to this Assignment set their hand or
seals, or if corporate, has caused this assignment to be signed in its
corporate name by its duly authorized officers and its seal to be affixed by
authority of its Board of Directors the day and year above written.
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SEAL
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(Owner)
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(print owner's name)
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SEAL
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(Owner)
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(print owner's name)
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THE FOLLOWING SECTION IS TO BE COMPLETED BY THE BRANCH OR
LENDING OFFICE:
The signature(s) as shown above compare correctly with the
name(s) as shown on record as owner(s) of the Certificate of Deposit indicated
above. The above assignment has been properly recorded by placing a hold in the
amount of $ _______________________ for the benefit of the Department of
Environmental Quality.
() If checked here, the accrued interest on the Certificate
of Deposit indicated above has been maintained to capitalize versus being
mailed by check or transferred to a deposit account.
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(Signature)
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(Date)
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(print name)
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(Title)
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E. Wording of certificate of insurance.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses deleted.)
CERTIFICATE OF INSURANCE
Name and Address of Insurer (herein called the
"Insurer"): __________
_____________
Name and Address of Insured (herein called the
"Insured"): __________
_____________
_____________
Facilities Covered: (List for each facility: Permit number
(if applicable), name, address and the amount of insurance for closure,
post-closure care, or corrective action. (These amounts for all facilities
covered shall total the face amount shown below.))
Face Amount: $___
Policy Number: __________
Effective Date: __________
The Insurer hereby certifies that it has issued to the
Insured the policy of insurance identified above to provide financial assurance
for (insert "closure," "post-closure care,"
"corrective action") for the facilities identified above. The Insurer
further warrants that such policy conforms in all respects with the
requirements of 9VAC20-70-190 of the Financial Assurance Regulations for Solid
Waste Disposal, Transfer, and Treatment Facilities ("Regulations")
(9VAC20-70), as such regulations were constituted on the date shown immediately
below. It is agreed that any provision of the policy inconsistent with such regulations
is hereby amended to eliminate such inconsistency.
Whenever requested by the Director, the Insurer agrees to
furnish to the Director a duplicate original of the policy listed above,
including all endorsements thereon.
I hereby certify that the wording of this certificate is
identical to the wording specified in 9VAC20-70-290 E of the Financial
Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment
Facilities as such regulations were constituted on the date shown immediately below.
(Authorized signature for Insurer)
(Name of person signing)
(Title of person signing)
Signature of witness or notary:
(Date)
F. Wording of letter from chief financial officer.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses removed.)
Director
Department of Environmental Quality
P.O. Box 10009 1105
Richmond, Virginia 23240-0009 23218
Dear (Sir, Madam):
I am the chief financial officer of (name and address of
firm). This letter is in support of this firm's use of the financial test to
demonstrate financial assurance, as specified in 9VAC20-70-200 of the Financial
Assurance Regulations for Solid Waste Disposal, Transfer, and Treatment
Facilities (9VAC20-70) ("Regulations").
(Fill out the following four paragraphs regarding solid
waste, regulated medical waste, yard waste composting, hazardous waste,
underground injection (regulated under the federal program in 40 CFR Part 144,
or its equivalent in other states), petroleum underground storage (9VAC25-590),
above ground storage facilities (9VAC25-640) and PCB storage (regulated under
40 CFR Part 761) facilities and associated cost estimates. If your firm has no
facilities that belong in a particular paragraph, write "None" in the
space indicated. For each facility, include its name, address, permit number,
if any, and current closure, post-closure care, corrective action or any other
environmental obligation cost estimates. Identify each cost estimate as to
whether it is for closure, post-closure care, corrective action or other
environmental obligation.)
1. This firm is the owner or operator of the following
facilities for which financial assurance is demonstrated through the corporate
test specified in 9VAC20-70-200 or its equivalent in other applicable
regulations. The current cost estimates covered by the test are shown for each
facility:
2. This firm guarantees, through the corporate guarantee
specified in 9VAC20-70-220, the financial assurance for the following
facilities owned or operated by subsidiaries of this firm. The current cost
estimates so guaranteed are shown for each facility:
3. This firm, as owner or operator or guarantor, is
demonstrating financial assurance for the following facilities through the use
of a financial test. The current cost estimates covered by such a test are
shown for each facility:
4. This firm is the owner or operator of the following waste
management facilities for which financial assurance is not demonstrated through
the financial test or any other financial assurance mechanism. The current cost
estimates for the facilities which are not covered by such financial assurance
are shown for each facility:
This firm (insert "is required" or "is not
required") to file a Form 10K with the Securities and Exchange Commission
(SEC) for the latest fiscal year.
The fiscal year of this firm ends on (month, day). The
figures for the following items marked with an asterisk are derived from this
firm's independently audited, year-end financial statements for the latest
completed fiscal year, ended (date).
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1) Sum of current closure, post-closure care, corrective
action or other environmental obligations cost estimates (total of all cost
estimates shown in the four paragraphs above.)
$_______________
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2) Tangible net worth*
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$_______________
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3) Total assets located in the United
States*
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$_______________
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YES NO
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Line 2 exceeds line 1 by at least $10 million?
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____
____
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Line 3 exceeds line 1 by at least $10 million?
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____
____
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(Fill in Alternative I if the criteria of 9VAC20-70-200 1 a
(1) are used. Fill in Alternative II if the criteria of 9VAC20-70-200 1 a (2)
are used. Fill in Alternative III if the criteria of 9VAC20-70-200 1 a (3) are
used.)
ALTERNATIVE I
Current bond rating of this firm's senior unsubordinated debt
and name of rating service
Date of issuance of bond
Date of maturity of bond
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ALTERNATIVE II
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4) Total liabilities* (if any portion of the closure,
post-closure care, corrective action or other environmental obligations cost
estimates is included in total liabilities, you may deduct the amount of that
portion from this line and add that amount to line 5.)
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$______
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5) Net worth*
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$______
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Is line 4 divided by line 5 less than 1.5?
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YES
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NO
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ALTERNATIVE III
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6) Total liabilities*
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$______
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7) The sum of net income plus depreciation, depletion, and
amortization minus $10 million*
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$______
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Is line 7 divided by line 6 less than 0.1?
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YES
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NO
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I hereby certify that the wording of this letter is identical
to the wording in 9VAC20-70-290 F of the Financial Assurance Regulations for
Solid Waste Disposal, Transfer, and Treatment Facilities as such regulations
were constituted on the date shown immediately below.
(Signature)
(Name)
(Title)
(Date)
G. Wording of the local government letter from chief
financial officer.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses deleted.)
LETTER FROM CHIEF FINANCIAL OFFICER
I am the chief financial officer of (insert: name and address
of local government owner or operator, or guarantor). This letter is in support
of the use of the financial test to demonstrate financial responsibility for
("closure care" "post-closure care" "corrective action
costs") arising from operating a solid waste management facility.
The following facilities are assured by this financial test:
(List for each facility: the name and address of the facility, the permit
number, the closure, post-closure and/or corrective action costs, whichever
applicable, for each facility covered by this instrument).
This owner's or operator's financial statements were prepared
in conformity with Generally Accepted Accounting Principles for governments and
have been audited by ("an independent certified public accountant"
"Auditor of Public Accounts"). The owner or operator has not received
an adverse opinion or a disclaimer of opinion from ("an independent
certified public accountant" "Auditor of Public Accounts") on
its financial statements for the latest completed fiscal year.
This owner or operator is not currently in default on any
outstanding general obligation bond. Any outstanding issues of general
obligation, if rated, have a Moody's rating of Aaa, Aa, A, or Baa or a Standard and Poor's rating of AAA, AA, A
or BBB; if rated by both firms, the bonds have a Moody's rating of Aaa, Aa, A or Baa and a Standard
and Poor's rating of AAA, AA, A, or BBB.
The fiscal year of this owner or operator ends on (month,
day). The figures for the following items marked with the asterisk are derived
from this owner's or operator's independently audited, year-end financial
statements for the latest completed fiscal year ended (date).
(Please complete Alternative I or Alternative II.)
(Fill in Alternative I if the criteria in 9VAC20-70-210 1 a
(1) are used. Fill in Alternative II if the criteria of 9VAC20-70-210 1 a (2)
are used.)
ALTERNATIVE I—BOND RATING TEST
The details of the issue date, maturity, outstanding amount,
bond rating, and bond rating agency of all outstanding general obligation bond
issues that are being used by (name of local government owner or operator, or
guarantor) to demonstrate financial responsibility are as follows: (complete
table):
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Issue Date
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Maturity Date
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Outstanding Amount
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Bond Rating
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Rating Agency
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______
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______
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_______
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_____
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______
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______
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______
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_______
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_____
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______
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______
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______
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_______
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_____
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______
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______
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______
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_______
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_____
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______
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______
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______
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_______
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_____
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______
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______
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______
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_______
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_____
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______
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Any outstanding issues of general obligation bonds, if rated,
have a Moody's rating of Aaa, Aa,
A, or Baa or a Standard and Poor's rating of AAA, AA, A or BBB; if rated by
both firms, the bonds have a Moody's rating of Aaa, Aa, A or Baa and a Standard and Poor's rating of AAA, AA, A
or BBB.
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1) Sum of current closure, post-closure and corrective
action cost estimates (total of all cost estimates listed above)
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$________
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*2) Operating Deficit
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(a) latest completed fiscal year (insert year)
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$________
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(b) previous fiscal year (insert year)
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$________
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*3) Total Revenue
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(a) latest completed fiscal year (insert year)
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$________
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(b) previous fiscal year (insert year)
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$________
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4) Other self-insured environmental costs
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(a) Amount of aggregate underground injection control
systems financial assurance insured by a financial test under 40 CFR 144.62
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$________
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(b) Amount of annual underground storage tank aggregate
coverage insured by a financial test under 40 CFR Part 280 and 9VAC25-590
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$________
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(c) Amount of aggregate costs associated with PCB storage
facilities insured by a financial test under 40 CFR Part 761
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$________
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(d) Amount of annual aggregate hazardous waste financial
assurance insured by a financial test under 40 CFR Parts 264 and 265 and
9VAC20-60
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$________
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(e) Total of lines 4(a) through 4(d)
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$________
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YES
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NO
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5) Is (line 2a / line 3a) <
0.05?
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____
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____
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6) Is (line 2b / line 3b) <
0.05?
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____
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____
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7) Is (line 1 + line 4e) <= (line 3a x 0.43)?
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____
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____
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8) Is (line 1 + line 4e) <= (line 3a x 0.20)?
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____
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____
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If the answer to line 7 is yes and the answer to line 8 is
no, please attach documentation from the agent/trustee /issuing institution
stating the current balance of the account/fund /irrevocable letter of credit
as of the latest fiscal reporting year to this form as required by
9VAC20-70-210.
ALTERNATIVE II—FINANCIAL RATIO TEST
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1) Sum of current closure, post-closure and corrective
action cost estimates
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$________
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*2) Operating Deficit
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(a) latest completed fiscal year (insert year)
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$________
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(b) previous fiscal year (insert year)
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$________
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*3) Total Revenue
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(a) latest completed fiscal year (insert year)
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$________
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(b) previous fiscal year (insert year)
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$________
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4) Other self-insured environmental costs
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(a) Amount of aggregate underground injection control
systems financial assurance insured by a financial test under 40 CFR 144.62
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$________
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(b) Amount of annual underground storage tank aggregate
coverage insured by a financial test under 40 CFR Part 280 and 9VAC25-590
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$________
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(c) Amount of aggregate costs associated with PCB storage
facilities insured by a financial test under 40 CFR Part 761
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$________
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(d) Amount of annual aggregate hazardous waste financial
assurance insured by a financial test under 40 CFR Parts 264 and 265 and
9VAC20-60
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$________
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(e) Total of lines 4(a) through 4(d)
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$________
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*5) Cash plus marketable securities
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$________
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*6) Total Expenditures
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$________
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*7) Annual Debt Service
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$________
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YES
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NO
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8) Is (line 2a / line 3a) < 0.05?
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____
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____
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9) Is (line 2b / line 3b) < 0.05?
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____
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____
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10) Is (line 1 + line 4e) <= (line 3a x 0.43)?
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____
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____
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11) Is (line 5 / line 6) >= 0.05?
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____
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____
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12) Is (line 7 / line 6) <= 0.20?
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____
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____
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13) Is (line 1 + line 4e) <= (line 3a x.20)
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____
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____
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If the answer to line 13 is no, please attach documentation
from the agent/trustee/issuing institution stating the current balance of the
account/fund/irrevocable letter of credit as of the latest fiscal reporting
year to this form as required by 9VAC20-70-210.
I hereby certify that the wording of this letter is identical
to the wording in 9VAC20-70-290 G of the Financial Assurance Regulations for
Solid Waste Disposal, Transfer, and Treatment Facilities as such regulations
were constituted on the date shown immediately below.
(Signature)
(Name of person signing)
(Title of person signing)
(Date)
H. Certification of funding.
CERTIFICATION OF FUNDING
I certify the following information details the current plan
for funding closure and post closure at the solid waste management facilities
listed below.
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Facility Permit #
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Source for funding closure and post closure
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Name of Locality or Corporation:
_______________________________________
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Signature
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Printed Name
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Date
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Title
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I. Certification of escrow/sinking fund /irrevocable letter
of credit balance.
CERTIFICATION OF ESCROW/SINKING FUND BALANCE OR AMOUNT OF
IRREVOCABLE LETTER OF CREDIT
I am the Chief Financial Officer of (name of locality) and
hereby certify that as of (date) the current balance in the restricted sinking
(type of fund) fund or the escrow account or the amount of the irrevocable
letter of credit restricted to landfill closure costs is $_____________
The calculation used to determine the amount required to be
funded is as follows:
(Show the values that were used in the following formula:
(CE * CD) - E
Where CE is the current closure cost estimate, CD is the
percentage of landfill capacity used to date, and E is current year expenses
for closure.)
Therefore, this account has been funded or an irrevocable
letter of credit has been obtained in accordance with the Financial Assurance
Regulations for Solid Waste Disposal, Transfer and Treatment Facilities,
9VAC20-70.
(Signature)
(Name of person signing)
(Title of person signing)
(Date)
J. Wording of corporate guarantee.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses removed.)
CORPORATE GUARANTEE
Guarantee made this (date) by (name of guaranteeing entity),
a business corporation organized under the laws of the state of (insert name of
state), herein referred to as guarantor. This guarantee is made on behalf of
the (owner or operator) of (business address), which is (one of the following:
"our subsidiary"; "a subsidiary of (name and address of common
parent corporation) of which guarantor is a subsidiary"; or "an
entity with which the guarantor has a substantial business relationship, as
defined in Part I of the Virginia Financial Assurance Regulations for Solid
Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70)") to the
Virginia Department of Environmental Quality ("Department"), obligee, on behalf of our subsidiary (owner or operator) of
(business address).
Recitals
1. Guarantor meets or exceeds the financial test criteria in
9VAC20-70-200 and agrees to comply with the reporting requirements for
guarantors as specified in 9VAC20-70-220 of the Financial Assurance Regulations
for Solid Waste Disposal, Transfer, and Treatment Facilities
("Regulations").
2. (Owner or operator) owns or operates the following (solid,
regulated medical, yard) waste management facility(ies)
covered by this guarantee: (List for each facility: name, address, and permit
number, if any. Indicate for each whether guarantee is for closure,
post-closure care, corrective action or other environmental obligations.)
3. "Closure plans", "post-closure care
plans" and "corrective action plans" as used below refer to the
plans maintained as required by the Solid Waste Management Regulations
(9VAC20-81), or the Regulated Medical Waste Management Regulations
(9VAC20-120).
4. For value received from (owner or operator), guarantor
guarantees to the Department that in the event that (owner or operator) fails
to perform (insert "closure," "post-closure care," or
"corrective action") of the above facility(ies)
in accordance with the closure or post-closure care plans and other
(requirements of the) permit or (the order) whenever required to do so, the
guarantor shall do so or establish a trust fund as specified in 9VAC20-70-140
in the name of (owner or operator) in the amount of the current cost estimates.
5. Guarantor agrees that if, at the end of any fiscal year
before termination of this guarantee, the guarantor fails to meet the financial
test criteria, guarantor shall send within 90 days, by certified mail, notice
to the director and to (owner or operator) that he intends to provide alternate
financial assurance as specified in Article 4 of Part III of the Regulations,
in the name of (owner or operator). Within 120 days after the end of such
fiscal year, the guarantor shall establish such financial assurance unless
(owner or operator) has done so.
6. The guarantor agrees to notify the director by certified
mail, of a voluntary or involuntary proceeding under Title 11 (Bankruptcy),
U.S. Code, naming guarantor as debtor, within 10 days after commencement of the
proceeding.
7. Guarantor agrees that within 30 days after being notified
by the director of a determination that guarantor no longer meets the financial
test criteria or that he is disallowed from continuing as a guarantor of
closure, post-closure care, or corrective action, he shall establish alternate
financial assurance as specified in Article 4 of Part III of the Regulations,
in the name of (owner or operator) unless (owner or operator) has done so.
8. Guarantor agrees to remain bound under this guarantee
notwithstanding any or all of the following: amendment or modification of the
closure, post-closure or corrective action plan, amendment or modification of
the permit, amendment or modification of the order, the extension or reduction
of the time of performance of closure, post-closure, or corrective action or
any other modification or alteration of an obligation of the owner or operator
pursuant to the (Solid Waste Management Regulations or Regulated Medical Waste
Management Regulations or § 10.1-1454.1 of the Code of Virginia).
9. Guarantor agrees to remain bound under this guarantee for
so long as (owner or operator) shall comply with the applicable financial
assurance requirements of Article 4 of Part III of the Regulations for the
above-listed facilities, except as provided in paragraph 10 of this agreement.
10. (Insert the following language if the guarantor is (a) a
direct or higher-tier corporate parent, or (b) a firm whose parent corporation
is also the parent corporation of the owner or operator:) Guarantor may
terminate this guarantee by sending notice by certified mail to the Director of
the Department of Environmental Quality and to the (owner or operator),
provided that this guarantee may not be terminated unless and until (the owner
or operator) obtains and the director approves, alternate (closure,
post-closure, corrective action) coverage complying with the requirements of
9VAC20-70. (Insert the following language if the guarantor is a firm qualifying
as a guarantor due to its "substantial business relationship" with
the owner or operator:) Guarantor may terminate this guarantee 120 days following
the receipt of notification, through certified mail, by the director and by
(the owner or operator).
11. Guarantor agrees that if (owner or operator) fails to
provide alternate financial assurance as specified in Article 4 of Part III of
the Regulations, and obtain written approval of such assurance from the
director within 90 days after a notice of cancellation by the guarantor is
received by the director from guarantor, guarantor shall provide such alternate
financial assurance in the name of (owner or operator).
12. Guarantor expressly waives notice of acceptance of this
guarantee by the Department or by (owner or operator). Guarantor also expressly
waives notice of amendments or modifications of the closure and/or post-closure
plan and of amendments or modifications of the facility permit(s).
I hereby certify that the wording of this guarantee is
identical to the wording in 9VAC20-70-290 J of the Financial Assurance
Regulations for Solid Waste Disposal, Transfer, and Treatment Facilities as such
regulations were constituted on the date shown immediately below.
(Name of guarantor)
Effective date: __________
(Authorized signature for guarantor) __________
(Name of person signing) __________
(Title of person signing) __________
Signature of witness or notary: __________
K. Wording of local government guarantee.
(NOTE: Instructions in parentheses are to be replaced with
the relevant information and the parentheses removed.)
LOCAL GOVERNMENT GUARANTEE
Guarantee made this (date) by (name of guaranteeing entity),
a local government created under the laws of the state of Virginia, herein
referred to as guarantor. This guarantee is made on behalf of the (owner or
operator) of (address), to the Virginia Department of Environmental Quality ("Department"),
obligee.
Recitals
1. Guarantor meets or exceeds the financial test criteria in
9VAC20-70-210 and agrees to comply with the reporting requirements for
guarantors as specified in 9VAC20-70-230 of the Financial Assurance Regulations
for Solid Waste Disposal, Treatment and Transfer Facilities
("Regulations").
2. (Owner or operator) owns or operates the following (solid,
regulated medical, yard) waste management facility(ies)
covered by this guarantee: (List for each facility: name, address, and permit
number, if any. Indicate for each whether guarantee is for closure,
post-closure care, corrective action or other environmental obligations.)
3. "Closure plans" and "post-closure care
plans" as used below refer to the plans maintained as required by the
Solid Waste Management Regulations (9VAC20-81).
4. For value received from (owner or operator), guarantor
guarantees to the Department that in the event that (owner or operator) fails
to perform (insert "closure," "post-closure care," or
"corrective action") of the above facility(ies)
in accordance with the closure or post-closure care plans and other
(requirements of the) permit or (the order) whenever required to do so, the
guarantor shall do so or establish a trust fund as specified in 9VAC20-70-150 in
the name of (owner or operator) in the amount of the current cost estimates.
5. Guarantor agrees that if, at the end of any fiscal year
before termination of this guarantee, the guarantor fails to meet the financial
test criteria, guarantor shall send within 90 days, by certified mail, notice
to the director and to (owner or operator) that he intends to provide alternate
financial assurance as specified in Article 4 of Part III of the Regulations,
in the name of (owner or operator). Within 120 days after the end of such
fiscal year, the guarantor shall establish such financial assurance unless
(owner or operator) has done so.
6. The guarantor agrees to notify the director by certified
mail, of a voluntary or involuntary proceeding under Title 11 (bankruptcy),
U.S. Code, naming guarantor as debtor, within 10 days after commencement of the
proceeding.
7. Guarantor agrees that within 30 days after being notified
by the director of a determination that guarantor no longer meets the financial
test criteria or that he is disallowed from continuing as a guarantor of
closure, post-closure care, or corrective action, he shall establish alternate
financial assurance as specified in Article 4 of Part III of the Regulations in
the name of (owner or operator) unless (owner or operator) has done so.
8. Guarantor agrees to remain bound under this guarantee
notwithstanding any or all of the following: amendment or modification of the
closure or post-closure plan, amendment or modification of the closure or
post-closure plan, amendment or modification of the permit, amendment or
modification of the order, the extension or reduction of the time of
performance of the closure or post-closure, or any other modification or
alteration of an obligation of the owner or operator pursuant to the Virginia
(Solid Waste Management or Regulated Medical Waste Management) Regulations.
9. Guarantor agrees to remain bound under this guarantee for
so long as (owner or operator) shall comply with the applicable financial
assurance requirements of Article 4 of Part III of the Regulations for the
above-listed facilities, except as provided in paragraph 10 of this agreement.
10. Guarantor may terminate this guarantee by sending notice
by certified mail to the Director of the Department of Environmental Quality
and to the (owner or operator), provided that this guarantee may not be
terminated unless and until (the owner or operator) obtains and the director
approves, alternate (closure, post-closure, corrective action,) coverage
complying with the requirements of 9VAC20-70.
11. Guarantor agrees that if (owner or operator) fails to
provide alternate financial assurance as specified in Article 4 of Part III of
the Regulations, and obtain written approval of such assurance from the
director with 90 days after a notice of cancellation by the guarantor is
received by the director from guarantor, guarantor shall provide such alternate
financial assurance in the name of (owner or operator).
12. Guarantor expressly waives notice of acceptance of this
guarantee by the Department or by (owner or operator). Guarantor also expressly
waives notice of amendments or modifications of the closure and/or post-closure
plan and of amendments or modifications of the facility permit(s).
I hereby certify that the wording of this guarantee is
identical to the wording specified in 9VAC20-70-290 K of the Financial
Assurance Regulations for Solid Waste Disposal, Transfer and Treatment
Facilities as such regulations were constituted on the date shown immediately
below.
(Name of guarantor) __________
Effective date: __________
(Authorized signature for guarantor) __________
(Name of person signing) __________
(Title of person signing) __________
Signature of witness or notary: __________
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 registration fee shall be at least 1.0% of the
estimated cost of the remediation at the site, not to exceed the statutory
maximum. 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 10150
1104, Richmond, VA 23240 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.
9VAC20-170-190. Permit fee requirements.
A. Purpose. The purpose of this section is to establish schedules
and procedures pertaining to the payment and collection of fees from any owner
or operator of a receiving facility seeking a new permit by rule or seeking a
modification to an existing permit by rule. It also establishes schedules and
procedures pertaining to the payment and collection of inspection fees from any
owner or operator of a receiving facility.
B. Payment, deposit and use of fees.
1. Due date. All permit certification fees are due on the
submittal day of the certification package. The inspection fees for the first
year or portion of a year are due as part of the permit certification.
Thereafter, all inspection fees are due March 1.
2. Method of payment. Fees shall be paid by check, draft or
postal money order made payable to "Treasurer of Virginia/DEQ", and
shall be sent to the Department of Environmental Quality, Receipts Control,
P.O. Box 10150 1104, Richmond, VA 23240 23218.
3. Incomplete payments. All incomplete payments will be deemed nonpayments.
4. Late payment. No certifications will be deemed complete
until the department receives proper payment. In the event that the inspection
fee is not received by the department on or prior to March 1, the owner or
operator of the facility will be considered to be operating an unpermitted
facility.
5. Fee schedules. Each certification for a permit by rule or
each certification for a modification to a permit by rule is a separate action
and shall be assessed a separate fee. The amount of the permit certification
fee is based on the costs associated with the permitting program required by
this chapter. An inspection fee will be collected annually and its amount is
based on the costs associated with the inspections program conducted by the
department on at least a quarterly basis. The fee schedules are shown in the
following table.
|
Type of Action
|
Fee
|
|
Initial certification
|
$6,200
|
|
Modification
with a closure plan amendment
without a closure plan amendment
|
$2,500
$1,250
|
|
Inspections
|
$10,000
|
Part V
Monthly Fees Collected By Receiving
Facilities
9VAC20-170-195. Monthly fee requirements.
A. Purpose and application.
1. The purpose of this section is to establish schedules and
procedures pertaining to the payment and collection of waste monthly fees from
any owner or operator of any ship, barge or other vessel by the receiving
facility.
2. The fees shall be based on the accurate weight of waste
received at the receiving facility. If scales are unavailable, the maximum
volumetric capacity of the container multiplied by 0.50 tons per cubic yard may
be used as an alternative to accurate weighing of the waste. If the volumetric
alternative is used, accurate and complete records of the volume of each
container of such waste must be maintained in addition to the calculated weight
records describe in this part.
3. If a ship, barge or other vessel that off-loads no more than
50 tons of waste per month in total at all facilities, then the owner or
operator of the ship, barge, or other vessel is exempt from the assessment and
payment of operating fees and related requirements set out in this section,
except for the maintenance of records.
B. Payment, deposit and use of fees.
1. Due date. The owner or operator of the ship, barge, or other
vessel shall pay, and the receiving facility shall collect, the correct fees
for all waste off-loading at the facility at or before the time it is
off-loaded. The owner or operator of the receiving facility shall be the
responsible steward for the funds collected and shall forward to the department
the total amounts due from all ships, barges or other vessels off-loading at
the facility on a monthly basis. All payments for waste received at a facility
during the month shall be received by the department no later than the
fifteenth of the succeeding month.
2. Method of payment.
a. The owner or operator of the receiving facility shall send
a payment transmittal letter to the Department of Environmental Quality
regional office for the area in which the receiving facility is located. The
letter shall contain the name of the facility, the period that the payment
covers, and a summary of weights of wastes received at the facility for the
period, including those calculated in accordance with subdivision A 2 of this
section. Attached to the letter shall be a log of the waste received showing
the date; time of weighing or measurement; weight or volume and calculated
weight of each container received; the name, address, and telephone number of
the owner or operator of the ship, barge, or other vessel off-loading the
container; the name, address and telephone number of the person actually
weighing the waste container or verifying the volume; a certification of the
accuracy of the scales based on a calibration, including the name, address and
telephone number of the person certifying the accuracy of the scale. A
facsimile of the check, draft, or money order submitted under subdivision B 2 b
of this section shall also be attached. The owner or operator of the receiving
facilities shall keep accurate accounts of all payments of monthly fees by
ship, barge or vessel owners and make them available to the department for
audit; however, he need not send this information with the aforementioned
payment unless requested to do so by the department.
b. Fees shall be paid by check, draft or postal money order
made payable to "Treasurer of Virginia/DEQ", and shall be sent to the
Department of Environmental Quality, Receipts Control, P. O. Box 10150 1104,
Richmond, VA 23240 23218. A copy of the transmittal letter
required in subdivision B 2 a of this section, not to
include the attachments, shall be included with the check.
c. Scales shall be accurate to measurements of plus or minus
40 pounds and shall be calibrated at least every 180 days. Scales for weighing
containers must be located at the receiving facility, unless the monthly fee is
determined by the maximum volumetric capacity of the container. Any failure to
provide immediate access by Department of Environmental Quality personnel or
agents to records or scale equipment during business hours shall be a violation
of these regulations.
3. Late payment and incomplete payments. A late fee of 18.0%
per annum, compounded daily, shall accrue immediately after a payment is due
but not received by VDEQ. A facility shall be in arrears when a payment has not
been received by the Department of Environmental Quality by the date it is due.
In the event that a facility fails to submit the required monthly fee, the
owner or operator of the facility will be considered to be operating an
unpermitted facility and shall be required to either obtain a new permit by
rule in accordance with 9VAC20-170-180 A or close the facility in accordance
with Article 2 (9VAC20-170-120 et seq.) of Part III of this chapter.
4. Fee schedules. The fee for each ton or partial ton of waste
(the weight of the waste subject to the fee does not include the weight of the
empty container itself) off-loaded at the facility shall be $1.00.
5. The fees collected shall be deposited into a separate
account with the Virginia Waste Management Board Permit Program Fund and shall
be treated as are other moneys in that fund except that they shall only be used
for the purposes of Article 7.1 (§ 10.1-1454.1) of Chapter 14 of Title 10.1 of
the Code of Virginia, and for funding purposes authorized by the article.
Authorized funding purposes under the article include the administrative and
enforcement costs associated with such operations including, but not limited
to, the inspection and monitoring of such ships, barges or other vessels to
ensure compliance with the article, and activities authorized by § 10.1-1454.1
to abate pollution caused by barging of waste, to improve water quality, or for
other waste-related purposes.
C. Right of entry, inspection and audit. Upon presentation of
appropriate credentials and upon the consent of the owner or custodian, the
director of the Department of Environmental Quality or his designee, in
addition to the routine inspection of the facility, shall have the right to
enter, inspect and audit the records of the receiving facility. The owner or
operator of the facility shall provide complete and timely access, during
business hours, to all associated equipment, records and facility personnel.
APPENDIX
III.
(NOTE: Instructions in brackets are to be replaced with the
relevant information and the brackets deleted.)
IRREVOCABLE STANDBY LETTER OF CREDIT.
Director
Department of Environmental Quality
P.O. Box 10009 1105
Richmond, Virginia 23240-0009 23218
Dear [Sir or Madam]:
We hereby establish our Irrevocable Letter of Credit
No.[....] in your favor at the request and for the account of [vessel owner's
or operator's name and address] up to the aggregate amount of [in words] U.S.
dollars [$....], available upon presentation of
1. Your sight draft, bearing reference to this letter of credit
No.[....] together with
2. Your signed statement declaring that the amount of the draft
is payable pursuant to regulations issued under the authority of the Department
of Environmental Quality, Commonwealth of Virginia.
The following vessels are included in the amount of this
letter of credit: (See attached Schedule of Covered Vessels).
This letter of credit is effective as of [date] and will
expire on [date at least one year later], but such expiration date will be
automatically extended for a period of [at least one year] on [date] and on
each successive expiration date, unless, at least 120 days before the current
expiration date, we notify you and [owner or operator's name] by certified mail
that we decide not to extend the Letter of Credit beyond the current expiration
date. In the event you are so notified, unused portion of the credit will be
available upon presentation of your sight draft for 120 days after the date of
receipt by you as shown on the signed return receipt; in addition, the unused
portion of the credit will be available for an additional 90 days from the
stated expiration date upon presentation of your sight draft and your signed
statement declaring that there is a compliance procedure pending.
Whenever this letter of credit is drawn on under and in
compliance with the terms of this credit, we will duly honor such draft upon
presentation to us, and we will pay to you the amount of the draft promptly and
directly.
I hereby certify that I am authorized to execute this letter
of credit on behalf of [issuing institution] and that the wording of this
letter of credit is identical to the wording specified in the relevant
regulations of the Department of Environmental Quality, Commonwealth of
Virginia.
Attest:
[Signature and title of official of issuing institution]
[Date]
This credit is subject to [insert "the most recent
edition of the Uniform Customs and Practice for Documentary Credits, published
by the International Chamber of Commerce," or "the Uniform Commercial
Code"].
SCHEDULE A
IDENTIFICATION OF COVERED VESSELS
Letter of credit [insert letter of credit number] is
applicable to the following vessels:
Vessel Name
Gross tons
Owner
Operator
APPENDIX
VIII.
(NOTE: Instructions in brackets are to be replaced with the
relevant information and the brackets deleted.)
IRREVOCABLE STANDBY LETTER OF CREDIT FOR THIRD PARTY LIABILITY
COVERAGE
[Name and Address of Issuing Institution]
Director
Department of Department of Environmental Quality
629 East Main Street
P.O. Box 10009 1105
Richmond, Virginia 23240-0009 23218
Dear Sir or Madam:
We hereby establish our Irrevocable Standby Letter of Credit
No.__________ in favor of any and all third-party liability claimants, at the
request and for the account of [insert owner's or operator's name and address]
for third-party liability awards or settlements up to U.S. dollars [$ ______]
per occurrence and the annual aggregate amount of U.S. dollars [$ _____], for
accidental occurrences available upon presentation of a signed draft, bearing
reference to this letter of credit No. __________, and
1. A signed certificate reading as follows:
Certification of Valid Claim
The undersigned, as parties [insert principal and insert name
and address of third-party claimants], hereby certify that the claim of bodily
injury and/or property damage arising from a waste deposit into navigable
waters by a covered vessel transporting solid and/or regulated medical waste
should be paid in the amount of $ ______. We hereby certify that the claim does
not apply to any of the following:
(a) Bodily injury or property damage for which insert
principal is obligated to pay damages by reason of the assumption of liability
in a contract or agreement. This exclusion does not apply to liability for
damages that insert principal would be obligated to pay in the absence of the
contract or agreement.
(b) Any obligation of insert principal under a workers'
compensation, disability benefits, or unemployment compensation law or any
similar law.
(c) Bodily injury to:
(1) An employee of insert principal arising from, and in the
course of, employment by insert principal; or
(2) The spouse, child, parent, brother or sister of that
employee as a consequence of, or arising from, and in the course of employment
by insert principal. This exclusion applies:
(A) Whether insert principal may be liable as an employer or
in any other capacity; and
(B) To any obligation to share damages with or repay another
person who shall pay damages because of the injury to persons identified in
paragraphs (1) and (2).
Signatures
Principal
Signatures
Claimant(s)
or
2. A valid final court order establishing a judgement against the principal for bodily injury or
property damage arising from a waste deposit into navigable waters from a
covered vessel transporting solid and/or regulated medical waste.
The provisions of this letter of credit are applicable to the
vessels indicated on the attached Schedule of Covered Vessels.
This letter of credit is effective as of date and shall
expire on date at least one year later, but such expiration date shall be
automatically extended for a period of at least one year on date and on each
successive expiration date, unless, at least 120 days before the current
expiration date, we notify you, the director and owner's or operator's name by
certified mail that we have decided not to extend this letter of credit beyond
the current expiration date.
Whenever this letter of credit is drawn on under and in
compliance with the terms of this credit, we shall duly honor such draft upon
presentation to us.
In the event that this letter of credit is used in
combination with another mechanism for liability coverage, this letter of
credit shall be considered insert "primary" or "excess"
coverage.
We certify that the wording of this letter of credit is
identical to the wording specified in the relevant regulations of the
Department of Environmental Quality, Commonwealth of Virginia.
[Signature(s) and title(s) of official(s) of issuing
institution]
[Date]
This credit is subject to [insert "the most recent
edition of the Uniform Customs and Practice for Documentary Credits, published
by the International Chamber of Commerce" or "the Uniform Commercial
Code"].
SCHEDULE A
IDENTIFICATION OF COVERED VESSELS
Letter of credit [insert letter of credit number] is
applicable to the following vessels:
Letter of credit [insert letter of credit number] is applicable
to the following vessels:
Vessel Name
Gross tons
Owner
Operator
VA.R. Doc. No. R12-3205; Filed June 19, 2012, 9:43 a.m.
w –––––––––––––––––– w
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Final Regulation
Titles of Regulations: 12VAC30-70. Methods and
Standards for Establishing Payment Rates - Inpatient Hospital Services (amending 12VAC30-70-50).
12VAC30-80. Methods and Standards for
Establishing Payment Rates; Other Types of Care (amending 12VAC30-80-20, 12VAC30-80-200).
Statutory Authority: § 32.1-325 of the Code of
Virginia.
Effective Date: August 16, 2012.
Agency Contact: Carla Russell, Provider Reimbursement
Division, Department of Medical Assistance Services, 600 East Broad Street,
Suite 1300, Richmond, VA 23219, telephone (804) 225-4586, FAX (805) 786-1680,
or email carla.russell@dmas.virginia.gov.
Summary:
The amendments change the reimbursement for outpatient
rehabilitation agencies and comprehensive outpatient rehabilitation facilities
(CORFs) from a cost-based methodology to the new fee schedule methodology.
CORFs are being removed from the list of providers that are reimbursed on a
cost basis in 12VAC30-80-200
and DMAS will implement a statewide fee schedule methodology for outpatient
rehabilitation agencies.
The amendments also reduce reimbursement to long-stay
hospitals (12VAC30-70-50).
Currently, these providers are reimbursed based on the methodology in effect
for all hospitals prior to the implementation of the diagnosis related groups
prospective reimbursement methodology. The changes to the old methodology
include the reduction of the "incentive plan," the elimination of an
additional 2.0% annually added to the escalator, and modification of the
disproportionate share hospital (DSH) utilization threshold percentage.
Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.
12VAC30-70-50. Hospital reimbursement system.
The reimbursement system for hospitals includes the following
components:
A. Hospitals were grouped by classes according to number of
beds and urban versus rural. (Three groupings for rural - 0 to 100 beds, 101 to
170 beds, and over 170 beds; four groupings for urban - 0 to 100, 101 to 400,
401 to 600, and over 600 beds.) Groupings are similar to those used by the
Health Care Financing Administration (HCFA) in determining routine cost
limitations.
B. Prospective reimbursement ceilings on allowable operating
costs were established as of July 1, 1982, for each grouping. Hospitals with a
fiscal year end after June 30, 1982, were subject to the new reimbursement
ceilings.
1. The calculation of the initial group ceilings as of
July 1, 1982, was based on available, allowable cost data for hospitals in
calendar year 1981. Individual hospital operating costs were advanced by a
reimbursement escalator from the hospital's year end to July 1, 1982. After
this advancement, the operating costs were standardized using SMSA wage
indices, and a median was determined for each group. These medians were
readjusted by the wage index to set an actual cost ceiling for each SMSA.
Therefore, each hospital grouping has a series of ceilings representing one of
each SMSA area. The wage index is based on those used by HCFA in computing its
Market Basket Index for routine cost limitations.
2. Effective July 1, 1986, and until June 30, 1988,
providers subject to the prospective payment system of reimbursement had their
prospective operating cost rate and prospective operating cost ceiling computed
using a new methodology. This method uses an allowance for inflation based on
the percent of change in the quarterly average of the Medical Care Index of the
Chase Econometrics - Standard Forecast determined in the quarter in which the
provider's new fiscal year began.
3. The prospective operating cost rate is based on the
provider's allowable cost from the most recent filed cost report, plus the
inflation percentage add-on.
4. The prospective operating cost ceiling is determined
by using the base that was in effect for the provider's fiscal year that began
between July 1, 1985, and June 1, 1986. The allowance for inflation percent of
change for the quarter in which the provider's new fiscal year began is added
to this base to determine the new operating cost ceiling. This new ceiling was
effective for all providers on July 1, 1986. For subsequent cost reporting
periods beginning on or after July 1, 1986, the last prospective operating rate
ceiling determined under this new methodology will become the base for
computing the next prospective year ceiling.
5. Effective on and after July 1, 1988, and until June
30, 1989, for providers subject to the prospective payment system, the
allowance for inflation shall be based on the percent of change in the moving
average of the Data Resources, Incorporated Health Care Cost HCFA-Type Hospital
Market Basket determined in the quarter in which the provider's new fiscal year
begins. Such providers shall have their prospective operating cost rate and
prospective operating cost ceiling established in accordance with the methodology
which became effective July 1, 1986. Rates and ceilings in effect July 1, 1988,
for all such hospitals shall be adjusted to reflect this change.
6. Effective on or after July 1, 1989, for providers
subject to the prospective payment system, the allowance for inflation shall be
based on the percent of change in the moving average of the Health Care Cost
HCFA-Type Hospital Market Basket, adjusted for Virginia, as developed by Data
Resources, Incorporated, determined in the quarter in which the provider's new
fiscal year begins. Such providers shall have their prospective operating cost
rate and prospective operating cost ceiling established in accordance with the
methodology which became effective July 1, 1986. Rates and ceilings in effect
July 1, 1989, for all such hospitals shall be adjusted to reflect this change.
7. Effective on and after July 1, 1992, for providers
subject to the prospective payment system, the allowance for inflation, as
described above, which became effective on July 1, 1989, shall be converted to
an escalation factor by adding two percentage points, (200 basis points) to the
then current allowance for inflation. [ Effective July 1, 2009, the
additional two percentage points shall no longer be included in
the escalation factor. ] The escalation factor shall be applied in
accordance with the inpatient hospital reimbursement methodology in effect on
June 30, 1992. On July 1, 1992, the conversion to the new escalation factor
shall be accomplished by a transition methodology which, for non-June 30 year
end hospitals, applies the escalation factor to escalate their payment rates
for the months between July 1, 1992, and their next fiscal year ending on or
before May 31, 1993.
Effective July 1, 2010, through June 30, 2012, the escalation
factor shall be zero. In addition, ceilings shall remain at the same level as
the ceilings for long stay hospitals with fiscal year's end of June 30, 2010.
Effective July 1, 2009, the escalation factor shall be equal
to the allowance for inflation.
8. The new method will still require comparison of the
prospective operating cost rate to the prospective operating ceiling. The
provider is allowed the lower of the two amounts subject to the lower of cost
or charges principles.
C. Subsequent to June 30, 1992, the group ceilings shall not
be recalculated on allowable costs, but shall be updated by the escalator
factor.
D. Prospective rates for each hospital shall be based upon
the hospital's allowable costs plus the escalator factor, or the appropriate
ceilings, or charges; whichever is lower. Except to eliminate costs that are
found to be unallowable, no retrospective adjustment shall be made to
prospective rates.
Capital and education costs approved pursuant to PRM-15 (§
400) shall be considered as pass throughs and not
part of the calculation. Capital cost is reimbursed the percentage of allowable
cost specified in 12VAC30-70-271.
E. An incentive plan should be established whereby a hospital
will be paid on a sliding scale, percentage for percentage, up to 25% 10.5%
of the difference between allowable operating costs and the appropriate per
diem group ceiling when the operating costs are below the ceilings. The
incentive should be calculated based on the annual cost report. Effective for
dates of service July 1, 2010, through September 30, 2010, the incentive plan
shall be eliminated.
F. Disproportionate share hospitals defined.
The following criteria shall be met before a hospital is
determined to be eligible for a disproportionate share payment adjustment.
1. Criteria.
a. A Medicaid inpatient utilization rate in excess of 8%
10.5% for hospitals receiving Medicaid payments in the Commonwealth, or
a low-income patient utilization rate exceeding 25% (as defined in the Omnibus
Budget Reconciliation Act of 1987 and as amended by the Medicare Catastrophic
Coverage Act of 1988); and
b. At least two obstetricians with staff privileges at the
hospital who have agreed to provide obstetric services to individuals entitled
to such services under a State Medicaid plan. In the case of a hospital located
in a rural area (that is, an area outside of a Metropolitan Statistical Area,
as defined by the Executive Office of Management and Budget), the term
"obstetrician" includes any physician with staff privileges at the
hospital to perform nonemergency obstetric procedures.
c. Subdivision 1 b of this subsection does not apply to a
hospital:
(1) At which the inpatients are predominantly individuals
under 18 years of age; or
(2) Which does not offer nonemergency obstetric services as of
December 21, 1987.
2. Payment adjustment.
a. Hospitals which have a disproportionately higher level of
Medicaid patients shall be allowed a disproportionate share payment adjustment
based on the type of hospital and on the individual hospital's Medicaid
utilization. There shall be two types of hospitals: (i)
Type One, consisting of state-owned teaching hospitals, and (ii) Type Two,
consisting of all other hospitals. The Medicaid utilization shall be determined
by dividing the number of utilization Medicaid inpatient days by the total
number of inpatient days. Each hospital with a Medicaid utilization of over 8.0%
10.5% shall receive a disproportionate share payment adjustment.
b. For Type One hospitals, the disproportionate share payment
adjustment shall be equal to the product of (i) the
hospital's Medicaid utilization in excess of 8.0% 10.5%, times
11, times (ii) the lower of the prospective operating cost rate or ceiling. For
Type Two hospitals, the disproportionate share payment adjustment shall be
equal to the product of (i) the hospital's Medicaid
utilization in excess of 8.0% 10.5% times (ii) the lower of the
prospective operating cost rate or ceiling.
c. No payments made under subdivision 1 or 2 of this
subsection shall exceed any applicable limitations upon such payments
established by federal law or regulations.
G. Outlier adjustments.
1. DMAS shall pay to all enrolled hospitals an outlier
adjustment in payment amounts for medically necessary inpatient hospital
services provided on or after July 1, 1991, involving exceptionally high costs
for individuals under one year of age.
2. DMAS shall pay to disproportionate share hospitals (as
defined in subsection F of this section) an outlier adjustment in payment
amounts for medically necessary inpatient hospital services provided on or
after July 1, 1991, involving exceptionally high costs for individuals under
six years of age.
3. The outlier adjustment calculation.
a. Each eligible hospital which desires to be considered for
the adjustment shall submit a log which contains the information necessary to
compute the mean of its Medicaid per diem operating cost of treating individuals
identified in subdivision 1 or 2 of this subsection. This log shall contain all
Medicaid claims for such individuals, including, but not limited to: (i) the patient's name and Medicaid identification number;
(ii) dates of service; (iii) the remittance date paid; (iv) the number of
covered days; and (v) total charges for the length of stay. Each hospital shall
then calculate the per diem operating cost (which excludes capital and
education) of treating such patients by multiplying the charge for each patient
by the Medicaid operating cost-to-charge ratio determined from its annual cost
report.
b. Each eligible hospital shall calculate the mean of its
Medicaid per diem operating cost of treating individuals identified in
subdivision 1 or 2 of this subsection.
c. Each eligible hospital shall calculate its threshold for
payment of the adjustment, at a level equal to two and one-half standard
deviations above the mean or means calculated in subdivision 3 a (ii) of this
subsection.
d. DMAS shall pay as an outlier adjustment to each eligible
hospital all per diem operating costs which exceed the applicable threshold or
thresholds for that hospital.
4. Pursuant to 12VAC30-50-100, there is no limit on length of
time for medically necessary stays for individuals under six years of age. This
section provides that consistent with 42 CFR 441.57, payment of medical
assistance services shall be made on behalf of individuals under 21 years of
age, who are Medicaid eligible, for medically necessary stays in acute care
facilities in excess of 21 days per admission when such services are rendered
for the purpose of diagnosis and treatment of health conditions identified
through a physical examination. Medical documentation justifying admission and
the continued length of stay must be attached to or written on the invoice for
review by medical staff to determine medical necessity. Medically unjustified
days in such admissions will be denied.
12VAC30-80-20. Services that are reimbursed on a cost basis.
A. Payments for services listed below shall be on the basis
of reasonable cost following the standards and principles applicable to the
Title XVIII Program with the exception provided for in subdivision D 1 d. The
upper limit for reimbursement shall be no higher than payments for Medicare
patients on a facility by facility basis in accordance with 42 CFR 447.321
and 42 CFR 447.325. In no instance, however, shall charges for beneficiaries of
the program be in excess of charges for private patients receiving services
from the provider. The professional component for emergency room physicians
shall continue to be uncovered as a component of the payment to the facility.
B. Reasonable costs will be determined from the filing of a
uniform cost report by participating providers. The cost reports are due not
later than 150 days after the provider's fiscal year end. If a complete cost
report is not received within 150 days after the end of the provider's fiscal
year, the Program shall take action in accordance with its policies to assure
that an overpayment is not being made. The cost report will be judged complete
when DMAS has all of the following:
1. Completed cost reporting form(s) provided by DMAS, with
signed certification(s);
2. The provider's trial balance showing adjusting journal
entries;
3. The provider's financial statements including, but not
limited to, a balance sheet, a statement of income and expenses, a statement of
retained earnings (or fund balance), and a statement of changes in financial
position;
4. Schedules that reconcile financial statements and trial
balance to expenses claimed in the cost report;
5. Depreciation schedule or summary;
6. Home office cost report, if applicable; and
7. Such other analytical information or supporting documents
requested by DMAS when the cost reporting forms are sent to the provider.
C. Item 398 D of the 1987 Appropriation Act (as amended),
effective April 8, 1987, eliminated reimbursement of return on equity capital
to proprietary providers.
D. The services that are cost reimbursed are:
1. Outpatient hospital services including rehabilitation
hospital outpatient services and excluding laboratory.
a. Definitions. The following words and terms when used in
this regulation shall have the following meanings when applied to emergency
services unless the context clearly indicates otherwise:
"All-inclusive" means all emergency department and
ancillary service charges claimed in association with the emergency room visit,
with the exception of laboratory services.
"DMAS" means the Department of Medical Assistance
Services consistent with Chapter 10 (§ 32.1-323 et seq.) of Title 32.1 of the
Code of Virginia.
"Emergency hospital services" means services that
are necessary to prevent the death or serious impairment of the health of the
recipient. The threat to the life or health of the recipient necessitates the
use of the most accessible hospital available that is equipped to furnish the
services.
"Recent injury" means an injury that has occurred
less than 72 hours prior to the emergency department visit.
b. Scope. DMAS shall differentiate, as determined by the
attending physician's diagnosis, the kinds of care routinely rendered in
emergency departments and reimburse for nonemergency care rendered in emergency
departments at a reduced rate.
(1) With the exception of laboratory services, DMAS shall
reimburse at a reduced and all-inclusive reimbursement rate for all services,
including those obstetric and pediatric procedures contained in 12VAC30-80-160,
rendered in emergency departments that DMAS determines were nonemergency care.
(2) Services determined by the attending physician to be
emergencies shall be reimbursed under the existing methodologies and at the
existing rates.
(3) Services performed by the attending physician that may be
emergencies shall be manually reviewed. If such services meet certain criteria,
they shall be paid under the methodology for subdivision 1 b (2) of this
subsection. Services not meeting certain criteria shall be paid under the
methodology of subdivision 1 b (1) of this subsection. Such criteria shall
include, but not be limited to:
(a) The initial treatment following a recent obvious injury.
(b) Treatment related to an injury sustained more than 72
hours prior to the visit with the deterioration of the symptoms to the point of
requiring medical treatment for stabilization.
(c) The initial treatment for medical emergencies including
indications of severe chest pain, dyspnea, gastrointestinal hemorrhage,
spontaneous abortion, loss of consciousness, status epilepticus,
or other conditions considered life threatening.
(d) A visit in which the recipient's condition requires
immediate hospital admission or the transfer to another facility for further
treatment or a visit in which the recipient dies.
(e) Services provided for acute vital sign changes as
specified in the provider manual.
(f) Services provided for severe pain when combined with one
or more of the other guidelines.
(4) Payment shall be determined based on ICD-9-CM diagnosis
codes and necessary supporting documentation.
(5) DMAS shall review on an ongoing basis the effectiveness of
this program in achieving its objectives and for its effect on recipients,
physicians, and hospitals. Program components may be revised subject to
achieving program intent, the accuracy and effectiveness of the ICD-9-CM code
designations, and the impact on recipients and providers.
c. Limitation of allowable cost. Effective for services on and
after July 1, 2003, reimbursement of Type Two hospitals for outpatient services
shall be at various percentages as noted in subdivisions 1 c (1) and (2) of
this subsection of allowable cost, with cost to be determined as provided in
subsections A, B, and C of this section. For hospitals with fiscal years that
do not begin on July 1, outpatient costs, both operating and capital, for the
fiscal year in progress on that date shall be apportioned between the time
period before and the time period after that date, based on the number of
calendar months in the cost reporting period, falling before and after that
date.
(1) Type One hospitals.
(a) Effective July 1, 2003, through June 30, 2010, hospital outpatient
operating reimbursement shall be at 94.2% of allowable cost and capital
reimbursement shall be at 90% of allowable cost.
(b) Effective July 1, 2010, through September 30, 2010,
hospital outpatient operating reimbursement shall be at 91.2% of allowable cost
and capital reimbursement shall be at 87% of allowable cost.
(c) Effective October 1, 2010, through June 30, 2011, hospital
outpatient operating reimbursement shall be at 94.2% of allowable cost and
capital reimbursement shall be at 90% of allowable cost.
(d) Effective July 1, 2011, hospital outpatient operating
reimbursement shall be at 90.2% of allowable cost and capital reimbursement
shall be at 86% of allowable cost.
(2) Type Two hospitals.
(a) Effective July 1, 2003, through June 30, 2010, hospital
outpatient operating and capital reimbursement shall be 80% of allowable cost.
(b) Effective July 1, 2010, through September 30, 2010,
hospital outpatient operating and capital reimbursement shall be 77% of
allowable cost.
(c) Effective October 1, 2010, through June 30, 2011, hospital
outpatient operating and capital reimbursement shall be 80% of allowable cost.
(d) Effective July 1, 2011, hospital outpatient operating and
capital reimbursement shall be 76% of allowable cost.
d. Payment for direct medical education costs of nursing
schools, paramedical programs and graduate medical education for interns and
residents.
(1) Direct medical education costs of nursing schools and
paramedical programs shall continue to be paid on an allowable cost basis.
(2) Effective with cost reporting periods beginning on or
after July 1, 2002, direct graduate medical education (GME) costs for interns
and residents shall be reimbursed on a per-resident prospective basis. See 12VAC30-70-281
for prospective payment methodology for graduate medical education for interns
and residents.
2. Rehabilitation agencies operated by community services
boards or comprehensive outpatient rehabilitation [ . ] For
reimbursement methodology applicable to other rehabilitation agencies, see
12VAC30-80-200. Reimbursement for physical therapy, occupational therapy, and
speech-language therapy services shall not be provided for any sums that the
rehabilitation provider collects, or is entitled to collect, from the NF or any
other available source, and provided further, that this amendment shall in no
way diminish any obligation of the NF to DMAS to provide its residents such
services, as set forth in any applicable provider agreement
a. Effective July 1, 2009, rehabilitation agencies or
comprehensive outpatient rehabilitation facilities that are operated by
community services boards or state agencies shall be reimbursed their costs.
For reimbursement methodology applicable to all other rehabilitation agencies,
see 12VAC30-80-200.
b. [ RESERVED. (Reserved.) ]
12VAC30-80-200. Prospective reimbursement for rehabilitation
agencies or comprehensive outpatient rehabilitation facilities.
A. Effective for dates of service on and after July 1,
2009, rehabilitation agencies, excluding those operated by community services
boards and state agencies, shall be reimbursed a prospective rate equal to the
lesser of the agency's fee schedule amount or billed charges per procedure. The
agency shall develop a statewide fee schedule based on CPT codes to reimburse
providers what the agency estimates they would have been paid in FY 2010 minus
$371,800. Rehabilitation agencies or comprehensive outpatient
rehabilitation facilities.
1. Effective for dates of service on and after July 1,
2009, rehabilitation agencies or comprehensive outpatient rehabilitation
facilities, excluding those operated by community services boards or state
agencies, shall be reimbursed a prospective rate equal to the lesser of the
agency's fee schedule amount or billed charges per procedure. The agency shall
develop a statewide fee schedule based on CPT codes to reimburse providers what
the agency estimates they would have been paid in FY 2010 minus $371,800.
2. (Reserved.)
B. Reimbursement for rehabilitation agencies subject to
the new fee schedule methodology.
For providers with 1. Payments for the fiscal years
that do not begin on July 1, 2009, services on or before year ending or
in progress on June 30, 2009, for the fiscal year in progress on that
date shall be settled for private rehabilitation agencies based on
the previous prospective rate methodology and the ceilings in effect for that
fiscal year as of June 30, 2009.
2. (Reserved.)
C. Rehabilitation services furnished by community service
boards or state agencies shall be reimbursed costs based on annual cost
reporting methodology and procedures.
D. C. Beginning with state fiscal years
beginning on or after July 1, 2010, rates shall be adjusted annually for
inflation using the Virginia-specific nursing home input price index contracted
for by the agency. The agency shall use the percent moving average for the
quarter ending at the midpoint of the rate year from the most recently
available index prior to the beginning of the rate year.
D. Reimbursement for physical therapy, occupational
therapy, and speech-language therapy services shall not be provided for any
sums that the rehabilitation provider collects, or is entitled to collect, from
the nursing facility or any other available source, and provided further, that
this subsection shall in no way diminish any obligation of the nursing facility
to DMAS to provide its residents such services, as set forth in any applicable
provider agreement.
E. Effective July 1, 2010, there will be no inflation
adjustment for outpatient rehabilitation facilities through June 30, 2012.
VA.R. Doc. No. R09-1968; Filed June 19, 2012, 3:43 p.m.
w –––––––––––––––––– w
TITLE 16. LABOR AND EMPLOYMENT
SAFETY AND HEALTH CODES BOARD
Final Regulation
REGISTRAR'S NOTICE:
The Safety and Health Codes Board is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4006 A 3, which excludes
regulations that consist only of changes in style or form or corrections of
technical errors. The Safety and Health Codes Board will receive, consider, and
respond to petitions by any interested person at any time with respect to
reconsideration or revision.
Title of Regulation: 16VAC25-35. Regulation
Concerning Certified Lead Contractors Notification, Lead Project Permits and
Permit Fees (amending 16VAC25-35-10 through 16VAC25-35-40).
Statutory Authority: §§ 40.1-22 (5) and 40.1-51.20
of the Code of Virginia.
Effective Date: September 15, 2012.
Agency Contact: John J. Crisanti,
Planning and Evaluation Manager, Department of Labor and Industry, Main Street
Centre, 600 East Main Street, Richmond, VA 23219, telephone (804) 786-4300, FAX
(804) 786-8418, TTY (804) 786-2376, or email john.crisanti@doli.virginia.gov.
Summary:
The amendments (i) replace the
term "certified" with "licensed," (ii) replace
"residential building" with "residential dwelling," (iii)
update references to 18VAC15-30, and (iv) change "Department of
Professional and Occupational Regulation" to "Virginia Board for
Asbestos, Lead, and Home Inspectors."
16VAC25-35-10. Definitions.
The following words and terms when used in this chapter shall
have the following meaning unless the context clearly indicates otherwise:
"Certified contractor" is defined in the
Virginia Board for Asbestos and Lead's Virginia Lead-Based Paint Activities
Regulation, 18VAC15-30-10.
"Department" means the Department of Labor and
Industry.
"Lead project" means any lead-related activity
which requires the contractor performing such activity to be licensed or
certified by the Department of Professional and Occupational Regulation
Virginia Board for Asbestos, Lead, and Home Inspectors.
"Licensed lead abatement contractor" or "lead
contractor" is defined in the Virginia Board for Asbestos, Lead, and Home
Inspectors' Lead-Based Paint Activities Regulation, 18VAC15-30-20.
"Residential building dwelling" is
defined in the Virginia Board for Asbestos and Lead's, Lead, and Home
Inspectors' Lead-Based Paint Activities Regulation, 18VAC15-30-10 18VAC15-30-20.
16VAC25-35-20. Authority and application.
A. This regulation is established in accordance with §
40.1-51.20 of the Code of Virginia.
B. This regulation shall apply to all contractors in the
performance of lead-related activities which require such contractors to be
licensed or certified by the Department of Professional and
Occupational Regulation Virginia Board for Asbestos, Lead, and Home
Inspectors.
C. This regulation shall not affect the reporting
requirements under § 40.1-51.20 C of the Code of Virginia or any other notices
or inspection requirements under any other provision of the Code of Virginia.
16VAC25-35-30. Notification and permit fee.
A. Written notification of any lead project, the contract
price of which is $2,000 or more, shall be made to the department on a
department form. Such notification shall be sent by facsimile transmission as
set out in subsection J of this section, by certified mail, or hand-delivered
to the department. Notification shall be postmarked or made at least 20 days
before the beginning of any lead project.
B. The department form shall include the following
information:
1. Name, address, telephone number, and the certification
number of each person intending to engage in a lead project.
2. Name, address, and telephone number of the owner or
operator of the facility in which the lead project is to take place.
3. Type of notification: amended, emergency, renovation or
demolition.
4. Description of facility in which the lead project is to
take place, including address, size, and number of floors.
5. Estimate of amount of lead and method of estimation.
6. Amount of the lead project fee submitted.
7. Scheduled setup date, removal date or dates, and completion
date and times during which lead-related activity will take place.
8. Name and certificate license number of the
supervisor on site.
9. Name, address, telephone number, contact person, and
landfill permit number of the waste disposal site or sites where the
lead-containing material will be disposed.
10. Detailed description of the methods to be used in
performing the lead project.
11. Procedures and equipment used to control the emission of
lead-contaminated dust, to contain or encapsulate lead-based paint, and to
replace lead-painted surfaces or fixtures in order to protect public health
during performance of the lead project.
12. If a facsimile transmission is to be made pursuant to
subsection J of this section, the credit card number, expiration date, and
signature of cardholder.
13. Any other information requested on the department form.
C. A lead project permit fee shall be submitted with the
completed project notification form. The fee shall be in accordance with the
following schedule:
1. The greater of $100 or 1.0% of the contract price, with a
maximum of $500.
2. If, at any time, the Commissioner of Labor and Industry
determines that projected revenues from lead project permit fees may exceed
projected administrative expenses related to the lead program by at least 10%,
the commissioner may reduce the minimum and maximum fees and contract price
percentage set forth in subdivision 1 of this subsection.
D. A blanket notification, valid for a period of one year,
may be granted to a contractor who enters into a contract for a lead project on
a specific site which is expected to last for one year or longer.
1. The contractor shall submit the notification required in
subsection A of this section to the department at least 20 days prior to the
start of the requested blanket notification period. The notification submitted
shall contain the following additional information:
a. The dates of work required by subdivision B 7 of this
section shall be every work day during the blanket notification period,
excluding weekends and state holidays.
b. The estimate of lead to be removed required under
subdivision B 5 of this section shall be signed by the owner and the owner's
signature authenticated by a notary.
c. A copy of the contract shall be submitted with the
notification.
2. The lead project permit fee for blanket notifications shall
be as set forth in subsection C of this section.
3. The contractor shall submit an amended notification at
least one day prior to each time the contractor will not be present at the
site. The fee for each amended notification will be $15.
4. Cancellation of a blanket notification may be made at any
time by submitting a notarized notice of cancellation signed by the owner. The
notice of cancellation must include the actual amount of lead removed and the
actual amount of payments made under the contract. The refund shall be the
difference between the original lead permit fee paid and 1.0% of the actual
amount of payments made under the contract.
E. Notification of fewer than 20 days may be allowed in case
of an emergency involving protection of life, health or property. In such
cases, notification and the lead permit fee shall be submitted within five
working days after the start of the emergency lead project. A description of
the emergency situation shall be included when filing an emergency
notification.
F. A notification shall not be effective unless a complete
form is submitted and the proper permit fee is enclosed with the completed
form. A notification made by facsimile transmission pursuant to subsection J of
this section shall not be effective if the accompanying credit card payment is
not approved.
G. On the basis of the information submitted in the lead
notification, the department shall issue a permit to the contractor within
seven working days of the receipt of a completed notification form and permit
fee.
1. The permit shall be effective for the dates entered on the
notification.
2. The permit or a copy of the permit shall be kept on site
during work on the project.
H. Amended notifications may be submitted for modifications
of subdivisions B 3 through B 11 of this section. No amendments to subdivision
B 1 or B 2 of this section shall be allowed. A copy of the original
notification form with the amended items circled and the permit number entered
shall be submitted at any time prior to the removal date on the original
notification.
1. No amended notification shall be effective if an incomplete
form is submitted or if the proper permit amendment fee is not enclosed with
the completed notification.
2. A permit amendment fee shall be submitted with the amended
notification form. The fee shall be in accordance with the following schedule:
a. For modifications to subdivisions B 3, B 4, and B 6 through
B 10 of this section, $15.
b. For modifications to subdivision B 5 of this section, the
difference between the permit fee in subsection C of this section for the
amended amount of lead and the original permit fee submitted, plus $15.
3. Modifications to the completion date may be made at any
time up to the completion date on the original notification.
4. If the amended notification is complete and the required
fee is included, the department will issue an amended permit if necessary.
I. The department must be notified prior to any cancellation.
A copy of the original notification form marked "canceled" must be
received no later than the scheduled removal date. Cancellation of a project
may also be done by facsimile transmission. Refunds of the lead project permit
fee will be made for timely cancellations when a notarized notice of
cancellation signed by the owner is submitted.
The following amounts will be deducted from the refund
payment: $15 for processing of the original notification, $15 for each
amendment filed, and $15 for processing the refund payment.
J. Notification for any lead project, emergency notification,
or amendment to notification may be done by facsimile transmission if the
required fees are paid by credit card.
16VAC25-35-40. Exemption.
No lead project fees will be required for residential buildings
dwellings. Notification for lead projects shall otherwise be in accordance
with applicable portions of this chapter.
VA.R. Doc. No. R12-3255; Filed June 15, 2012, 1:10 p.m.
Final Regulation
REGISTRAR'S NOTICE:
The Safety and Health Codes Board is claiming an exemption from the
Administrative Process Act in accordance with § 2.2-4006 A 3, which
excludes regulations that consist only of changes in style or form or
corrections of technical errors. The Safety and Health Codes Board will
receive, consider, and respond to petitions by any interested person at any
time with respect to reconsideration or revision.
Title of Regulation: 16VAC25-60. Administrative
Regulation for the Virginia Occupational Safety and Health Program (amending 16VAC25-60-190).
Statutory Authority: § 40.1-22 (5) of the Code of
Virginia.
Effective Date: September 15, 2012.
Agency Contact: John J. Crisanti,
Planning and Evaluation Manager, Department of Labor and Industry, Main Street
Centre, 600 Main Street, Richmond, VA 23219, telephone (804) 786-4300, FAX
(804) 786-8418, TTY (804) 786-2376, or email john.crisanti@doli.virginia.gov.
Summary:
The regulatory action updates the mailing address for the
Commissioner of Labor and Industry.
Part IV
Variances
16VAC25-60-190. General provisions.
A. Any employer or group of employers desiring a permanent or
temporary variance from a standard or regulation pertaining to occupational
safety and health may file with the commissioner a written application which
shall be subject to the following policies:
1. A request for a variance shall not preclude or stay a
citation or bill of complaint for violation of a safety or health standard;
2. No variances on record keeping requirements required by the
U.S. Department of Labor shall be granted by the commissioner;
3. An employer, or group of employers, who has applied for a
variance from the U.S. Department of Labor, and whose application has been denied
on its merits, shall not be granted a variance by the commissioner unless there
is a showing of changed circumstances significantly affecting the basis upon
which the variance was originally denied;
4. An employer to whom the U.S. Secretary of Labor has granted
a variance under OSHA provisions shall document this variance to the
commissioner. In such cases, unless compelling local circumstances dictate
otherwise, the variance shall be honored by the commissioner without the
necessity of following the formal requirements which would otherwise be
applicable. In addition, the commissioner will not withdraw a citation for
violation of a standard for which the Secretary of Labor has granted a variance
unless the commissioner previously received notice of and decided to honor the
variance; and
5. Incomplete applications will be returned within 30 days to
the applicant with a statement indicating the reason or reasons that the
application was found to be incomplete.
B. In addition to the information specified in 16VAC25-60-200
A and 16VAC25-60-210 A, every variance application shall contain the following:
1. A statement that the applicant has informed affected
employees of the application by delivering a copy of the application to their
authorized representative, if there is one, as well as having posted, in
accordance with 16VAC25-60-40, a summary of the application which indicates
where a full copy of the application may be examined;
2. A statement indicating that the applicant has posted, with
the summary of the application described above, the following notice:
"Affected employees or their representatives have the right to petition
the Commissioner of Labor and Industry for an opportunity to present their
views, data, or arguments on the requested variance, or they may submit their
comments to the commissioner in writing. Petitions for a hearing or written
comments should be addressed to the Commissioner of Labor and Industry, Powers-Taylor
Building, 13 South Thirteenth Street Main Street Centre, 600 East Main
Street, Suite 207, Richmond, VA 23219-4101 23219. Such
petitions will be accepted if they are received within 30 days from the posting
of this notice or within 30 days from the date of publication of the
commissioner's notice that public comments concerning this matter will be
accepted, whichever is later."
3. A statement indicating whether an application for a
variance from the same standard or rule has been made to any federal agency or
to an agency of another state. If such an application has been made, the name
and address of each agency contacted shall be included.
C. Upon receipt of a complete application for a variance, the
commissioner shall publish a notice of the request in a newspaper of statewide
circulation within 30 days after receipt, advising that public comments will be
accepted for 30 days and that an informal hearing may be requested in
conformance with subsection D of this section. Further, the commissioner may
initiate an inspection of the establishment in regard to the variance request.
D. If within 30 days of the publication of notice the
commissioner receives a request to be heard on the variance from the employer,
affected employees, the employee representative, or other employers affected by
the same standard or regulation, the commissioner will schedule a hearing with
the party or parties wishing to be heard and the employer requesting the
variance. The commissioner may also schedule a hearing upon his own motion. The
hearing will be held within a reasonable time and will be conducted informally
in accordance with §§ 2.2-4019 and 2.2-4021 of the Code of Virginia unless
the commissioner finds that there is a substantial reason to proceed under the
formal provisions of § 2.2-4020 of the Code of Virginia.
E. If the commissioner has not been petitioned for a hearing
on the variance application, a decision on the application may be made promptly
after the close of the period for public comments. This decision will be based
upon the information contained in the application, the report of any variance
inspection made concerning the application, any other pertinent staff reports,
federal OSHA comments or public records, and any written data and views
submitted by employees, employee representatives, other employers, or the
public.
F. The commissioner will grant a variance request only if it
is found that the employer has met by a preponderance of the evidence, the
requirements of either 16VAC25-60-200 B 4 or 16VAC25-60-210 B 4.
1. The commissioner shall advise the employer in writing of
the decision and shall send a copy to the employee representative if
applicable. If the variance is granted, a notice of the decision will be
published in a newspaper of statewide circulation.
2. The employer shall post a copy of the commissioner's
decision in accordance with 16VAC25-60-40.
G. Any party may within 15 days of the commissioner's
decision file a notice of appeal to the board. Such appeal shall be in writing,
addressed to the board, and include a statement of how other affected parties
have been notified of the appeal. Upon notice of a proper appeal, the
commissioner shall advise the board of the appeal and arrange a date for the
board to consider the appeal. The commissioner shall advise the employer and
employee representative of the time and place that the board will consider the
appeal. Any party that submitted written or oral views or participated in the
hearing concerning the original application for the variance shall be invited
to attend the appeal hearing. If there is no employee representative, a copy of
the commissioner's letter to the employer shall be posted by the employer in
accordance with the requirements of 16VAC25-60-40.
H. The board shall sustain, reverse, or modify the
commissioner's decision based upon consideration of the evidence in the record
upon which the commissioner's decision was made and the views and arguments
presented as provided above. The burden shall be on the party filing the appeal
to designate and demonstrate any error by the commissioner which would justify
reversal or modification of the decision. The issues to be considered by the
board shall be those issues that could be considered by a court reviewing
agency action in accordance with § 2.2-4027 of the Code of Virginia. All parties
involved shall be advised of the board's decision within 10 working days after
the hearing of the appeal.
VA.R. Doc. No. R12-3228; Filed June 15, 2012, 1:12 p.m.
Final Regulation
REGISTRAR'S NOTICE: The
following regulatory action is exempt from the Administrative Process Act in
accordance with § 2.2-4006 A 4 c of the Code of Virginia, which excludes
regulations that are necessary to meet the requirements of federal law or
regulations provided such regulations do not differ materially from those required
by federal law or regulation. In addition, the Safety and Health Codes Board is
claiming an exemption pursuant to § 2.2-4006 A 3 of the Code of Virginia, which
excludes regulations that consist only of changes in style or form or
corrections of technical errors. The Safety and Health Codes Board will
receive, consider, and respond to petitions by any interested person at any
time with respect to reconsideration or revision.
Titles of Regulations:
16VAC25-90. Federal Identical General Industry Standards (amending Appendix A to 16VAC25-90-1910.119,
16VAC25-90-1910.120, 16VAC25-90-1910.146, Appendix A to 16VAC25-90-1910.151,
16VAC25-90-1910.177, Appendix B to 16VAC25-90-1910.177, 16VAC25-90-1910.217,
16VAC25-90-1910.261, 16VAC25-90-1910.265, 16VAC25-90-1910.272,
16VAC25-90-1910.440, 16VAC25-90-1910.1003, 16VAC25-90-1910.1025,
16VAC25-90-1910.1030).
16VAC25-100. Federal Identical Shipyard Employment Standards (amending 16VAC25-100-1915.1000).
16VAC25-175. Federal Identical Construction Industry
Standards (amending Appendix A to 16VAC25-175-1926.50,
16VAC25-175-1926.62).
Statutory Authority: § 40.1-22 (5) of the Code of
Virginia; Occupational Safety and Health Act of 1970 (P.L. 91-596).
Effective Date: September 15, 2012.
Agency Contact: John J. Crisanti,
Planning and Evaluation Manager, Department of Labor and Industry, Main Street
Centre, 600 East Main Street, Richmond, VA 23219, telephone (804) 786-4300, FAX
(804) 786-8418, TTY (804) 786-2376, or email john.crisanti@doli.virginia.gov.
Summary:
Federal OSHA has made nonsubstantive
technical amendments to and has corrected typographical errors in 16 different
General Industry, Construction, and Shipyard Employment standards. The
technical amendments include updating or revising cross-references and updating
OSHA recordkeeping log numbers.
Note on Incorporation by Reference: Pursuant to § 2.2-4103
of the Code of Virginia, 29 CFR Part 1910, Occupational Safety and Health
Standards, 29 CFR Part 1915, Occupational Safety and Health Standards for
Shipyard Employment, and 29 CFR Part 1926, Safety and Health Regulations for
Construction, are declared documents generally available to the public and
appropriate for incorporation by reference. For this reason these documents
will not be printed in the Virginia Register of Regulations. A copy of each of
these documents is available for inspection at the Department of Labor and
Industry, Main Street Centre, 600 East Main Street, Richmond, Virginia 23219,
and in the office of the Registrar of Regulations, General Assembly Building,
9th and Broad Streets, Richmond, Virginia 23219.
Statement of Final Agency Action: On May 24, 2012, the
Safety and Health Codes Board adopted federal OSHA's revised final rule for
Corrections and Technical Amendments to 16 OSHA Standards as published in 76 FR
80735 through 80741 on December 27, 2011, with an effective date of September
15, 2012.
Federal Terms and State Equivalents: When the regulations
as set forth in the revised final rule for Occupational Safety and Health
Standards, Occupational Safety and Health Standards for Shipyard Employment,
and Safety and Health Regulations for Construction are applied to the
Commissioner of the Department of Labor and Industry or to Virginia employers,
the following federal terms shall be considered to read as follows:
|
Federal Terms
|
|
VOSH Equivalent
|
|
29 CFR
|
|
VOSH Standard
|
|
Assistant Secretary
|
|
Commissioner of Labor and Industry
|
|
Agency
|
|
Department
|
|
December 27, 2011
|
|
September 15, 2012
|
VA.R. Doc. No. R12-3252; Filed June 15, 2012, 1:14 p.m.
Final Regulation
REGISTRAR'S NOTICE:
The following regulatory action is exempt from the Administrative Process Act
in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which
excludes regulations that are necessary to meet the requirements of federal law
or regulations provided such regulations do not differ materially from those
required by federal law or regulation. In addition, the Safety and Health Codes
Board is claiming an exemption pursuant to § 2.2-4006 A 3 of the Code of
Virginia, which excludes regulations that consist only of changes in style or
form or corrections of technical errors. The Safety and Health Codes Board will
receive, consider, and respond to petitions by any interested person at any
time with respect to reconsideration or revision.
Title of Regulation:
16VAC25-90. Federal Identical General Industry Standards (amending 16VAC25-90-1910.102).
Statutory Authority: § 40.1-22 (5) of the Code of
Virginia; Occupational Safety and Health Act of 1970 (P.L. 91-596).
Effective Date: September 15, 2012.
Agency Contact: John J. Crisanti,
Planning and Evaluation Manager, Department of Labor and Industry, Main Street
Centre, 600 East Main Street, Richmond, VA 23219, telephone (804) 786-4300, FAX
(804) 786-8418, TTY (804) 786-2376, or email john.crisanti@doli.virginia.gov.
Summary:
Federal OSHA has revised its Acetylene Standard for general
industry by updating a reference to a standard published by a
standards-developing organization and the Virginia regulation is amended
accordingly.
Note on Incorporation by Reference: Pursuant to
§ 2.2-4103 of the Code of Virginia, 29 CFR Part 1910, Occupational Safety
and Health Standards, is declared a document generally available to the public
and appropriate for incorporation by reference. For this reason the document
will not be printed in the Virginia Register of Regulations. A copy this
document is available for inspection at the Department of Labor and Industry,
Main Street Centre, 600 East Main Street, Richmond, Virginia 23219, and in the
Office of the Registrar of Regulations, General Assembly Building, 9th and
Broad Streets, Richmond, Virginia 23219.
Statement of Final Agency Action: On May 24, 2012, the
Safety and Health Codes Board adopted federal OSHA's Direct Final Rule for
Revising Standards Referenced in the Acetylene Standard, § 1910.102, as
published in 76 FR 75782 through 75786 on December 5, 2011, with an effective
date of September 15, 2012.
Federal Terms and State Equivalents: When the
regulations as set forth in the revised final rule for Occupational Safety and
Health Standards are applied to the Commissioner of the Department of Labor and
Industry or to Virginia employers, the following federal terms shall be
considered to read as follows:
|
Federal Terms
|
|
VOSH Equivalent
|
|
29 CFR
|
|
VOSH Standard
|
|
Assistant Secretary
|
|
Commissioner of Labor and Industry
|
|
Agency
|
|
Department
|
|
December 5, 2011
|
|
September 15, 2012
|
VA.R. Doc. No. R12-3253; Filed June 15, 2012, 1:15 p.m.
Final Regulation
REGISTRAR'S NOTICE:
The Safety and Health Codes Board is claiming an exemption from the
Administrative Process Act in accordance with § 2.2-4006 A 3, which
excludes regulations that consist only of changes in style or form or
corrections of technical errors. The Safety and Health Codes Board will
receive, consider, and respond to petitions by any interested person at any
time with respect to reconsideration or revision.
Titles of Regulations: 16VAC25-160. Construction
Industry Standard for Sanitation (amending 16VAC25-160-10).
16VAC25-180. Virginia Field Sanitation Standard, Agriculture (amending 16VAC25-180-10).
Statutory Authority: § 40.1-22 (5) of the Code of
Virginia.
Effective Date: September 15, 2012.
Agency Contact: John J. Crisanti,
Planning and Evaluation Manager, Department of Labor and Industry, Main Street
Centre, 600 East Main Street, Richmond, VA 23219, telephone (804) 786-4300, FAX
(804) 786-8418, TTY (804) 786-2376, or email john.crisanti@doli.virginia.gov.
Summary:
The regulatory action corrects references to the U.S.
Environmental Protection Agency's National Primary Drinking Water Regulations.
16VAC25-160-10. Construction industry sanitation standard; in
general (29 CFR 1926.51).
Note: The following standard is unique for the enforcement of
occupational safety and health within the Commonwealth of Virginia under the
jurisdiction of the VOSH Program. The existing federal OSHA standard does not
apply; it does not carry the force of law and is not printed in this volume.
(a) Water supply.
(1) Potable drinking water.
(i) Potable water shall be provided
and placed in locations readily accessible to all employees.
(ii) The water shall be suitably cool and in sufficient
amounts, taking into account the air temperature, humidity and the nature of
the work performed to meet the needs of all employees.
(iii) The water shall be dispensed in single-use drinking cups
or by fountains. The use of the common drinking cup is prohibited.
(2) Portable containers used to dispense drinking water shall
be capable of being tightly closed, and equipped with a tap. Water shall not be
dipped from containers.
(3) Any container used to distribute drinking water shall be
clearly marked as to the nature of its contents and not used for any other
purpose. Water shall not be dipped from containers.
(4) Where single service cups (to be used but once) are
supplied, both a sanitary container for the unused cups and a receptacle for
disposing of the cups shall be provided.
(5) Maintenance. Potable drinking water, toilet and handwashing facilities shall be maintained in accordance
with appropriate public health sanitation practices, and shall include the
following:
(i) Drinking water containers shall
be constructed of materials that maintain water quality;
(ii) Drinking water containers shall be refilled daily and
shall be covered; and
(iii) Drinking water containers shall be regularly cleaned.
(b) Nonpotable water.
(1) Outlets for nonpotable water,
such as water for industrial or firefighting purposes only, shall be identified
by signs meeting the requirements of Subpart G of this part
(16VAC25-175-1926.200 et seq.), to indicate clearly that the water is unsafe
and is not to be used for drinking, washing, or cooking purposes.
(2) There shall be no cross-connection, open or potential,
between a system furnishing potable water and a system furnishing nonpotable water.
(c) Toilet and handwashing
facilities.
(1) One toilet and one handwashing facility
shall be provided for each 20 employees or fraction thereof.
(2) Toilet facilities shall be adequately ventilated,
appropriately screened, have self-closing doors that can be closed and latched
from inside and shall be constructed to insure privacy.
(3) Toilet and handwashing
facilities shall be readily accessible to all employees, accessibly located and
in close proximity to each other.
(4) Toilet facilities shall be operational and maintained in a
clean and sanitary condition.
(5) The requirements of this paragraph for sanitation
facilities shall not apply to mobile crews having transportation readily
available to nearby toilet facilities.
(d) NOTE: Rescinded as being inconsistent with the more
stringent Virginia Standard.
(e) NOTE: Rescinded as being inconsistent with the more
stringent Virginia Standard.
(f) Washing facilities. Hand washing facilities shall be
refilled with potable water as necessary to ensure an adequate supply of
potable water, soap and single use towels.
(g) Revoked
(h) Waste disposal. (1) Disposal of wastes from facilities
shall not cause unsanitary conditions.
(i) Definitions.
(1) "Handwashing" facility
means a facility providing either a basin, container or outlet with an adequate
supply of potable water, soap and single use towels.
(2) "Potable water" means water that meets the
standards for drinking purposes of the state or local authority having
jurisdiction or water that meets the quality standards prescribed by the U. S.
Environmental Protection Agency's Interim National Primary
Drinking Water Regulations, published in 40 CFR Part 141.
(3) "Toilet facility" means a fixed or portable
facility designed for the containment of the products of both defecation and
urination which is supplied with toilet paper adequate to meet employee needs.
Toilet facilities include biological, chemical, flush and combustion toilets
and sanitary privies.
16VAC25-180-10. Field sanitation (29 CFR 1928.110).
Note: The following standard is unique for the enforcement of
occupational safety and health within the Commonwealth of Virginia under the
jurisdiction of the VOSH Program. The existing federal OSHA standard does not
apply; it does not carry the force of law and is not printed in this volume.
(a) Scope. This section shall apply to any agricultural
establishment where 11 or more employees are engaged on any given day in
hand-labor operations in the field. 16VAC25-180-10 (c)(1) shall apply to all
agricultural establishments regardless of the number of employees.
(b) Definitions.
"Agricultural employer" means any person,
corporation, association, or other legal entity that:
(i) Owns or operates an agricultural
establishment;
(ii) Contracts with the owner or operator of an agricultural
establishment in advance of production of the purchase of a crop and exercises
substantial control over production; or
(iii) Recruits and supervises employees or is responsible for
the management and condition of an agricultural establishment.
"Agricultural establishment" is a business
operation that uses paid employees in the production of food, fiber, or other
materials such as seed, seedlings, plants, or parts of plants.
"Hand-labor operations" means agricultural
activities or agricultural operations performed by hand or with hand tools.
Except for purposes of paragraph (c)(2)(iii) of this chapter, "hand-labor
operations" also include other activities or operations performed in
conjunction with hand labor in the field. Some examples of "hand-labor
operations" are the hand-cultivation, hand-weeding, hand-planting and
hand-harvesting of vegetables, nuts, fruits, seedlings or other crops,
including mushrooms, and the hand packing of produce into containers, whether
done on the ground, on a moving machine or in a temporary packing shed located
in the field. "Hand-labor" does not include such activities as
logging operations, the care or feeding of livestock, or hand-labor operations
in permanent structures (e.g., canning facilities or packing houses).
"Handwashing facility"
means a facility providing either a basin, container, or outlet with an
adequate supply of potable water, soap and single-use towels.
"Potable water" means water that meets the
standards of drinking purposes of the state or local authority having
jurisdiction or water that meets the quality standards prescribed by the U.S.
Environmental Protection Agency's National Interim Primary Drinking
Water Regulations, published in 40 CFR Part 141.
"Toilet facility" means a fixed or portable
facility designed for the purpose of adequate collection and containment of the
products of both defecation and urination which is supplied with toilet paper
adequate to employee needs. Toilet facility includes biological, chemical,
flush and combustion toilets and sanitary privies.
(c) Requirements. Agricultural employers shall provide the
following for employees engaged in hand-labor operations in the field, without
cost to the employee:
(1) Potable drinking water.
(i) Potable water shall be provided
and placed in locations readily accessible to all employees.
(ii) The water shall be suitably cool and in sufficient
amounts, taking into account the air temperature, humidity and the nature of
the work performed, to meet the needs of all employees.
(iii) The water shall be dispensed in single-use drinking cups
or by fountains. The use of common drinking cups or dippers is prohibited.
(2) Toilet and handwashing
facilities.
(i) One toilet facility and one handwashing facility shall be provided for each twenty (20)
employees or fraction thereof, except as stated in paragraph (c)(2)(v) of this
chapter.
(ii) Toilet facilities shall be adequately ventilated,
appropriately screened, have self-closing doors that can be closed and latched
from the inside and shall be constructed to insure privacy.
(iii) Toilet and handwashing
facilities shall be accessibly located and in close proximity to each other.
The facilities shall be located within a one-quarter-mile walk of each hand
laborer's place of work in the field.
(iv) Where due to terrain it is not feasible to locate
facilities as required above, the facilities shall be located at the point of
closest vehicular access.
(v) Toilet and handwashing
facilities are not required for employees who perform field work for a period
of three hours or less (including transportation time to and from the field)
during the day.
(3) Maintenance. Potable drinking water and toilet and handwashing facilities shall be maintained in accordance
with appropriate public health sanitation practices, including the following:
(i) Drinking water containers shall
be constructed of materials that maintain water quality, shall be refilled
daily or more often as necessary, shall be kept covered and shall be regularly
cleaned.
(ii) Toilet facilities shall be operational and maintained in
clean and sanitary condition.
(iii) Handwashing facilities shall
be refilled with potable water as necessary to ensure an adequate supply and
shall be maintained in a clean and sanitary condition; and
(iv) Disposal of wastes from facilities shall not cause
unsanitary conditions.
(4) Reasonable Use. The employer shall notify each employee of
the location of the sanitation facilities and water and shall allow each
employee reasonable opportunities during the workday to use them. The employer
also shall inform each employee of the importance of each of the following good
hygiene practices to minimize exposure to the hazards in the field of heat,
communicable diseases, retention of urine and agrichemical residues:
(i) Use the water and facilities
provided for drinking, handwashing and elimination;
(ii) Drink water frequently and especially on hot days;
(iii) Urinate as frequently as necessary;
(iv) Wash hands both before and after using the toilet; and
(v) Wash hands before eating and smoking.
(d) Dates
(1) Effective Date. This chapter shall take effect on May 30,
1987.
(2) Startup Dates. Employers must comply with the requirements
of paragraphs:
(i) Paragraph (c)(1), to provide
potable drinking water, by May 30, 1987;
(ii) Paragraph (c)(2), to provide handwashing
and toilet facilities, by July 30, 1987;
(iii) Paragraph (c)(3), to provide maintenance for toilet and handwashing facilities, by July 30, 1987; and
(iv) Paragraph (c)(4), to assure reasonable use, by July 30,
1987.
[52 F.R. 16095, May 1, 1987]
VA.R. Doc. No. R12-3254; Filed June 15, 2012, 1:16 p.m.
w –––––––––––––––––– w
TITLE 18. PROFESSIONAL AND OCCUPATIONAL
LICENSING
VIRGINIA BOARD FOR ASBESTOS, LEAD, AND HOME INSPECTORS
Final Regulation
REGISTRAR'S NOTICE:
The Board for Asbestos, Lead, and Home Inspectors is claiming an exemption from
the Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that
are necessary to conform to changes in Virginia statutory law where no agency
discretion is involved. The Board for Asbestos, Lead, and Home Inspectors will
receive, consider, and respond to petitions by any interested person at any
time with respect to reconsideration or revision.
Title of Regulation: 18VAC15-60. Mold Inspector and Remediator Regulations (repealing 18VAC15-60-10 through 18VAC15-60-390).
Statutory Authority: § 54.1-501 of the Code of
Virginia.
Effective Date: August 15, 2012.
Agency Contact: David Dick, Executive Director, Virginia
Board for Asbestos, Lead, and Home Inspectors, 9960 Mayland
Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8595, FAX (866)
350-5354, or email alhi@dpor.virginia.gov.
Summary:
Chapters 803 and 835 of the 2012 Acts of Assembly
deregulate mold remediation and mold inspection activities based on a
recommendation of Governor McDonnell's Commission on Government Reform and
Restructuring. Therefore, the Mold Inspector and Remediator
Regulations are repealed.
VA.R. Doc. No. R12-3259; Filed June 19, 2012, 1:09 p.m.
BOARD FOR BARBERS AND COSMETOLOGY
Final Regulation
REGISTRAR'S NOTICE:
The Board for Barbers and Cosmetology is claiming an exemption from the
Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that
are necessary to conform to changes in Virginia statutory law where no agency
discretion is involved. The Board for Barbers and Cosmetology will receive,
consider, and respond to petitions by any interested person at any time with
respect to reconsideration or revision.
Title of Regulation: 18VAC41-30. Hair Braiding
Regulations (repealing 18VAC41-30-10 through 18VAC41-30-250).
Statutory Authority: § 54.1-201 of the Code of
Virginia.
Effective Date: August 15, 2012.
Agency Contact: William H. Ferguson, II, Executive
Director, Board for Barbers and Cosmetology, 9960 Mayland
Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8590, FAX (804)
527-4295, or email barbercosmo@dpor.virginia.gov.
Summary:
Chapters 803 and 835 of the 2012 Acts of Assembly
deregulate hair braiding based on a recommendation of Governor McDonnell's
Commission on Government Reform and Restructuring. Therefore, the Hair Braiding
Regulations are repealed.
VA.R. Doc. No. R12-3260; Filed June 19, 2012, 1:09 p.m.
BOARD FOR GEOLOGY
Final Regulation
REGISTRAR'S NOTICE:
Enactments 38 through 43 of Chapters 803 and 835 of the 2012 Acts of Assembly
merged the Board for Professional Soil Scientists and Wetland Professionals
with the Board for Geology to create the Board for Professional Soil
Scientists, Wetland Professionals, and Geologists. This regulatory action is
excluded from the Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that
are necessary to conform to changes in Virginia statutory law where no agency
discretion is involved. The Board for Professional Soil Scientists, Wetland
Professionals, and Geologists will receive, consider, and respond to petitions
by any interested person at any time with respect to reconsideration or
revision.
Title of Regulation: 18VAC70-11. Public Participation
Guidelines (repealing 18VAC70-11-10 through 18VAC70-11-110).
Statutory Authority: §§ 2.2-4007.02 and 54.1-201 of
the Code of Virginia.
Effective Date: August 15, 2012.
Agency Contact: David Dick, Executive Director, Board
for Geology, 9960 Mayland Drive, Suite 400, Richmond,
VA 23233, telephone (804) 367-8595, FAX (866) 350-5354, or email geology@dpor.virginia.gov.
Summary:
Chapters 803 and 835 of the 2012 Acts of Assembly merged
the Board for Geology with the Board for Professional Soil Scientists and
Wetland Professionals effective July 1, 2012. The Public Participation
Guidelines (PPGs) for the Board for Geology are repealed and the PPGs for the
Board for Professional Soil Scientists and Wetland Professionals will be
amended to reflect the new board name and will be in effect for the newly
merged board.
VA.R. Doc. No. R12-3264; Filed June 19, 2012, 1:10 p.m.
BOARD FOR HEARING AID SPECIALISTS AND
OPTICIANS
Final Regulation
REGISTRAR'S NOTICE:
Enactments 34 through 37 of Chapters 803 and 835 of the 2012 Acts of Assembly
merged the Board for Hearing Aid Specialists with the Board for Opticians to
create the Board for Hearing Aid Specialists and Opticians. This regulatory
action is excluded from the Administrative Process Act in accordance with §
2.2- 4006 A 4 a of the Code of Virginia, which
excludes regulations that are necessary to conform to changes in Virginia
statutory law where no agency discretion is involved. The Board for Hearing Aid
Specialists and Opticians will receive, consider, and respond to petitions by
any interested person at any time with respect to reconsideration or revision.
Title of Regulation: 18VAC80-11. Public Participation
Guidelines (amending 18VAC80-11-10, 18VAC80-11-20).
Statutory Authority: §§ 2.2-4007.02 and 54.1-201 of
the Code of Virginia.
Effective Date: August 15, 2012.
Agency Contact: William H. Ferguson, II, Executive
Director, Board for Hearing Aid Specialists and Opticians, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone
(804) 367-8590, FAX (804) 527-4295, or email hearingaidspec@dpor.virginia.gov.
Summary:
Chapters 803 and 835 of the 2012 Acts of Assembly merged
the Board for Opticians with the Board for Hearing Aid Specialists effective
July 1, 2012. The Public Participation Guidelines (PPGs) for the Board for Opticians
are repealed and the PPGs for the Board for Hearing Aid Specialists are amended
to reflect the new board name, Board for Hearing Aid Specialists and Opticians.
Part I
Purpose and Definitions
18VAC80-11-10. Purpose.
The purpose of this chapter is to promote public involvement
in the development, amendment or repeal of the regulations of the Board for
Hearing Aid Specialists and Opticians. This chapter does not apply to
regulations, guidelines, or other documents exempted or excluded from the
provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the
Code of Virginia).
18VAC80-11-20. 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 Board for Hearing Aid
Specialists and Opticians, which is the unit of state government
empowered by the agency's basic law to make regulations or decide cases.
Actions specified in this chapter may be fulfilled by state employees as
delegated by the agency.
"Basic law" means provisions in the Code of
Virginia that delineate the basic authority and responsibilities of an 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 or staff of the agency 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.
"Town Hall" means the Virginia Regulatory Town
Hall, the website operated by the Virginia Department of Planning and Budget at
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.
VA.R. Doc. No. R12-3266; Filed June 19, 2012, 1:12 p.m.
BOARD FOR HEARING AID SPECIALISTS AND
OPTICIANS
Final Regulation
REGISTRAR'S NOTICE:
Enactments 34 through 37 of Chapters 803 and 835 of the 2012 Acts of Assembly
merged the Board for Hearing Aid Specialists with the Board for Opticians to
create the Board for Hearing Aid Specialists and Opticians. The following
action transfers the Board for Opticians regulations numbered 18VAC100-20 to
the Board for Hearing Aid Specialists and Opticians and renumbers the
regulations as 18VAC80-30.
This regulatory action is
excluded from the Administrative Process Act in accordance with § 2.2- 4006 A 4
a of the Code of Virginia, which excludes regulations
that are necessary to conform to changes in Virginia statutory law where no
agency discretion is involved. The Board for Hearing Aid Specialists and
Opticians will receive, consider, and respond to petitions by any interested
person at any time with respect to reconsideration or revision.
Title of Regulation: 18VAC80-30. Opticians
Regulations formerly 18VAC100-20-5 through
18VAC100-20-130; (adding 18VAC80-30-10 through 18VAC80-30-180).
Statutory Authority: § 54.1-201 of the Code of
Virginia.
Effective Date: August 15, 2012.
Agency Contact: William H. Ferguson, II, Executive
Director, Board for Hearing Aid Specialists and Opticians, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone
(804) 367-8590, FAX (804) 527-4295, or email opticians@dpor.virginia.gov.
Summary:
Chapters 803 and 835 of the 2012 Acts of Assembly merged
the Board for Opticians with the Board for Hearing Aid Specialists based on a
recommendation of Governor McDonnell's Commission on Government Reform and Restructuring.
This regulatory action amends the Board for Opticians regulations to reflect
the new board name and renumbers the regulations so that they are placed under
the Board for Hearing Aid Specialists and Opticians in the Virginia
Administrative Code.
CHAPTER 20 30
BOARD FOR OPTICIANS REGULATIONS
Part I
General Definitions
18VAC100-20-5. 18VAC80-30-10. Definitions.
The following words and terms when used in this chapter shall
have the following meanings, unless the context clearly indicates otherwise:
"Apprentice" means a person at least 16 years of
age who is covered by a written agreement with an employer and approved by the
Virginia Apprenticeship Council.
"Board" means the Board for Hearing Aid
Specialists and Opticians.
"Contact lens endorsed optician" means any person
not exempted by § 54.1-1701 54.1-1506 of the Code of Virginia who
is a Virginia licensed optician and who has received a contact lens endorsement
from the board, who fits contact lenses on prescription from licensed physicians
or licensed optometrists for the intended wearers.
"Department" means the Virginia Department of
Professional and Occupational Regulation.
"Fit and or dispense" means to
measure, adapt, fit or adjust eyeglasses, spectacles, lenses, or appurtenances
to the human face, or to verify the prescription to be correct in the
prescription eyeglasses or prescription optical devices.
"Licensed optician" means any person who is the
holder of a license issued by the Board for Opticians.
"Optician" means any person not exempted by § 54.1-1701
54.1-1506 of the Code of Virginia who prepares or dispenses eyeglasses,
spectacles, lenses, or related appurtenances for the intended wearers or users
on prescriptions from licensed physicians or licensed optometrists, or as duplications
or reproductions of previously prepared eyeglasses, spectacles, lenses, or
related appurtenances; or who, in accordance with such prescriptions,
duplications or reproductions, measures, adapts, fits, and adjusts eyeglasses,
spectacles, lenses, or appurtenances to the human face.
"Opticianry" means the
personal health service that is concerned with the art and science of
ophthalmic optics as applied to the compounding, filling and adaptations of
ophthalmic prescriptions, products, and accessories.
Part II
Entry Requirements
18VAC100-20-10. 18VAC80-30-20. Qualifications of
applicant.
An applicant for a license shall furnish satisfactory
evidence on an application provided by the board establishing that:
1. The applicant is at least 18 years of age unless
emancipated under the provisions of § 16.1-333 of the Code of Virginia;
2. The applicant is a graduate of an accredited high school,
or has completed the equivalent of grammar school and a four-year high school
course, or is a holder of a certificate of general educational development;
3. The applicant is in good standing as a licensed optician in
every jurisdiction where licensed;
4. The applicant has not been convicted in any jurisdiction of
a misdemeanor or felony involving sexual offense, drug distribution or physical
injury, or any felony that directly relates to the profession of opticianry. The board shall have the authority to
determine, based upon all the information available, including the applicant's
record of prior convictions, if the applicant is unfit or unsuited to engage in
the profession of opticianry. Any plea of nolo
contendere shall be considered a conviction for the purposes of this
subdivision. The licensee shall provide a certified copy of a final order,
decree or case decision by a court or regulatory agency with the lawful
authority to issue such order, decree or case decision, and such copy shall be
admissible as prima facie evidence of such conviction. This record shall be
forwarded by the licensee to the board within 10 days after all appeal rights
have expired;
5. The applicant has successfully completed one of the
following education requirements:
a. A board-approved two-year course in a school of opticianry, including the study of topics essential to
qualify for practicing as an optician; or
b. A three-year apprenticeship with a minimum of one school
year of related instruction or home study while registered in the
apprenticeship program in accordance with the standards established by the
state Department of Labor and Industry, Division of Apprenticeship Training and
approved by the Board for Opticians;
6. The applicant has disclosed his current mailing address;
7. The nonresident applicant for a license has filed and
maintained with the department an irrevocable consent for the director of the
department to serve as service agent for all actions filed in any court in the
Commonwealth; and
8. The applicant shall certify, as part of the application,
that the applicant has read and understands Chapter 17 15 (§ 54.1-1700
54.1-1500 et seq.) of Title 54.1 of the Code of Virginia and the
regulations of the board.
18VAC100-20-50. 18VAC80-30-30. Opticians licensed
in another state.
A. An optician licensed in another state seeking to be
licensed as an optician in Virginia shall submit an application on a form
provided by the board with the required fee. All fees are nonrefundable and
shall not be prorated.
B. The board, using the following standards, shall issue a
license to any person licensed in another state who:
1. Has met requirements equivalent to those listed in 18VAC100-20-10
18VAC80-30-20; and
2. Has passed a substantially equivalent examination.
18VAC100-20-53. 18VAC80-30-40. Registration for
voluntary practice by out-of-state licensees.
Any optician who does not hold a license to practice in
Virginia and who seeks registration in accordance with subdivision 5 of § 54.1-1701
54.1-1506 of the Code of Virginia shall:
1. File a complete application for registration on a form
provided by the board within 15 days prior to engaging in such practice. An
incomplete application will not be considered;
2. Provide a complete list of professional licensure in each
state in which he has held a license and a copy of any current license;
3. Provide a name of the nonprofit organization, the dates and
location of the voluntary provision of services; and
4. Provide a notarized statement from a representative of the
nonprofit organization attesting to its compliance with the provisions of
subdivision 5 of § 54.1-1701 54.1-1506 of the Code of Virginia.
18VAC100-20-54. 18VAC80-30-50. Fees.
A. The fee for examination or examinations shall consist of
the combination of an administrative charge of $25 (spectacle), $25 (contact
lens), and the appropriate contract charges. Examination service contracts
shall be established in compliance with the Virginia Public Procurement Act (§
2.2-4300 et seq. of the Code of Virginia). The total examination fee shall not
exceed a cost of $1,000 to the applicant.
B. All application fees for licenses are nonrefundable and
the date of receipt by the board or its agent is the date which will be used to
determine whether it is on time.
C. Application and examination fees must be submitted with
the application for licensure.
The following fees shall apply:
|
FEE TYPE
|
AMOUNT DUE
|
WHEN DUE
|
|
Application for licensure
|
$100
|
With application
|
|
Application for contact lens certification
|
$100
|
With application
|
|
Renewal
|
$100
|
Up to the expiration date on the license with a 30-day grace
period
|
|
Late renewal (includes renewal fee)
|
$125
|
Between 30 and 60 days after the expiration date on the
license
|
|
Reinstatement (includes renewal and late renewal fees)
|
$225
|
After 60 days following the expiration date on the license
|
18VAC100-20-55. 18VAC80-30-60.
Examinations.
A. All examinations required for licensure shall be approved
by the board and administered by the board, or its agents or employees acting
on behalf of the board.
B. The board shall schedule an examination to be held at
least twice each calendar year at a time and place to be designated by the
board.
C. The applicant shall follow all rules established by the
board with regard to conduct at an examination. Such rules shall include any
written instructions communicated prior to the examination date and any instructions
communicated at the site, either written or oral, on the date of the
examination. Failure to comply with all rules established by the board with
regard to conduct at an examination shall be grounds for denial of application.
18VAC100-20-56. 18VAC80-30-70. Content of
optician examination and reexamination.
A. Applicants for licensure shall pass a written examination
and a practical examination approved by the board.
B. The optician examination given by the board may include,
but is not limited to, the following topics:
1. Ophthalmic materials;
2. Ophthalmic optics and equipment;
3. Ophthalmic spectacle lens grinding;
4. Prescription interpretation;
5. Theory of light;
6. Finishing, fitting and adjusting of eyeglasses and frames;
7. Ethics of relationship in respect to patient and physician
or optometrist;
8. Anatomy and physiology; and
9. Applicable laws and regulations.
C. Any applicant who fails the written or practical
examination, or both examinations, shall be required to be reexamined on the
failed examination(s) and shall pay the reexamination fee(s).
D. An applicant shall pass the written and practical
examination within two years of the initial test date. After two years, the
applicant shall file a new application and pay the required fee.
18VAC100-20-60. 18VAC80-30-80. Endorsement to fit
contact lenses.
The board shall administer a contact lens examination to fit
contact lenses. The "Contact Lens" endorsement shall be mandatory for
licensed opticians to fit contact lenses as set out in §§ 54.1-1705 54.1-1508
and 54.1-1706 54.1-1509 of the Code of Virginia, and the contact
lens endorsement shall not be issued unless the individual's license is in good
standing. A contact lens endorsed optician is any Virginia licensed optician
who has been endorsed by the board to fit contact lens.
18VAC100-20-65. 18VAC80-30-90. Content of contact
lens endorsement examination and reexamination.
A. The contact lens endorsement examination administered by
the board may include, but is not limited to, the following topics:
1. Rigid lens verification;
2. Lens identification;
3. Keratomy;
4. Slit lamp;
5. Slides (fitting patterns, edge patterns, quality stains);
and
6. Insertion/removal.
B. Any applicant who fails the written or practical contact
lens examination, or both examinations, who desires to retake the
examination(s), shall be required to be reexamined on the failed examination(s)
and shall pay the reexamination fee(s).
C. An applicant shall pass the written and practical
examination within two years of the initial test date. After two years, the
applicant shall file a new application and pay the required fee.
Part III
Renewal
18VAC100-20-70. 18VAC80-30-100. License renewal
required.
A. Licenses issued under this chapter shall expire 24 months
from the last day of the month in which the license was issued.
B. The board shall mail a renewal application form to the
licensee at the last known mailing address. Failure to receive this notice does
not relieve the licensee of the obligation to renew. Prior to the expiration
date shown on the license, each licensee desiring to renew his license must
return all of the required forms and the appropriate fee to the board as
outlined in 18VAC100-20-54 18VAC80-30-50. If the licensee fails
to receive the renewal notice, a copy of the existing license shall be
submitted to the board with the required fee.
C. Licensees shall be required to renew their license by
submitting the appropriate fee made payable to the Treasurer of Virginia. Any
licensee who fails to renew within 30 days after the license expires shall pay
a late renewal fee, in addition to the renewal fee, as set out in 18VAC100-20-54
18VAC80-30-50.
D. The board, in its discretion and for just cause, may deny
renewal of a license. Upon such denial, the applicant for renewal may request
that a proceeding be held in accordance with the provision of the
Administrative Process Act (§ 9-6.14:1 2.2-4000 et seq. of the
Code of Virginia).
Part IV
Reinstatement
18VAC100-20-81. 18VAC80-30-110. Reinstatement
required.
A. If a licensee fails to renew his license within 60 days
after the expiration date on the license, the licensee must apply for
reinstatement on a form provided by the board.
1. Individuals for reinstatement shall continue to meet the
standards of entry as set out in subdivisions 1 through 8 of 18VAC100-20-10
18VAC80-30-20.
2. Individuals for reinstatement shall submit the required fee
as set out in 18VAC100-20-54 18VAC80-30-50.
B. Twenty-four months after expiration of the license, the
individual may be reinstated if he can show proof of continuous, active,
ethical and legal practice outside of Virginia. If not, the individual must
show proof of completion of a board-approved review course which measures
current competence. Credit will not be allowed for any review course which has not
been approved by the board prior to administration of the course.
C. Sixty months after expiration of the license, the
individual, who cannot show proof of continuous, active, ethical and legal
practice outside of Virginia, shall be required to apply as a new applicant for
licensure. He shall be required to meet all current education requirements and
retake the board's written and practical examination.
D. The board, in its discretion and for just cause, may deny
reinstatement of a license. Upon such denial, the applicant for reinstatement
may request that a proceeding be held in accordance with the provisions of the
Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).
E. A licensee who reinstates his license shall be regarded as
having been continually licensed without interruption. Therefore, the licensee
shall remain under the disciplinary authority of the board during the entire
period and may be held accountable for his activities during this period.
Nothing in these regulations shall divest the board of its authority to
discipline a licensee for a violation of the law or regulations during the
period of licensure as set out in this provision.
18VAC100-20-85. 18VAC80-30-120. Lenses and frames
standards.
A. Power Tolerance (diopters).
|
|
Sphere: Plano to ±.6.50
|
±.13 diopter
|
|
|
|
Above ±.6.50
|
±2%
|
|
|
Cylinder: Plano - 2.00
|
±.13 diopter
|
|
|
|
-2.12 to -4.50
|
±.15 diopter
|
|
|
|
above -4.50
|
±4%
|
B. Cylinder Axis.
|
|
Cyl. Power Diopters
|
Degrees ±
|
|
|
|
0.12 - 0.37
|
7°
|
|
|
|
0.50 - 0.75
|
5°
|
|
|
|
0.87 - 1.50
|
3°
|
|
|
|
1.62 and above
|
2°
|
C. Distance Optical Center. Contribution to net horizontal
prism from processing should not exceed 2/3 prism diopter. A maximum of ±2.5mm
variation from the specified distance optical center is permissible in higher
power lens combinations.
D. Prism Tolerances (Vertical). Contribution to imbalance
from processing should not exceed 1/3 prism diopters. A maximum of 1.0mm
difference in vertical level is permissible in higher power lens combinations.
E. Segment Location.
|
|
Vertical
|
±.1.0 mm
|
|
|
Horizontal
|
±.2.5 mm
|
Tilt or twist in the case of a flat-top segment, the tilt of
its horizontal axis should be less than 1/2 mm in differential elevation
between the segment edges.
F. Multifocal Additions.
|
|
Plano + 8.00
|
±.13 diopter
|
|
|
Above + 8.00
|
±.18 diopter
|
G. Base Curve. When specified, the base curve should be
supplied within ±0.75 diopter.
H. Warpage. The cylindrical surface
power induced in the base curve of a lens should not exceed 1 diopter. This recommendation
need not apply within 6mm of the mounting eyewire.
I. Localized errors (aberration). Areas outside a 20mm radius
from the specified major reference point or optical center need not be tested
for aberration. Progressive lenses are exempt from this requirement.
18VAC100-20-87. 18VAC80-30-130. Contact lens
standards.
To fit contact lenses, the following shall be done:
1. The prescription (RX) must show evidence that contact
lenses may be worn by the patient before the prescription can be filled by the
licensed optician. Verbal approval from the optometrist or ophthalmologist or
its agents or employees is acceptable. The licensed optician must make a
notation in the patient's record of the name of the authorizing optometrist or
ophthalmologist and the date of the authorization.
2. The optician must use all the following to fit contact
lenses:
a. Slit Lamp;
b. Keratometer; and
c. Standardized Snellen type acuity
chart.
18VAC100-20-90. 18VAC80-30-140. Display of
license.
Every person to whom a current license has been granted under
this chapter shall visibly display his unaltered license in a conspicuous place
in plain view of the public in the principal office in which he works. A
duplicate license which has been notarized shall be posted in any branch
offices.
18VAC100-20-100. 18VAC80-30-150. Notification of
change of address or name.
Notice in writing shall be given to the board in the event of
any change of name or address. Such notice shall be mailed to the board within
30 days of the change of name or address. The board shall not be responsible
for the licensee's failure to receive notices, communications and
correspondence caused by the licensee's failure to promptly notify the board in
writing of any change of name or address.
18VAC100-20-110. 18VAC80-30-160. Grounds for
disciplinary action.
A. The board is empowered to revoke, suspend, or refuse to
grant or renew a license and is empowered to impose a fine up to the statutory
limit, as authorized under § 54.1-202 of the Code of Virginia, per violation on
a licensee for any of the following reasons:
1. Using nonprescribed controlled
substances as defined in § 54.1-3401 of the Code of Virginia or alcohol at the
work place during working hours;
2. Displaying professional incompetence or negligence,
including but not limited to failure to comply with this part in the
performance of opticianry;
3. Presenting false or fraudulent information on an
application certifying possession of the qualifications required under 18VAC100-20-10
18VAC80-30-20;
4. Violating or inducing others to violate any provisions of
Chapter 1, 2, 3, or 17 15 of Title 54.1 of the Code of
Virginia, or of any other statute applicable to the practice of the profession
herein regulated, or of any provisions of this chapter;
5. Publishing or causing to be published any advertisement
related to opticianry that is false, deceptive, or
misleading;
6. Having been convicted in any jurisdiction of a misdemeanor
or felony involving sexual offense, drug distribution or physical injury, or of
any felony that directly relates to the profession of opticianry.
The board shall have the authority to determine, based upon all the information
available, including the applicant's record of prior convictions, if the
applicant is unfit or unsuited to engage in the profession of opticianry. Any plea of nolo contendere shall be considered
a conviction for the purposes of this section. The licensee shall provide a
certified copy of a final order, decree or case decision by a court or
regulatory agency with the lawful authority to issue such order, decree or case
decision, and such copy shall be admissible as prima facie evidence of such
conviction. This record shall be forwarded by the licensee to the board within
10 days after all appeal rights have expired;
7. Having been disciplined by another jurisdiction in the
practice of opticianry. Documentary evidence of such
discipline shall be submitted by the licensee to the board within 10 days after
all appeal rights have expired; or
8. Allowing any person to engage in the practice of opticianry, except an optician apprentice or student
enrolled in a course in a school of opticianry under
the direct supervision of a licensed optician.
B. A finding of improper or dishonest conduct in the practice
of the profession by a court of competent jurisdiction shall be cause for
disciplinary action.
18VAC100-20-120. 18VAC80-30-170. Accountability
of licensee.
A licensee shall be responsible for his acts or omissions and
for the acts of his agents or employees or his staff in the performance of opticianry services.
18VAC100-20-130. 18VAC80-30-180. Approval of
review courses.
A. Review courses set out in this chapter shall be approved
by the board, except those provided by institutions, schools and universities
approved by the State Council of Higher Education for Virginia, for which
continuing education units are awarded. Training courses requiring board
approval shall be approved by the board prior to commencing in accordance with
subsection B of this section.
B. Training activities for which experience credit may be
granted must be conducted in general conformance with the International
Association for Continuing Education and Training's "Criteria and
Guidelines for Quality Continuing Education and Training Programs: the CEU and
Other Measurement Units," 1998. The board reserves the right to waive any
of the requirements of the association's guidelines on a case-by-case basis.
Only classroom, laboratory and field trip contact time will be used to compute
training credits. No credit will be given for breaks, meals, or receptions.
1. Organization. The board will only approve training offered
by a sponsor who is an identifiable organization with a mission statement outlining
its functions, structure, process and philosophy, and that has a staff of one
or more persons with the authority to administer training.
2. Training records. The board will only approve training
offered by a sponsor who maintains training records for all participants for a
minimum of five years, and who has a written policy on retention and release of
training records.
3. Instructors. The board will only approve training conducted
by personnel who have demonstrated competence in the subject being taught, an
understanding of the learning objective, a knowledge of the learning process to
be used, and a proven ability to communicate.
4. Objectives. The board will only approve courses that have a
series of stated objectives that are consistent with the job requirements of an
optician. The training content must be consistent with those objectives.
5. Course completion requirements. For successful completion
of a training program, participants must attend 90% or more of the class
contact time and must demonstrate their learning through written examinations,
completion of a project, self-assessment, oral examination, or other assessment
technique.
C. The board shall consider the following information, to be
submitted by the instructor, institution, school or university on forms
provided by the board, at least 45 days prior to the scheduled training
activity:
1. Course information.
a. Course title;
b. Planned audience;
c. Name of sponsor;
d. Name, address, phone number of contact person;
e. Schedule presentation dates;
f. Detailed course schedule, hour-by-hour;
g. List of planned breaks;
h. Scheduled presentation location(s); and
i. Relevancy of course to opticianry licensing.
2. Instructor qualifications.
a. Name of instructor;
b. Title of instructor; and
c. Summary of qualifications to teach this course.
3. Training materials.
a. Course objectives -- A listing of the course objectives
stated in terms of the skills, knowledge, or attitude the participant will be
able to demonstrate as a result of the training;
b. Course outline -- A detailed outline showing the planned
activities that will occur during the training program, including major topics,
planned presentation sequence, laboratory and field activities, audio-visual
presentations, and other major activities;
c. Course reference materials -- A list of the name, publisher
and publication date for commercially available publications; for reference
materials developed by the course sponsor or available exclusively through the
course, a copy of the reference materials;
d. Audio-visual support materials -- A listing of any
commercially available audio-visual support material that will be used in the
program; a brief description of any sponsor or instructor generated audio-visual
material that will be used; and
e. Handouts -- Identification of all commercially available
handout material that will be used; copies of all other planned handouts.
4. Determination of successful completion. A description of
the means that will be used to determine the successful completion of the
training program by individual attendees, such as examinations, projects,
personal evaluations by the instructor, or other recognized evaluation
techniques.
D. Recurring training programs. If there are plans to present
the same course of instruction routinely at multiple locations with only minor
modifications and changes, the board may approve the overall program rather
than individual presentations if so requested by the sponsor.
1. The board shall consider all of the information listed
above except those items related to specific offerings of the course.
2. Board approval may be granted for a specific period of time
or for an indefinite period.
3. Board approval will apply only to those specific offerings
certified by the sponsoring organization as having been conducted by
instructors meeting the established criteria and in accordance with the
board-approved courses, outlines and objectives.
4. To maintain approval of the program, changes made to the program
since initial approval must be submitted to the board for review and approval.
Changes must be approved by the board prior to any training subsequent to the
changes.
NOTICE: The forms administering
this regulation are not being published; however, the forms are available from
the agency contact or may be viewed at the Office of the Registrar of
Regulations, General Assembly Building, 2nd Floor, Richmond,
Virginia 23219.
FORMS (18VAC100-20) (18VAC80-30)
License and Examination Application, 11LIC (rev. 2004).
Contact Lens Endorsement Application, 11CLEND (rev. 2004).
Reciprocity Application, 11REC (eff. 2004).
Reinstatement Application, 11REI (rev. 2004).
Voluntary Practice Registration Application, 11VOLREG (eff.
7/03).
Sponsor Certification for Voluntary Practice Registration,
11VRSPCERT (eff. 7/03).
DOCUMENTS INCORPORATED BY REFERENCE (18VAC100-20) (18VAC80-30)
Criteria and Guidelines for Quality Continuing Education and
Training Programs: the CEU and Other Measurement Units, International
Association for Continuing Education and Training, 1998.
VA.R. Doc. No. R12-3262; Filed June 19, 2012, 1:12 p.m.
BOARD FOR OPTICIANS
Final Regulation
REGISTRAR'S NOTICE:
Enactments 34 through 37 of Chapters 803 and 835 of the 2012 Acts of Assembly
merged the Board for Hearing Aid Specialists with the Board for Opticians to
create the Board for Hearing Aid Specialists and Opticians. This regulatory
action is excluded from the Administrative Process Act in accordance with §
2.2- 4006 A 4 a of the Code of Virginia, which excludes regulations that
are necessary to conform to changes in Virginia statutory law where no agency
discretion is involved. The Board for Hearing Aid Specialists and Opticians
will receive, consider, and respond to petitions by any interested person at
any time with respect to reconsideration or revision.
Title of Regulation: 18VAC100-11. Public
Participation Guidelines (repealing 18VAC100-11-10 through
18VAC100-11-110).
Statutory Authority: §§ 2.2-4007.02 and 54.1-201 of
the Code of Virginia.
Effective Date: August 15, 2012.
Agency Contact: William H. Ferguson, II, Executive
Director, Board for Hearing Aid Specialists and Opticians, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone
(804) 367-8590, FAX (804) 527-4295, or email opticians@dpor.virginia.gov.
Summary:
Chapters 803 and 835 of the 2012 Acts of Assembly merged
the Board for Opticians with the Board for Hearing Aid Specialists effective
July 1, 2012. The Public Participation Guidelines (PPGs) for the Board for
Opticians are repealed and the PPGs for the Board for Hearing Aid Specialists
are amended to reflect the new board name.
VA.R. Doc. No. R12-3265; Filed June 19,
2012, 1:11 p.m.
BOARD OF PHARMACY
Final Regulation
Title of Regulation: 18VAC110-20. Regulations
Governing the Practice of Pharmacy (amending 18VAC110-20-20, 18VAC110-20-275,
18VAC110-20-690, 18VAC110-20-700; adding 18VAC110-20-685, 18VAC110-20-725,
18VAC110-20-726, 18VAC110-20-727, 18VAC110-20-728).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Effective Date: August 15, 2012.
Agency Contact: Caroline Juran,
RPh, Executive Director, Board of Pharmacy, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463,
telephone (804) 367-4416, FAX (804) 527-4472, or email caroline.juran@dhp.virginia.gov.
Summary:
Chapter 28 of the 2010 Acts of the Assembly requires the
Board of Pharmacy to promulgate regulations to authorize (i)
community services boards (CSBs) and behavioral health authorities (BHAs) to
possess, repackage, and deliver or administer medications and (ii) crisis
stabilization units to store and administer a stock of drugs needed for
emergency treatment. The amendments set forth requirements for registration of
a CSB or BHA to possess, repackage, and deliver or administer drugs and for a
program to train nonpharmacists in repackaging for
CSBs or BHAs. The regulations include labeling, storage, recordkeeping,
destruction, and other requirements for repackaging in these facilities (which
do not have a pharmacy); persons authorized to repackage; and information to
clients about repackaged drugs. In addition, the regulations include curricula
and instructional criteria for approval of repackaging training programs and
for expiration and renewal of program approval and include provisions for
stocking, recordkeeping, and administration of Schedule VI controlled
substances at a crisis stabilization unit for immediate treatment of patients
as necessary.
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.
18VAC110-20-20. Fees.
A. Unless otherwise provided, fees listed in this section
shall not be refundable.
B. Unless otherwise provided, any fees for taking required
examinations shall be paid directly to the examination service as specified by
the board.
C. Initial application fees.
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1. Pharmacist license
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$180
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2. Pharmacy intern registration
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$15
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3. Pharmacy technician registration
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$25
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4. Pharmacy permit
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$270
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5. Permitted physician licensed to dispense drugs
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$270
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6. Medical equipment supplier permit
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$180
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7. Humane society permit
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$20
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8. Nonresident pharmacy
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$270
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9. Controlled substances registrations
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$90
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10. Innovative program approval.
If the board determines that a technical consultant is
required in order to make a decision on approval, any consultant fee, not to
exceed the actual cost, shall also be paid by the applicant in addition to
the application fee.
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$250
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11. Approval of a pharmacy technician training program
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$150
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12. Approval of a continuing education program
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$100
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13. Approval of a repackaging training program
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$50
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D. Annual renewal fees.
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1. Pharmacist active license – due December 31
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$90
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2. Pharmacist inactive license – due December 31
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$45
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3. Pharmacy technician registration – due December 31
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$25
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4. Pharmacy permit – due April 30
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$270
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5. Physician permit to practice pharmacy – due February 28
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$270
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6. Medical equipment supplier permit – due February 28
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$180
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7. Humane society permit – due February 28
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$20
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8. Nonresident pharmacy – due April 30
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$270
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9. Controlled substances registrations – due February 28
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$90
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10. Innovative program continued approval based on board
order not to exceed $200 per approval period.
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11. Approval of a pharmacy technician training program
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$75 every two years
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12. Approval of a repackaging training program
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$30 every two years
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E. Late fees. The following late fees shall be paid in
addition to the current renewal fee to renew an expired license within one year
of the expiration date or within two years in the case of a pharmacy technician
training program. In addition, engaging in activities requiring a license,
permit, or registration after the expiration date of such license, permit, or
registration shall be grounds for disciplinary action by the board.
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1. Pharmacist license
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$30
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2. Pharmacist inactive license
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$15
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3. Pharmacy technician registration
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$10
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4. Pharmacy permit
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$90
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5. Physician permit to practice pharmacy
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$90
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6. Medical equipment supplier permit
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$60
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7. Humane society permit
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$5
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8. Nonresident pharmacy
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$90
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9. Controlled substances registrations
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$30
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10. Approval of a pharmacy technician training program
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$15
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11. Approval of a repackaging training program
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$10
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F. Reinstatement fees. Any person or entity attempting to
renew a license, permit, or registration more than one year after the
expiration date, or more than two years after the expiration date in the case
of a pharmacy technician training program, shall submit an application for
reinstatement with any required fees. Reinstatement is at the discretion of the
board and, except for reinstatement following license revocation or suspension,
may be granted by the executive director of the board upon completion of an
application and payment of any required fees.
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1. Pharmacist license
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$210
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2. Pharmacist license after revocation or suspension
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$500
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3. Pharmacy technician registration
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$35
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4. Pharmacy technician registration after revocation or
suspension
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$125
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5. Facilities or entities that cease operation and wish to
resume shall not be eligible for reinstatement but shall apply for a new
permit or registration. Facilities or entities that failed to renew and
continued to operate for more than one renewal cycle shall pay the current
and all back renewal fees for the years in which they were operating plus the
following reinstatement fees:
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a. Pharmacy permit
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$240
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b. Physician permit to practice pharmacy
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$240
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c. Medical equipment supplier permit
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$210
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d. Humane society permit
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$30
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e. Nonresident pharmacy
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$115
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f. Controlled substances registration
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$180
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g. Approval of a pharmacy technician training program
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$75
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h. Approval of a repackaging training program
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$50
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G. Application for change or inspection fees for facilities
or other entities.
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1. Change of pharmacist-in-charge
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$50
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2. Change of ownership for any facility
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$50
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3. Inspection for remodeling or change of location for any
facility
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150
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4. Reinspection of any facility
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$150
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5. Board-required inspection for a robotic pharmacy system
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$150
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6. Board-required inspection of an innovative program
location
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$150
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7. Change of pharmacist responsible for an approved
innovative program
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$25
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H. Miscellaneous fees.
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1. Duplicate wall certificate
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$25
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2. Returned check
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$35
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I. For the annual renewal due on the stated dates, the
following fees shall be imposed for a license, permit or registration:
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1. Pharmacist active license – December 31, 2009
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$50
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2. Pharmacist inactive license – December 31, 2009
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$25
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3. Pharmacy technician registration – December 31, 2009
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$15
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4. Pharmacy permit – April 30, 2010
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$210
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5. Physician permit to practice pharmacy – February 28, 2010
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$210
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6. Medical equipment supplier permit – February 28, 2010
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$140
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7. Humane society permit – February 28, 2010
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$20
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8. Nonresident pharmacy – April 30, 2010
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$210
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9. Controlled substances registrations – February 28, 2010
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$50
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18VAC110-20-275. Delivery of dispensed
prescriptions.
A. Pursuant to § 54.1-3420.2 B of the Code of Virginia, in
addition to direct hand delivery to a patient or patient's agent or delivery to
a patient's residence, a pharmacy may deliver prescriptions a
dispensed prescription drug order for Schedule VI controlled substances to
another pharmacy, to a practitioner of the healing arts licensed to practice
pharmacy or to sell controlled substances, or to an authorized person or entity
holding a controlled substances registration issued for this purpose in compliance
with this section and any other applicable state or federal law. Prescription
drug orders for Schedule II through Schedule V controlled substances may not be
delivered to an alternate delivery location unless such delivery is authorized
by federal law and regulations of the board.
B. Delivery to another pharmacy.
1. One pharmacy may fill prescriptions and deliver the
prescriptions to a second pharmacy for patient pickup or direct delivery to the
patient provided the two pharmacies have the same owner, or have a written
contract or agreement specifying the services to be provided by each pharmacy,
the responsibilities of each pharmacy, and the manner in which each pharmacy
will comply with all applicable federal and state law.
2. Each pharmacy using such a drug delivery system shall
maintain and comply with all procedures in a current policy and procedure
manual that includes the following information:
a. A description of how each pharmacy will comply with all
applicable federal and state law;
b. The procedure for maintaining required, retrievable
dispensing records to include which pharmacy maintains the hard-copy
prescription, which pharmacy maintains the active prescription record for
refilling purposes, how each pharmacy will access prescription information
necessary to carry out its assigned responsibilities, method of recordkeeping
for identifying the pharmacist or pharmacists responsible for dispensing the
prescription and counseling the patient, and how and where this information can
be accessed upon request by the board;
c. The procedure for tracking the prescription during each
stage of the filling, dispensing, and delivery process;
d. The procedure for identifying on the prescription label all
pharmacies involved in filling and dispensing the prescription;
e. The policy and procedure for providing adequate security to
protect the confidentiality and integrity of patient information;
f. The policy and procedure for ensuring accuracy and
accountability in the delivery process;
g. The procedure and recordkeeping for returning to the
initiating pharmacy any prescriptions that are not delivered to the patient;
and
h. The procedure for informing the patient and obtaining
consent for using such a dispensing and delivery process.
3. Drugs waiting to be picked up at or delivered from the
second pharmacy shall be stored in accordance with subsection A of
18VAC110-20-200.
C. Delivery to a practitioner of the healing arts licensed by
the board to practice pharmacy or to sell controlled substances or other
authorized person or entity holding a controlled substances registration
authorized for this purpose.
1. A prescription may be delivered by a pharmacy to the office
of such a practitioner or other authorized person provided there is a written
contract or agreement between the two parties describing the procedures for
such a delivery system and the responsibilities of each party.
2. Each pharmacy using this delivery system shall maintain a
policy and procedure manual that includes the following information:
a. Procedure for tracking and assuring security,
accountability, integrity, and accuracy of delivery for the dispensed
prescription from the time it leaves the pharmacy until it is handed to the
patient or agent of the patient;
b. Procedure for providing counseling;
c. Procedure and recordkeeping for return of any prescription
medications not delivered to the patient;
d. The procedure for assuring confidentiality of patient
information; and
e. The procedure for informing the patient and obtaining
consent for using such a delivery process.
3. Prescriptions waiting to be picked up by a patient at the
alternate site shall be stored in a lockable room or lockable cabinet, cart, or
other device that cannot be easily moved and that shall be locked at all times
when not in use. Access shall be restricted to the licensed practitioner of the
healing arts or the responsible party listed on the application for the
controlled substances registration, or either person's designee.
D. The contracts or agreements and the policy and procedure
manuals required by this section for alternate delivery shall be maintained
both at the originating pharmacy as well as the alternate delivery site.
E. A controlled substances registration as an alternate
delivery site shall only be issued to an entity without a prescriber or
pharmacist present at all times the site is open if there is a valid patient
health or safety reason not to deliver dispensed prescriptions directly to the
patient and if compliance with all requirements for security, policies, and
procedures can be reasonably assured.
Part XVI
Controlled Substances Registration for Other Persons or Entities
18VAC110-20-685. Definitions for controlled substances registration.
For purposes of this part, the following definitions shall
apply:
"BHA" means a behavioral health authority
facility licensed by the Department of Behavioral Health and Developmental
Services that holds a controlled substances registration issued by the board.
"CSB" means a community services board facility
licensed by the Department of Behavioral Health and Developmental Services that
holds a controlled substances registration issued by the board.
Part XVI
Controlled Substances Registration for Other Persons or Entities
18VAC110-20-690. Persons or entities authorized or required to
obtain a controlled substances registration.
A. A person or entity which maintains or intends to maintain
a supply of Schedule II through Schedule VI controlled substances, other than
manufacturers' samples, in accordance with provisions of the Drug Control Act
(§ 54.1-3400 et seq. of the Code of Virginia) may apply for a controlled
substances registration on forms approved by the board.
B. Persons or entities which may be registered by the board
shall include, but not be limited to, hospitals without in-house pharmacies,
nursing homes without in-house pharmacies that use automated drug dispensing
systems, ambulatory surgery centers, outpatient clinics, alternate delivery
sites, crisis stabilization units, and emergency medical services
agencies provided such persons or entities are otherwise authorized by law and
hold required licenses or appropriate credentials to administer the drugs for
which the registration is being sought.
C. In determining whether to register an applicant, the board
shall consider factors listed in subsections A and D of § 54.1-3423 of the Code
of Virginia and compliance with applicable requirements of this chapter.
1. The proposed location shall be inspected by an authorized
agent of the board prior to issuance of a controlled substances registration.
2. Controlled substances registration applications that
indicate a requested inspection date, or requests that are received after the
application is filed, shall be honored provided a 14-day notice is allowed
prior to the requested inspection date.
3. Requested inspection dates that do not allow a 14-day
notice to the board may be adjusted by the board to provide 14 days for the
scheduling of the inspection.
4. Any person wishing to change an approved location of the
drug stock, make structural changes to an existing approved drug storage
location, or make changes to a previously approved security system shall file
an application with the board and be inspected [ consistent with
subsection B of this section ].
5. Drugs shall not be stocked within the proposed drug storage
location or moved to a new location until approval is granted by the board.
D. The application shall be signed by a person who will act
as a responsible party for the controlled substances. The responsible party may
be a prescriber, nurse, pharmacist, or pharmacy technician for alternate
delivery sites or other person approved by the board who is authorized to
administer or otherwise possess the controlled substances for that
type entity.
E. The board may require a person or entity to obtain a
controlled substances registration upon a determination that Schedule II
through VI controlled substances have been obtained and are being used as
common stock by multiple practitioners and that one or more of the following
factors exist:
1. A federal, state, or local government agency has reported
that the person or entity has made large purchases of controlled substances in
comparison with other persons or entities in the same classification or
category.
2. The person or entity has experienced a diversion, theft, or
other unusual loss of controlled substances which requires reporting pursuant
to § 54.1-3404 of the Drug Control Act.
3. The person or entity has failed to comply with
recordkeeping requirements for controlled substances.
4. The person or entity or any other person with access to the
common stock has violated any provision of federal, state, or local law or
regulation relating to controlled substances.
18VAC110-20-700. Requirements for supervision for controlled
substances registrants.
A. A practitioner licensed in Virginia shall provide
supervision for all aspects of practice related to the maintenance and use of
controlled substances as follows:
1. In a hospital or nursing home without an in-house pharmacy,
a pharmacist shall supervise.
2. In an emergency medical services agency, the operational
medical director shall supervise.
3. For any other type of applicant or registrant, a pharmacist
or a prescriber whose scope of practice is consistent with the practice of the
applicant or registrant and who is approved by the board may provide the
required supervision.
B. The supervising practitioner shall approve the list of
drugs which may be ordered by the holder of the controlled substances
registration; possession of controlled substances by the entity shall be
limited to such approved drugs. The list of drugs approved by the supervising
practitioner shall be maintained at the address listed on the controlled
substances registration.
C. Access to the controlled substances shall be limited to (i) the supervising practitioner or to those persons who
are authorized by the supervising practitioner and who are authorized by law to
administer drugs in Virginia, (ii) such other persons who have successfully
completed a training program for repackaging of prescription drug orders in a
CSB or BHA as authorized in § 54.1-3420.2 of the Code of Virginia, or to
(iii) other such persons as designated by the supervising practitioner
or the responsible party to have access in an emergency situation. If approved
by the supervising practitioner, pharmacy technicians may have access for the
purpose of delivering controlled substances to the registrant, stocking
controlled substances in automated dispensing devices, conducting inventories,
audits and other recordkeeping requirements, and overseeing delivery of
dispensed prescriptions at an alternate delivery site, and repackaging of
prescription drug orders retained by a CSB or BHA as authorized in
§ 54.1-3420.2 of the Code of Virginia. Access to stock drugs in a crisis
stabilization unit shall be limited to prescribers, nurses, or pharmacists.
D. The supervising practitioner shall establish procedures
for and provide training as necessary to ensure compliance with all
requirements of law and regulation, including, but not limited to, storage,
security, and recordkeeping.
E. Within 14 days of a change in the responsible party or
supervising practitioner assigned to the registration, either the responsible
party or outgoing responsible party shall inform the board and a new
application shall be submitted indicating the name and license number, if
applicable, of the new responsible party or supervising practitioner.
18VAC110-20-725. Repackaging by a CSB or BHA.
A. Definition. For purposes of this section,
"repackaging" shall mean removing a drug from a container already
dispensed and labeled by a pharmacy or medical practitioner authorized to
dispense, for a particular client of a CSB or BHA, and placing it in a
container designed for a person to be able to repackage his own dispensed
prescription medications to assist with self-administration and compliance with
dosage instructions. Such repackaging shall not include the preparation of a
patient-specific label that includes drug name, strength, or directions for use
or any other process restricted to a pharmacist or pharmacy technician under
the direct supervision of a pharmacist.
B. Persons authorized to repackage. Repackaging shall be
performed by a pharmacist, pharmacy technician, nurse, or such other person who
has successfully completed a board-approved training program for repackaging of
prescription drug orders as authorized in § 54.1-3420.2 of the Code of
Virginia. A CSB or BHA using such other person shall maintain documentation of
completion of an approved training program for at least one year from date of
termination of employment or cessation of repackaging activities.
C. Requirements for repackaging.
1. The repackaging of a dispensed prescription drug order
pursuant to § 54.1-3420.2 of the Code of Virginia shall only be done at a
CSB or BHA.
2. The repackaging of dispensed prescription drugs shall be
restricted to solid oral dosage forms and a maximum of a 14-day supply of
drugs.
3. The drug container used for repackaging pursuant to this
section shall bear a label containing the client's first and last name, and
name and 24-hour contact information for the CSB or BHA.
4. A clean, well-closed container that assists the client
with self-administration shall be used when multiple doses of a repackaged drug
are provided to the client at one time.
5. A prescription drug order shall not be repackaged beyond
the assigned expiration date noted on the prescription label of the dispensed
drug, if applicable, or beyond one year from the date the drug was originally
dispensed by a pharmacy, whichever date is earlier.
D. Written information for client. At the time a
repackaged drug is initially given to a client, and upon any subsequent change
in the medication order, the client shall be provided written information about
the name and strength of the drug and the directions for use. Such written
information shall have been prepared by a pharmacy or by a nurse at the CSB or
BHA.
E. Retention, storage, and destruction of repackaged
drugs.
1. Any portion of a client's prescription drug order not
placed into a container intended to assist with self-administration may be
either given to the client or retained by the CSB or BHA for subsequent
repackaging. If retained by the CSB or BHA, the remaining portion shall be
stored within the board-approved drug storage location in the original labeled
container, and shall only be used for the client for whom the drug was originally
dispensed.
2. Any portion of a prescription drug order remaining at
the CSB or BHA that has exceeded any labeled expiration date or one year from
the original pharmacy dispensing date on the label shall be separated from
unexpired drugs, stored within a designated area of the board-approved drug
storage location, and destroyed within 30 days of expiration with the written
agreement of the client. Remaining portions of discontinued prescription drug
orders retained by the CSB or BHA shall also be separated from active stock and
either returned to the client or destroyed within 30 days of discontinuance
with the written agreement of the client.
F. Recordkeeping.
1. A record of repackaging shall be made and maintained for
one year from the date of repackaging and shall include the following:
a. Date of repackaging;
b. Name of client;
c. Prescription number of the originally dispensed
prescription drug order;
d. Pharmacy name;
e. Drug name and strength;
f. Quantity of drug repackaged; and
g. Initials of the person performing the repackaging and
verifying the accuracy of the repackaged drug container.
2. A record of destruction shall be made and maintained for
one year for any prescription drug orders destroyed by the CSB or BHA and shall
include the following:
a. Date of destruction [ :; ]
b. Name of client;
c. Prescription number of the originally dispensed
prescription drug order;
d. Drug name and strength;
e. Quantity of drug destroyed; and
f. Initials of the person performing the destruction.
18VAC110-20-726. Criteria for approval of repackaging
training programs.
A. Application. Any person wishing to apply for approval
of a repackaging training program shall submit the application fee prescribed
in 18VAC110-20-20 and an application on a form approved by the board and shall
meet the criteria established in this section. The application shall name a
program director who is responsible for compliance with this section.
B. Curriculum. The curriculum for a repackaging training
program shall include instruction in current laws and regulations applicable to
a CSB or BHA for the purpose of assisting a client with self-administration
pursuant to § 54.1-3420.2 of the Code of Virginia and in the following
repackaging tasks:
1. Selection of an appropriate container;
2. Proper preparation of a container in accordance with
instructions for administration;
3. Selection of the drug;
4. Counting of the drug;
5. Repackaging of the drug within the selected container;
6. Maintenance of records;
7. Proper storage of drugs;
8. Translation of medical abbreviations;
9. Review of administration records and prescriber's orders
for the purpose of identifying any changes in dosage administration;
10. Reporting and recording the client's failure to take
medication;
11. Identification, separation, and removal of expired or
discontinued drugs; and
12. Prevention and reporting of repackaging errors.
C. Instructors and program director. Instructors for the
program shall be either (i) a pharmacist with a
current license in any jurisdiction and who is not currently suspended or
revoked in any jurisdiction in the United States or (ii) a pharmacy technician
with at least one year of experience performing technician tasks who holds a
current registration in Virginia or current PTCB certification and who is not
currently suspended or revoked in any jurisdiction in the United States. The
program director shall maintain a list of instructors for the program.
D. Program requirements.
1. The length of the program shall be sufficient to prepare
a program participant to competently perform repackaging consistent with
§ 54.1-3420.2 of the Code of Virginia and 18VAC110-20-725.
2. The program shall include a post-training assessment to
demonstrate the knowledge and skills necessary for repackaging with safety and
accuracy.
3. A program shall provide a certificate of completion to
participants who successfully complete the program and provide verification of
completion of the program for a participant upon request by a CSB, BHA, or the
board.
4. The program shall maintain records of training
completion by persons authorized to repackage in accordance with
§ 54.1-3420.2 of the Code of Virginia. Records shall be retained for two
years from date of completion of training or termination of the program.
5. The program shall report within 14 days any substantive
change in the program to include a change in program name, program director,
name of institution or business if applicable, address, program content, length
of program, or location of records.
E. Expiration and renewal of program approval. A
repackaging training program approval expires after two years, after which the
program may apply for renewal. For continued approval, the program shall submit
the renewal application, renewal fee, and a self-evaluation report on a form
provided by the board at the time of renewal notification. Renewal of a
program's approval is at the discretion of the board, and the decision to renew
shall be based on documentation of continued compliance with the criteria set
forth in this section.
18VAC110-20-727. Pharmacists repackaging for clients of a
CSB or BHA.
As an alternative to repackaging as defined in
18VAC110-20-725, a pharmacist at a CSB or BHA may repackage a client's
prescription drugs that have been dispensed by another pharmacy into compliance
packaging that complies with the requirements of 18VAC110-20-340 B and
subsections G, H, and J of 18VAC110-20-725. A primary provider pharmacy may
also provide this service in compliance with the provisions of 18VAC110-20-535.
18VAC110-20-728. Drugs for immediate treatment in crisis
stabilization units.
A. In accordance with § 54.1-3423 of the Code of
Virginia, a crisis stabilization unit shall apply for and obtain a controlled
substances registration in order to maintain a stock of Schedule VI controlled
substances for immediate treatment of patients in crisis. Schedule II through V
controlled substances shall not be stocked. The responsible party listed on the
application shall be a nurse who regularly administers controlled substances at
the crisis stabilization unit and the supervising practitioner shall be either
the medical director for the unit or a pharmacist from a provider pharmacy.
B. In consultation with a provider pharmacist, the medical
director for the unit shall determine the list of controlled substances to be
stocked at the crisis stabilization unit. The list shall be limited to Schedule
VI controlled substances and only those drugs routinely used for treatment of
patients admitted for crisis stabilization. Only drugs on this drug list may be
stocked.
C. A nurse administering a drug from this stock pursuant
to an oral order of a prescriber in accordance with § 54.1-3423 of the
Code of Virginia shall record such order in the patient's medical record.
D. Records.
1. A record shall be maintained of all drugs received as
stock by the crisis stabilization unit.
2. A record shall be made documenting administration or
other authorized disposition of stocked drugs that includes the following:
a. Name of patient;
b. Date and time of administration;
c. Drug name, strength, and quantity administered;
d. Name or initials of person administering; and
e. Prescriber name.
3. Records shall be maintained at the same location listed
on the controlled substances registration or, if maintained in an off-site
database, retrieved and made available for inspection or audit within 48 hours
of a request by the board or an authorized agent. Any computerized system used
to maintain records shall also provide retrieval via computer monitor display
or printout of the history for drugs administered during the past two years. It
shall also have the capacity of producing a printout of any data which the
registrant is responsible for maintaining.
4. Manual records may be maintained as an electronic image
that provides an exact image of the document and is clearly legible.
NOTICE: The
following forms used in administering the regulation were filed by the agency.
The forms are not being published; however, online users of this issue of the
Virginia Register of Regulations may click on the name to access a form. The
forms are also available from the agency contact or may be viewed at the Office
of the Registrar of Regulations, General Assembly Building, 2nd Floor,
Richmond, Virginia 23219.
FORMS (18VAC110-20)
Application
for Registration as a Pharmacy Intern (rev. 8/07).
Affidavit
of Practical Experience, Pharmacy Intern (rev. 8/07).
Application
for Licensure as a Pharmacist by Examination (rev. 11/09).
Instructions
for Reinstating or Reactivating a Pharmacist License (rev. 3/11).
Application
for Approval of a Continuing Education Program (rev. 8/07).
Application
for Approval of ACPE Pharmacy School Course(s) for Continuing Education Credit
(rev. 6/09).
Application
for License to Dispense Drugs (rev. 8/07).
Application
for a Pharmacy Permit (rev. 6/10).
Application
for a Nonresident Pharmacy Registration (rev. 7/08).
Application
for a Permit as a Medical Equipment Supplier (rev. 3/09).
Application
for a Controlled Substances Registration Certificate (rev. 4/09).
Application
for Registration as a Pharmacy Intern for Graduates of a Foreign College of
Pharmacy (rev. 8/07).
Closing
of a Pharmacy (rev. 8/07).
Application
for Approval of an Innovative (Pilot) Program (rev. 8/07).
Pharmacy
Technician Registration Instructions and Application (rev. 3/09).
Instructions
for Reinstating a Pharmacy Technician Registration (rev. 3/11).
Application
for Approval of a Pharmacy Technician Training Program (rev. 8/07).
Application
for Registration for Volunteer Practice (rev. 8/07).
Sponsor
Certification for Volunteer Registration (rev. 8/08).
Application
for Reinstatement of Registration as a Pharmacy Intern (eff. 9/07).
Affidavit
for Limited-Use Pharmacy Technician (rev. 8/07).
Limited-Use
Pharmacy Technician Registration Instructions and Application (rev. 7/08).
Registration
for a Pharmacy to be a Collection Site for Donated Drugs (eff. 4/09).
Application
for Approval of Repackaging Training Program (eff. 12/10).
VA.R. Doc. No. R11-2366; Filed June 19, 2012, 1:30 p.m.
BOARD FOR PROFESSIONAL SOIL SCIENTISTS,
WETLAND PROFESSIONALS, AND GEOLOGISTS
Final Regulation
REGISTRAR'S NOTICE:
Enactments 38 through 43 of Chapters 803 and 835 of the 2012 Acts of Assembly
merged the Board for Professional Soil Scientists and Wetland Professionals
with the Board for Geology to create the Board for Professional Soil
Scientists, Wetland Professionals, and Geologists.
This regulatory action is
excluded from the Administrative Process Act in accordance with § 2.2-4006 A 4 a of the
Code of Virginia, which excludes regulations that are necessary to conform to
changes in Virginia statutory law where no agency discretion is involved. The
Board for Professional Soil Scientists, Wetland Professionals, and Geologists
will receive, consider, and respond to petitions by any interested person at any
time with respect to reconsideration or revision.
Title of Regulation: 18VAC145-11. Public
Participation Guidelines (amending 18VAC145-11-10, 18VAC145-11-20).
Statutory Authority: §§ 2.2-4007.02 and 54.1-201 of
the Code of Virginia.
Effective Date: August 15, 2012.
Agency Contact: Kathleen R. Nosbisch,
Executive Director, Board for Professional Soil Scientists, Wetland
Professionals, and Geologists, 9960 Mayland Drive, Suite
400, Richmond, VA 23233, telephone (804) 367-8514, FAX (866) 465-6206, or email
soilscientist@dpor.virginia.gov.
Summary:
Chapters 803 and 835 of the 2012 Acts of Assembly merged
the Board for Geology with the Board for Professional Soil Scientists and
Wetland Professionals effective July 1, 2012. The Public Participation
Guidelines (PPGs) for the Board for Professional Soil Scientists and Wetland
Professionals are amended to reflect the new board name, Board for Professional
Soil Scientists, Wetland Professionals, and Geologists, and will remain in
effect for the newly merged board as the PPGs for the Board for Geology are
repealed.
Part I
Purpose and Definitions
18VAC145-11-10. Purpose.
The purpose of this chapter is to promote public involvement
in the development, amendment or repeal of the regulations of the Board for
Professional Soil Scientists and, Wetland Professionals, and
Geologists. This chapter does not apply to regulations, guidelines, or
other documents exempted or excluded from the provisions of the Administrative
Process Act (§ 2.2-4000 et seq. of the Code of Virginia).
18VAC145-11-20. 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 Board for Professional Soil
Scientists and, Wetland Professionals, and Geologists,
which is the unit of state government empowered by the agency's basic law to
make regulations or decide cases. Actions specified in this chapter may be
fulfilled by state employees as delegated by the agency.
"Basic law" means provisions in the Code of
Virginia that delineate the basic authority and responsibilities of an 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 or staff of the agency 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.
"Town Hall" means the Virginia Regulatory Town
Hall, the website operated by the Virginia Department of Planning and Budget at
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.
VA.R. Doc. No. R12-3267; Filed June 19, 2012, 1:12 p.m.
Final Regulation
REGISTRAR'S NOTICE:
Enactments 38 through 43 of Chapters 803 and 835 of the 2012 Acts of Assembly
merged the Board for Professional Soil Scientists and Wetland Professionals
with the Board for Geology to create the Board for Professional Soil
Scientists, Wetland Professionals, and Geologists. The following action
transfers the Board of Geology regulations numbered 18VAC70-20 to the Board for
Professional Soil Scientists, Wetland Professionals, and Geologists and
renumbers the regulations as 18VAC145-40.
This regulatory action is
excluded from the Administrative Process Act in accordance with § 2.2-4006
A 4 a of
the Code of Virginia, which excludes regulations that are necessary to conform
to changes in Virginia statutory law where no agency discretion is involved.
The Board for Professional Soil Scientists, Wetland Professionals, and
Geologists will receive, consider and respond to petitions by any interested
person at any time with respect to reconsideration or revision.
Title of
Regulation: 18VAC145-40. Regulations for the Geology
Certification Program formerly 18VAC70-20-10 through 18VAC70-20-150;
(adding 18VAC145-40-10 through 18VAC145-40-150).
Statutory Authority: § 54.1-201 of the Code of
Virginia.
Effective Date: August 15, 2012.
Agency Contact: Kathleen R. Nosbisch,
Executive Director, Board for Professional Soil Scientists, Wetland
Professionals, and Geologists, 9960 Mayland Drive,
Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (866) 465-6206, or
email soilscientists@dpor.virginia.gov.
Summary:
Chapters 803 and 835 of the 2012 Acts of Assembly merged
the Board for Geology with the Board for Professional Soil Scientists and
Wetland Professionals based on a recommendation of Governor McDonnell's Commission
on Government Reform and Restructuring. The regulatory action amends the Board
for Geology regulations to reflect the new board name and renumbers the
regulations so that they are placed under the new board in the Virginia
Administrative Code.
CHAPTER 20 40
RULES AND REGULATIONS FOR THE VIRGINIA BOARD FOR GEOLOGY CERTIFICATION
PROGRAM
Part I
General
18VAC70-20-10. 18VAC145-40-10.
Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise:
"Board" means the Board for Geology Professional
Soil Scientists, Wetland Professionals, and Geologists.
"Geologist" means a person engaged in the public
practice of geology.
"Geology" means the science dealing with (i) the earth and its history in general; (ii) the
investigation, prediction, evaluation, and location of materials and structures
which compose the earth; (iii) the natural processes that cause changes in the
earth; and (iv) the application of knowledge of the earth, its processes, and
its constituent rocks, minerals, liquids, gases and other natural materials.
"Practice of geology" means the performance of any
service or work for the general public wherein the principles and methods of
geology are applied.
"Qualified geologist" means an uncertified person
who possesses all the qualifications specified in § 54.1-1403 54.1-2208.2
of the Code of Virginia for certification.
"Related geological science degree" means a degree
that shall include, but not be limited to, a degree in economic geology or
petroleum geology.
"Responsible charge" means the direct control and
supervision of the practice of geology.
"Supervision" means quality control review of all
significant data collection, interpretation and conclusions.
"Virginia certified professional geologist" means a
person who possesses all qualifications specified in this chapter for
certification and whose competence has been attested by the board through
certification.
18VAC70-20-30. 18VAC145-40-20.
Fees.
All fees for application, examination, renewal, and
reinstatement shall be established by the board pursuant to § 54.1-201 of the
Code of Virginia. All fees are nonrefundable and shall not be prorated.
1. The application fee for certification shall be $40.
2. The fee for renewal of certification shall be $35.
3. The fee for examination or reexamination is subject to
contracted charges to the department by an outside vendor. These contracts are
competitively negotiated and bargained for in compliance with the Virginia
Public Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia). Fees may
be adjusted and charged to the candidate in accordance with this contract.
4. The penalty fee for late renewal shall be $25 in addition
to the renewal fee.
5. The reinstatement fee shall be $40.
18VAC70-20-40. 18VAC145-40-30.
Expiration, renewal and fee of certificate holders.
A. Certificates issued under this chapter shall expire on
August 31 of the odd-numbered year following the date of issuance. Certificate
holders shall be notified by mail of the fee and the procedure for certificate
renewal at least 45 days before the certificate expires. Each certificate
holder desiring to renew his certificate shall submit the renewal notice with
the appropriate fee before the certificate expires.
B. There shall be a penalty fee for late renewal assessed in
addition to the renewal fee for any certificate holder failing to renew the
certificate within 30 days following the date of expiration.
C. Failure to receive written notice from the Department of
Professional and Occupational Regulation does not relieve the regulant from the requirement to renew his certificate. If
the certificate holder fails to receive the renewal notice, a copy of the
certificate may be submitted with the required fee.
D. The date a fee is received by the Department of
Professional and Occupational Regulation, or its agent, will be used to
determine whether a penalty fee or the requirement for reinstatement of a
certificate is applicable.
E. Revoked or suspended certificates are not renewable until
reinstated by the board.
18VAC70-20-50. 18VAC145-40-40.
Reinstatements.
If the certificate holder fails to renew the certificate
within six months following the expiration date, the certificate holder will be
required to apply for reinstatement of the certificate. The board may grant
reinstatement of the certificate, or require requalification or reexamination,
or both. The application fee for reinstatement of a certificate shall be the
amount established in 18VAC70-20-30 18VAC145-40-20.
18VAC70-20-60. 18VAC145-40-50.
Status of certification during the period prior to
reinstatement.
A. Reinstated certifications shall continue to have the same
certification number and shall expire on August 31 of the odd-numbered year
following the date of reinstatement.
B. Reinstated certifications shall be regarded as having been
continuously licensed without interruption. Therefore, the holder of the
reinstated certification shall remain under the disciplinary authority of the
board during this entire period and may be held accountable for his activities
during this period.
C. Certifications which are not renewed or reinstated shall
be regarded as expired from the date of the expiration forward.
18VAC70-20-70. 18VAC145-40-60.
Use of seal.
A certified professional geologist may apply a rubber stamp
or preprinted seal to final and complete cover sheets and to each original
sheet of plans or drawings prepared or reviewed and approved by the regulant. The seal may be applied to the cover sheet of
technical reports and specifications prepared or reviewed and approved by the regulant.
1. All seal imprints on final documents shall be signed.
2. Application of the seal and signature shall indicate
acceptance of responsibility for work shown thereon.
3. The seal shall conform in detail and size to the design
illustrated below:
*The number referred to is the number, usually three or four
digits, as shown on the wall certificate and is the
license renewal number issued each biennium as indicated on the licensee's
pocket card. The number will not change every two years, but is permanent.
Part II
Entry
18VAC70-20-80. 18VAC145-40-70.
Qualifications for certification.
A. Each applicant for certification as a certified
professional geologist in Virginia shall:
1. Make application on forms provided by the board;
2. Be of ethical character;
3. Hold a baccalaureate or higher degree from an accredited
college or university with a major in geology, engineering geology, geological
engineering or a related geological science. In the absence of one of the
aforementioned degrees, each applicant shall provide evidence of the
satisfactory completion of 30 semester hours (or the equivalent) of geological
science courses including, but not limited to, the following subjects:
a. Stratigraphy;
b. Structural geology;
c. Mineralogy;
d. Paleontology;
e. Petrology;
f. Geomorphology; and
g. Field geology.
At least 12 semester hours must have been completed in four of
the seven subjects listed in this subsection.
4. Provide the board with written documentation that
demonstrates that the courses satisfactorily completed by the applicant are
equivalent to those required by this section.
5. Have at least seven years of geological work that shall
include either a minimum of three years of geological work under the
supervision of a qualified or certified professional geologist, or a minimum of
three years of experience in responsible charge of geological work. The work
shall include, but not be limited to, one or more of the following areas:
a. Mineralogy.
(1) Identify and classify major rock types.
(2) Identify mineral assemblages.
(3) Determine probable genesis and sequence of mineral
assemblages.
(4) Identify minerals on the basis of chemical composition.
(5) Predict subsurface mineral characteristics on the basis of
exposures and drillholes.
b. Petrography/petrology.
(1) Identify and classify major rock types.
(2) Determine physical properties of rocks.
(3) Determine chemical properties of rocks.
(4) Determine types or degrees of rock alteration.
(5) Determine suites of rock types.
c. Geochemistry.
(1) Establish analytical objectives and approaches.
(2) Evaluate geochemical data.
(3) Construct models based on results of geochemical analysis.
(4) Make recommendations based upon results of geochemical
analyses.
d. Hydrogeology.
(1) Design and interpret hydrologic testing programs.
(2) Utilize chemical data to evaluate hydrogeologic
conditions.
(3) Apply geophysical methods to analyze hydrogeologic
conditions.
(4) Determine physical and chemical properties of aquifers and
vadose zones.
(5) Determine groundwater flow systems.
(6) Evaluate groundwater resources.
(7) Evaluate groundwater quality.
(8) Design wells and drilling programs.
(9) Develop groundwater resource management plans.
(10) Plan and evaluate remedial action programs.
e. Engineering geology.
(1) Provide geological information and interpretations for
engineering design.
(2) Identify and evaluate potential seismic and other geologic
hazards.
(3) Provide geologic consultation during and after
construction.
(4) Develop and interpret engineering geology maps and
sections.
(5) Evaluate materials resources.
(6) Define and establish site selection and evaluation
criteria.
(7) Design and implement field and laboratory programs.
(8) Describe and sample soils for geologic analysis and
materials properties testing.
f. Mining geology.
(1) Formulate exploration programs.
(2) Implement field investigations on prospects.
(3) Perform geologic interpretations for mineral reserves.
(4) Perform economic analyses/appraisals.
(5) Provide geologic interpretations for mine development and
production activities.
(6) Provide geologic interpretations for mine abandonments,
closures, or restorations.
g. Petroleum geology.
(1) Formulate exploration programs.
(2) Implement field investigations on prospects.
(3) Perform geologic interpretations of physical properties
and hydrocarbon reserves.
(4) Perform petroleum economic analyses/appraisals.
(5) Provide geologic interpretations for development and
production activities.
(6) Provide geologic interpretations for abandonments,
closures, or restorations.
B. Each year of full-time undergraduate study in the
geological sciences shall count as one-half year of experience up to a maximum
of two years, and each year of full-time graduate study shall count as a year
of experience up to a maximum of three years. Credit for undergraduate and
graduate study shall in no case exceed a total of four years toward meeting the
requirements for at least seven years of geological work. The board may
consider in lieu of the above-described geological work, the cumulative total
of geological work or geological research of persons occupying research or
post-graduate positions as well as those teaching geology courses at the
college or university level, provided such work or research can be demonstrated
to be of a sufficiently responsible nature to be equivalent to the geological
work required above.
C. A year of full-time employment is a minimum of 1,760 hours
or 220 workdays in a 12-month period. More than 1,760 hours or 220 workdays
during a 12-month period shall not be considered as more than one year of
full-time experience. Partial credit may be given for actual hours of work or
workdays experience if the applicant works as a geologist less than full time.
D. Each applicant shall successfully pass an appropriate
examination approved by the board and designed to demonstrate that the
applicant has the necessary knowledge and skill to exercise the
responsibilities of the public practice of geology.
18VAC70-20-90. 18VAC145-40-80.
Waiver of examination.
The board may waive the examination requirement for any
applicant who makes written application, otherwise meets the requirements of
Chapter 14 22 (§ 54.1-1400 54.1-2200 et seq.) of
Title 54.1 of the Code of Virginia and also meets one of the following
conditions:
1. Provides evidence of at least 12 years of geological work
that includes the geological work as specified in 18VAC70-20-80 18VAC-145-40-70;
or
2. Provides evidence of an unexpired certificate of
registration, certification or license to engage in the practice of geology
issued on the basis of comparable requirements by a proper authority of a
state, territory or possession of the United States or the District of
Columbia.
Part III
Standards of Practice and Conduct
18VAC70-20-100. 18VAC145-40-90.
Disclosure.
A certified professional geologist:
1. Shall not submit any false statements or fail to disclose
any facts requested concerning his or another's application for certification.
2. Shall not falsely or maliciously attempt to injure the
reputation or business of another.
3. Shall not engage in any fraud, deceit, or misrepresentation
in advertising, in soliciting or in providing professional services.
4. Shall not knowingly sign, stamp, or seal any plans,
drawings, blueprints, surveys, reports, specifications, or other documents not
prepared or reviewed and approved by the certificate holder.
5. Shall make full disclosure to all parties of:
a. Any transaction involving payments made to any person for
the purpose of securing a contract, assignment, or engagement; or
b. Any monetary, financial or beneficial interest he may have
in any contract or entity providing goods or services, other than his
professional services, to a project or engagement.
6. Shall express an opinion only when it is founded on
adequate knowledge of established facts at issue, on a background of technical
competence in the subject matter, and on an honest conviction of the accuracy
of the testimony when serving as an expert or technical witness before any
court, commission, or other tribunal.
7. Shall provide adequate representation of his qualifications
and scope of responsibilities for all previous experience claimed when
negotiating with prospective clients.
18VAC70-20-105. 18VAC145-40-100.
Change of address or name.
Each certified professional geologist shall notify the board,
in writing, of any change of address or name. This notification shall be sent
to the board within 30 days after such change of address or name.
18VAC70-20-110. 18VAC145-40-110.
Compliance with other laws.
A certified professional geologist:
1. Shall comply with all federal, state, and local building,
fire, safety, real estate, or mining codes, as well as any other laws, codes,
ordinances, or regulations pertaining to the practice of geology.
2. Shall not violate any state or federal criminal statute,
including fraud, misrepresentation, embezzlement, bribery, theft, forgery, or
breach of fiduciary duty relating to his professional practice.
3. Shall immediately notify the client or employer and the
appropriate regulatory agency if his professional judgment is overruled and not
adhered to in circumstances of a serious threat to the public health, safety,
or welfare. If appropriate remedial action is not taken within a reasonable
amount of time after making the report, he shall notify the appropriate
governmental authority of the specific nature of the public threat.
4. Shall give written notice to the board, and shall cooperate
with the board and the department in furnishing any further information or
assistance needed, if he knows or believes that another geologist/firm may be
violating any of the provisions of Chapter 14 22 (§ 54.1-1400
54.1-2200 et seq.) of Title 54.1 of the Code of Virginia, or this
chapter.
18VAC70-20-120. 18VAC145-40-120.
Conflicts of interest.
A certified professional geologist shall not:
1. Accept any work on any project or other professional
engagement when a duty to a client or to the public would conflict with his
personal interest or the interest of another client, unless immediate
disclosure of all material facts of the conflict is made to each client related
to the project or engagement.
2. Accept compensation for services related to the same
project or professional engagement from more than one party without making
prior full disclosure to all parties involved.
3. Offer, either directly or indirectly, any commission,
political contribution, or other consideration in seeking work except to secure
a salaried position through employment agencies.
18VAC70-20-130. 18VAC145-40-130.
Competence for assignments.
A certified professional geologist:
1. Shall exercise reasonable care when rendering professional
services and shall apply the technical knowledge and skills ordinarily applied
by practicing geologists.
2. Shall not accept any professional assignment or engagement
that he is not competent to perform by way of education, technical knowledge,
or experience. An assignment requiring education or experience outside his
field of competence may be accepted provided:
a. His professional services are restricted to those phases of
the project in which he is qualified; and
b. All other phases of the project are performed by qualified
associates, consultants, or employees.
18VAC70-20-140. 18VAC145-40-140.
Grounds for suspension, revocation, or denial to renew or
grant certification.
The board may suspend, revoke, or refuse to renew the certification
of any geologist who, after a formal hearing as provided for in the
Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), is
found to have committed:
1. Fraud or deceit in obtaining or renewing certification (See
subdivision 5 of § 54.1-111 of the Code of Virginia);
2. Any violation of Part III -- Standards of Practice and
Conduct, other regulations of the board, or governing statutes of the board;
3. An act or acts of gross negligence, incompetence, or
misconduct in the practice of geology as a certified professional geologist; or
4. Any conviction of a felony that in the opinion of the board
would adversely affect the practice of geology.
18VAC70-20-150. 18VAC145-40-150.
Reissuance of certificate after revocation.
An individual whose certificate has been revoked in
accordance with 18VAC70-20-140 18VAC145-40-140 shall file a new
application and obtain approval of the board to regain the certificate.
NOTICE: The forms
administering this regulation are not being published; however, the forms are
available from the agency contact or may be viewed at the Office of the
Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.
FORMS (18VAC70-20) (18VAC145-40)
Certification Application, 28CERT (rev. 6/00).
Experience Log, 28EXP (rev. 1/05).
VA.R. Doc. No. R12-3263; Filed June 19,
2012, 1:11 p.m.
w –––––––––––––––––– w
TITLE 19. PUBLIC SAFETY
DEPARTMENT OF STATE POLICE
Final Regulation
REGISTRAR'S NOTICE:
The Department of State Police is claiming an exclusion from the Administrative
Process Act in accordance with § 2.2-4006 A 4 a
of the Code of Virginia, which excludes regulations that are necessary to
conform to changes in Virginia statutory law where no agency discretion is
involved. The Department of State Police will receive, consider, and respond to
petitions by any interested person at any time with respect to reconsideration
or revision.
Title of Regulation: 19VAC30-100. Regulations
Governing Purchases of Handguns in Excess of One Within
A 30-Day Period (repealing 19VAC30-100-10 through 19VAC30-100-110).
Statutory Authority: § 18.2-308.2:2 of the Code of
Virginia.
Effective Date: August 15, 2012.
Agency Contact: LTC Robert Kemmler,
Regulatory Coordinator, Department of State Police, Bureau of Administrative
and Support Services, P.O. Box 27472, Richmond, VA 23261-7472, telephone (804)
674-4606, FAX (804) 674-2234, or email robert.kemmler@vsp.virginia.gov.
Summary:
Chapters 37 and 257 of the 2012 Acts of Assembly eliminated
the prohibition on purchasing more than one handgun in a 30-day period.
Therefore, this regulation is repealed.
VA.R. Doc. No. R12-3206; Filed June 29, 2012, 4:01 p.m.
w –––––––––––––––––– w
TITLE 22. SOCIAL SERVICES
STATE BOARD OF SOCIAL SERVICES
Final Regulation
REGISTRAR'S NOTICE:
The State Board of Social Services is claiming an exclusion from the
Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that
are necessary to conform to changes in Virginia statutory law where no agency
discretion is involved. The State Board of Social Services will receive,
consider, and respond to petitions by any interested person at any time with
respect to reconsideration or revision.
Title of Regulation: 22VAC40-90. Regulation for
Background Checks for Assisted Living Facilities and Adult Day Care Centers (amending 22VAC40-90-10).
Statutory Authority: § 63.2-217 and Chapter 17 (§ 63.2-1700
et seq.) of Title 63.2 of the Code of Virginia.
Effective Date: August 15, 2012.
Agency Contact: Karen Cullen, Department of Social
Services, Division of Licensing Programs, 801 East Main Street, Richmond, VA
23219, telephone (804) 726-7152, FAX (804) 726-7132, TTY (800) 828-1120, or
email karen.cullen@dss.virginia.gov.
Summary:
This action amends the definition of barrier crime by
adding a felony violation of a protective order as set out in § 16.1-253.2
of the Code of Virginia, abduction as set out in subsection A or B of 18.2-47,
extortion by threat as set out in 18.2-59, and felony violation of a protective
order as set out in 18.2-60.4 to align the regulation with the wording in the
Code of Virginia.
Part I
Introduction
22VAC40-90-10. Definitions.
The following words and terms when used in conjunction with
this chapter shall have the following meanings:
"Applicant for licensure" means the entity applying
for approval as a licensed assisted living facility. An applicant may be an
individual, association, partnership, limited liability company, corporation or
public agency.
"Barrier crimes" means certain crimes that
automatically bar individuals convicted of same from employment at a licensed
assisted living facility or adult day care center and that automatically bar
licensure of applicants convicted of same from assisted living facility
licensure. These crimes, as specified by § 63.2-1719 of the Code of
Virginia, are felony violations of a protective order as set out in § 16.1-253.2;
murder or manslaughter as set out in Article 1 (§ 18.2-30 et seq.) of
Chapter 4 of Title 18.2; malicious wounding by mob as set out in § 18.2-41;
abduction as set out in subsection A or B of § 18.2-47; abduction for
immoral purposes as set out in § 18.2-48; assaults and bodily woundings as set out in Article 4 (§ 18.2-51 et seq.)
of Chapter 4 of Title 18.2; robbery as set out in § 18.2-58; carjacking as set
out in § 18.2-58.1; extortion by threat as set out in § 18.2-59;
threats of death or bodily injury as set out in § 18.2-60; felony stalking as
set out in § 18.2-60.3; felony violation of a protective order as set
out in § 18.2-60.4; sexual assault as set out in Article 7 (§ 18.2-61
et seq.) of Chapter 4 of Title 18.2; arson as set out in Article 1 (§ 18.2-77
et seq.) of Chapter 5 of Title 18.2; drive-by shooting as set out in §
18.2-286.1; use of a machine gun in a crime of violence as set out in §
18.2-289; aggressive use of a machine gun as set out in § 18.2-290; use of a
sawed-off shotgun in a crime of violence as set out in subsection A of § 18.2-300;
pandering as set out in § 18.2-355; crimes against nature involving children as
set out in § 18.2-361; incest as set out in § 18.2-366; taking indecent liberties
with children as set out in § 18.2-370 or § 18.2-370.1; abuse and neglect of
children as set out in § 18.2-371.1; failure to secure medical attention for an
injured child as set out in § 18.2-314; obscenity offenses as set out in §
18.2-374.1; possession of child pornography as set out in § 18.2-374.1:1;
electronic facilitation of pornography as set out in § 18.2-374.3; abuse and
neglect of incapacitated adults as set out in § 18.2-369; employing or
permitting a minor to assist in an act constituting an offense under Article 5
(§ 18.2-372 et seq.) of Chapter 8 of Title 18.2 as set out in § 18.2-379;
delivery of drugs to prisoners as set out in § 18.2-474.1; escape from jail as
set out in § 18.2-477; felonies by prisoners as set out in § 53.1-203; or
an equivalent offense in another state. Applicants for employment convicted of
one misdemeanor barrier crime not involving abuse or neglect may be hired if
five years have elapsed following the conviction.
"Central Criminal Records Exchange" means the
information system containing conviction data of those crimes committed in
Virginia, maintained by the Department of State Police, through which the
criminal history record request form is processed.
"Criminal history record request" means the
Department of State Police form used to authorize the State Police to generate
a criminal history record report on an individual.
"Criminal history record report" means either the
criminal record clearance or the criminal history record issued by the Central
Criminal Records Exchange, Department of State Police. The criminal record
clearance provides conviction data only related to barrier crimes; the criminal
history record discloses all known conviction data.
"Employee" means compensated personnel working at a
facility regardless of role, service, age, function or duration of employment
at the facility. Employee also includes those individuals hired through a
contract to provide services for the facility.
"Facility" means an assisted living facility or
adult day care center subject to licensure by the Department of Social
Services.
"Sworn statement or affirmation" means a document
to be completed, signed, and submitted for licensure or employment. The
document discloses the licensure applicant's or employment applicant's criminal
convictions and pending criminal charges that occurred within or outside the
Commonwealth of Virginia. For applicants for licensure as an assisted living
facility, the document also discloses whether or not the applicant has been the
subject of a founded complaint of child abuse or neglect within or outside the
Commonwealth of Virginia. This is required as specified in §§ 63.2-1720
and 63.2-1721 of the Code of Virginia.
VA.R. Doc. No. R12-3172; Filed June 21, 2012, 3:27 p.m.
Final Regulation
REGISTRAR'S NOTICE:
The State Board of Social Services is claiming an exclusion from the
Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that
are necessary to conform to changes in Virginia statutory law where no agency
discretion is involved. The State Board of Social Services will receive,
consider, and respond to petitions by any interested person at any time with
respect to reconsideration or revision.
Title of Regulation: 22VAC40-705. Child Protective
Services (amending 22VAC40-705-40).
Statutory Authority: §§ 63.2-217 and 63.2-1500 of
the Code of Virginia.
Effective Date: August 15, 2012.
Agency Contact: Rita Katzman, CPS
Program Manager, Department of Social Services, Division of Family Services,
801 East Main Street, Richmond, VA 23219, telephone (804) 726-7554, FAX (804)
726-7499, TTY (800) 828-1120, or email rita.katzman@dss.virginia.gov.
Summary:
This regulatory action amends matters related to mandated reporting of child abuse and neglect. The
amendments (i) require persons who make a report on
behalf of another mandated reporter to provide feedback to the initial
reporter; (ii) reduce the timeframe considered for failure to report suspicions
of child abuse and neglect by mandated reporters from 72 to 24 hours; (iii) add
a penalty of a Class 1 misdemeanor for failure to report cases of rape, sodomy,
or object sexual penetration; (iv) add a stipulation that if a person has
actual knowledge that a report has been made, he is not required to make the
same report; (v) regarding infants exposed to controlled substances before
birth, change the term "attending physician" to "health care
provider," change the term "fetal alcohol syndrome" to
"fetal alcohol spectrum disorder," and change the term "blood
and urine tests" to "toxicology studies of the child"; and (vi) clarify
language regarding the ability of the attending physician to designate hospital
staff to make a report to Child Protective Services.
22VAC40-705-40. Complaints and reports of suspected child abuse
and/or neglect.
A. Persons who are mandated to report are those individuals
defined in § 63.2-1509 of the Code of Virginia.
1. Mandated reporters shall report immediately any suspected
abuse or neglect that they learn of in their professional capacity. No person
shall be required to make a report pursuant to § 63.2-1509 of the Code of
Virginia if the person has actual knowledge that the same matter has already
been reported to the local department or the department's toll-free child abuse
and neglect hotline.
2. Pursuant to § 63.2-1509 of the Code of Virginia, if
information is received by a teacher, staff member, resident, intern, or nurse
in the course of his professional services in a hospital, school, or similar
institution, such person may, in place of said report, immediately notify the
person in charge of the institution or department, or his designee, who shall
then make such report forthwith. If the initial report of suspected abuse or
neglect is made to the person in charge of the institution or department, or
his designee, such person shall (i) notify the
teacher, staff member, resident, intern, or nurse who made the initial report
when the report of suspected child abuse or neglect is made to the local
department or to the department's toll-free child abuse and neglect hotline;
(ii) provide the name of the individual receiving the report; and (iii) forward
any communication resulting from the report, including any information about
any actions taken regarding the report, to the person who made the initial
report.
2. 3. Mandated reporters shall disclose all
information that is the basis for the suspicion of child abuse or neglect and
shall make available, upon request, to the local department any records and
reports that document the basis for the complaint and/or report.
3. 4. A mandated reporter's failure to report within
72 as soon as possible, but no longer than 24 hours of the first
suspicion after having reason to suspect a reportable offense of
child abuse or neglect shall result in a fine. In cases evidencing acts of
rape, sodomy, or object sexual penetration as defined in Article 7 (§ 18.2-61
et seq.) of Chapter 4 of Title 18.2 of the Code of Virginia, a person who
knowingly and intentionally fails to make the report required pursuant to § 63.2-1509
of the Code of Virginia shall be guilty of a Class 1 misdemeanor.
4. 5. Pursuant to § 63.2-1509 B of the Code of
Virginia, certain specified facts indicating that a newborn infant may have
been exposed to controlled substances prior to birth or a positive drug
toxicology of the mother indicating the presence of a controlled substance are
sufficient to suspect that a child is abused or neglected. A diagnosis of fetal
alcohol syndrome is also sufficient a "reason to suspect that a
child is abused or neglected" shall include (i)
a finding made by a health care provider within six weeks of the birth of a
child that the results of toxicology studies of the child indicate the presence
of a controlled substance that was not prescribed for the mother by a physician;
(ii) a finding made by a health care provider within six weeks of the birth of
a child that the child was born dependent on a controlled substance that was
not prescribed by a physician for the mother and has demonstrated withdrawal
symptoms; (iii) a diagnosis made by a health care provider at any time
following a child's birth that the child has an illness, disease, or condition
which, to a reasonable degree of medical certainty, is attributable to in utero
exposure to a controlled substance that was not prescribed by a physician for
the mother or the child; or (iv) a diagnosis made by a health care provider at
any time following a child's birth that the child has a fetal alcohol spectrum
disorder attributable to in utero exposure to alcohol. When "reason to
suspect" is based upon this subsection, such fact shall be included in the
report along with the facts relied upon by the person making the report.
Any report made pursuant to § 63.2-1509 A of the Code of Virginia constitutes a
valid report of abuse or neglect and requires a child protective services
investigation or family assessment, unless the mother sought treatment or
counseling as required in this section and pursuant to § 63.2-1505 B of the
Code of Virginia.
a. The attending physician may designate a hospital staff
person to make the report to the local department on behalf of the attending
physician. That hospital staff person may include a nurse or hospital social
worker.
b. a. Pursuant to § 63.2-1509 of the Code of
Virginia, whenever a physician health care provider makes a
finding pursuant to § 63.2-1509 A of the Code of Virginia, then the physician
health care provider or his designee must make a report to child
protective services immediately. Pursuant to § 63.2-1509 D of the Code of Virginia,
a physician health care provider who fails to make a report
pursuant to § 63.2-1509 A of the Code of Virginia is subject to a fine.
c. b. When a report or complaint alleging abuse
or neglect is made pursuant to § 63.2-1509 A of the Code of Virginia, then the
local department must immediately assess the infant's circumstances and any
threat to the infant's health and safety. Pursuant to 22VAC40-705-110 A, the
local department must conduct an initial assessment.
d. c. When a report or complaint alleging abuse
or neglect is made pursuant to § 63.2-1509 A of the Code of Virginia, then the
local department must immediately determine whether to petition a juvenile and
domestic relations district court for any necessary services or court orders
needed to ensure the safety and health of the infant.
e. d. Within five days of receipt of a report
made pursuant to § 63.2-1509 A of the Code of Virginia, the local
department shall invalidate the complaint if the following two conditions are
met: (i) the mother of the infant sought substance
abuse counseling or treatment during her pregnancy prior to the infant's birth
and (ii) there is no evidence of child abuse and/or neglect by the mother after
the infant's birth.
(1) The local department must notify the mother immediately
upon receipt of a complaint made pursuant to § 63.2-1509 A of the Code of
Virginia. This notification must include a statement informing the mother that,
if the mother fails to present evidence within five days of receipt of the
complaint that she sought substance abuse counseling/treatment during the
pregnancy, the report will be accepted as valid and an investigation or family
assessment initiated.
(2) If the mother sought counseling or treatment but did not
receive such services, then the local department must determine whether the
mother made a substantive effort to receive substance abuse treatment before
the child's birth. If the mother made a substantive effort to receive treatment
or counseling prior to the child's birth, but did not receive such services due
to no fault of her own, then the local department should invalidate the
complaint or report.
(3) If the mother sought or received substance abuse
counseling or treatment, but there is evidence, other than exposure to a
controlled substance, that the child may be abused or neglected, then the local
department may initiate the investigation or family assessment.
f. e. Substance abuse counseling or treatment
includes, but is not limited to, education about the impact of alcohol,
controlled substances and other drugs on the fetus and on the maternal
relationship; education about relapse prevention to recognize personal and
environmental cues which may trigger a return to the use of alcohol or other
drugs.
g. f. The substance abuse counseling or
treatment should attempt to serve the purposes of improving the pregnancy
outcome, treating the substance abuse disorder, strengthening the maternal relationship
with existing children and the infant, and achieving and maintaining a sober
and drug-free lifestyle.
h. g. The substance abuse counseling or
treatment services must be provided by a professional. Professional substance
abuse treatment or counseling may be provided by a certified substance abuse
counselor or a licensed substance abuse treatment practitioner.
i. h. Facts
indicating that the infant may have been exposed to controlled substances prior
to birth are not sufficient, in and of themselves, to render a founded
disposition of abuse or neglect. The local department must establish, by a
preponderance of the evidence, that the infant was abused or neglected
according to the statutory and regulatory definitions of abuse and neglect.
j. i. The local
department may provide assistance to the mother in locating and receiving
substance abuse counseling or treatment.
B. Persons who may report child abuse and/or neglect include
any individual who suspects that a child is being abused and/or neglected
pursuant to § 63.2-1510 of the Code of Virginia.
C. Complaints and reports of child abuse and/or neglect may
be made anonymously. An anonymous complaint, standing alone, shall not meet the
preponderance of evidence standard necessary to support a founded
determination.
D. Any person making a complaint and/or report of child abuse
and/or neglect shall be immune from any civil or criminal liability in
connection therewith, unless the court decides that such person acted in bad
faith or with malicious intent pursuant to § 63.2-1512 of the Code of Virginia.
E. When the identity of the reporter is known to the
department or local department, these agencies shall make every effort to
protect the reporter's identity. Upon request, the local department shall advise
the person who was the subject of an unfounded investigation if the complaint
or report was made anonymously.
F. If a person suspects that he is the subject of a report or
complaint of child abuse and/or neglect made in bad faith or with malicious intent,
that person may petition the court for access to the record including the
identity of the reporter or complainant pursuant to § 63.2-1514 of the Code of
Virginia.
G. Any person age 14 years or older who makes or causes to be
made a knowingly false complaint or report of child abuse and/or neglect and is
convicted shall be guilty of a Class 1 misdemeanor for a first offense pursuant
to § 63.2-1513 of the Code of Virginia.
1. A subsequent conviction results in a Class 6 felony.
2. Upon receipt of notification of such conviction, the
department will retain a list of convicted reporters.
3. The subject of the records may have the records purged upon
presentation of proof of such conviction.
H. To make a complaint or report of child abuse and/or neglect,
a person may telephone the department's toll-free child abuse and neglect
hotline or contact a local department of jurisdiction pursuant to § 63.2-1510
of the Code of Virginia.
1. The local department of jurisdiction that first receives a
complaint or report of child abuse and/or neglect shall assume responsibility
to ensure that a family assessment or an investigation is conducted.
2. A local department may ask another local department that is
a local department of jurisdiction to assist in conducting the family
assessment or investigation. If assistance is requested, the local department
shall comply.
3. A local department may ask another local department through
a cooperative agreement to assist in conducting the family assessment or
investigation.
4. If a local department employee is suspected of abusing
and/or neglecting a child, the complaint or report of child abuse and/or
neglect shall be made to the juvenile and domestic relations district court of
the county or city where the alleged abuse and/or neglect was discovered. The
judge shall assign the report to a local department that is not the employer of
the subject of the report pursuant to §§ 63.2-1509 and 63.2-1510 of the
Code of Virginia. The judge may consult with the department in selecting a
local department to respond.
VA.R. Doc. No. R12-3179; Filed June 21, 2012, 3:22 p.m.
Final Regulation
REGISTRAR'S NOTICE:
The State Board of Social Services is claiming an exclusion from the
Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that
are necessary to conform to changes in Virginia statutory law where no agency
discretion is involved. The State Board of Social Services will receive,
consider, and respond to petitions by any interested person at any time with
respect to reconsideration or revision.
Title of Regulation: 22VAC40-740. Adult Protective
Services (amending 22VAC40-740-10, 22VAC40-740-50).
Statutory Authority: § 63.2-217 and Article 2 (§ 63.2-1603
et seq.) of Chapter16 of Title 63.2 of the Code of Virginia.
Effective Date: August 15, 2012.
Agency Contact: Paige McCleary,
Program Consultant, Department of Social Services, Division of Family Services,
801 East Main Street, Richmond, VA 23219, telephone (804) 726-7536, FAX (804)
726-7895, TTY (800) 828-1120, or email paige.mccleary@dss.virginia.gov.
Summary:
This action (i) amends the definition
of incapacitated person by changing the term "mental retardation" to "intellectual
disability" and (ii) changes the name of the Department for the Aging to
the Department for Aging and Rehabilitative Services.
22VAC40-740-10. Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise:
"Abuse" means the willful infliction of physical
pain, injury or mental anguish or unreasonable confinement.
"Adult" means any person in the Commonwealth who is
abused, neglected, or exploited, or is at risk of being abused, neglected, or
exploited; and is 18 years of age or older and incapacitated, or is 60 years of
age and older.
"Adult protective services" means the receipt, investigation
and disposition of complaints and reports of adult abuse, neglect, and
exploitation of adults 18 years of age and over who are incapacitated and
adults 60 years of age and over by the local department of social services.
Adult protective services also include the provision of casework and care
management by the local department in order to stabilize the situation or to
prevent further abuse, neglect, and exploitation of an adult at risk of abuse,
neglect and exploitation. If appropriate and available, adult protective
services may include the direct provision of services by the local department
or arranging for home-based care, transportation, adult day services, meal
service, legal proceedings, alternative placements and other activities to protect
the adult and restore self-sufficiency to the extent possible.
"Collateral" means a person whose personal or
professional knowledge may help confirm or rebut the allegations of adult
abuse, neglect or exploitation or whose involvement may help ensure the safety
of the adult.
"Conservator" means a person appointed by the court
who is responsible for managing the estate and financial affairs of an
incapacitated person, and where the context plainly indicates, includes a
"limited conservator" or a "temporary conservator."
"Department" means the Virginia Department of
Social Services.
"Director" means the director or his delegated
representative of the department of social services of the city or county in
which the adult resides or is found.
"Disposition" means the determination of whether or
not adult abuse, neglect or exploitation has occurred.
"Documentation" means information and materials,
written or otherwise, concerning allegations, facts and evidence.
"Exploitation" means the illegal use of an
incapacitated adult or his resources for another's profit or advantage. This
includes acquiring an adult's resources through the use of the adult's mental
or physical incapacity, the disposition of the incapacitated adult's property
by a second party to the advantage of the second party and to the detriment of
the incapacitated adult, misuse of funds, acquiring an advantage through
threats to withhold needed support or care unless certain conditions are met,
or persuading an incapacitated adult to perform services including sexual acts
to which the adult lacks the capacity to consent.
"Guardian" means a person who has been legally
invested with the authority and charged with the duty of taking care of the
person and managing his property and protecting the rights of the person who
has been declared by the circuit court to be incapacitated and incapable of
administering his own affairs. The powers and duties of the guardian are
defined by the court and are limited to matters within the areas where the person
in need of a guardian has been determined to be incapacitated.
"Guardian ad litem" means an attorney appointed by
the court to represent the interest of the adult for whom a guardian or
conservator is requested. On the hearing of the petition for appointment of a
guardian or conservator, the guardian ad litem advocates for the adult who is
the subject of the hearing, and his duties are usually concluded when the case
is decided.
"Incapacitated person" means any adult who is
impaired by reason of mental illness, mental retardation intellectual
disability, physical illness or disability, advanced age or other causes to
the extent that the adult lacks sufficient understanding or capacity to make,
communicate or carry out reasonable decisions concerning his or her well-being.
This definition is for the purpose of establishing an adult's eligibility for
adult protective services and such adult may or may not have been found
incapacitated through court procedures.
"Involuntary protective services" means those
services authorized by the court for an adult who has been determined to need
protective services and who has been adjudicated incapacitated and lacking the
capacity to consent to receive the needed protective services.
"Lacks capacity to consent" means a preliminary
judgment of a local department of social services social worker that an adult
is unable to consent to receive needed services for reasons that relate to
emotional or psychiatric problems, mental retardation intellectual
disability, developmental delay, or other reasons which impair the adult's
ability to recognize a substantial risk of death or immediate and serious harm
to himself. The lack of capacity to consent may be either permanent or temporary.
The worker must make a preliminary judgment that the adult lacks capacity to
consent before petitioning the court for authorization to provide protective
services on an emergency basis pursuant to § 63.2-1609 of the Code of
Virginia.
"Legally incapacitated" means that the person has
been adjudicated incapacitated by a circuit court because of a mental or
physical condition which renders him, either wholly or partially, incapable of
taking care of himself or his estate.
"Legally incompetent" means a person who has been
adjudicated incompetent by a circuit court because of a mental condition which
renders him incapable of taking care of his person or managing his estate.
"Legitimate interest" means a lawful, demonstrated
privilege to access the information as defined in § 63.2-104 of the Code of
Virginia.
"Local department" means any local department of
social services in the Commonwealth of Virginia.
"Mandated reporters" means those persons who are
required to report pursuant to § 63.2-1606 of the Code of Virginia when such
persons have reason to suspect that an adult is abused, neglected, or exploited
or is at risk of adult abuse, neglect, or exploitation.
"Mental anguish" means a state of emotional pain or
distress resulting from activity (verbal or behavioral) of a perpetrator. The
intent of the activity is to threaten or intimidate, cause sorrow or fear,
humiliate, change behavior or ridicule. There must be evidence that it is the
perpetrator's activity that has caused the adult's feelings of pain or
distress.
"Neglect" means that an adult is living under such
circumstances that he is not able to provide for himself or is not being
provided such services as are necessary to maintain his physical and mental
health and that the failure to receive such necessary services impairs or
threatens to impair his well-being. However, no adult shall be considered
neglected solely on the basis that such adult is receiving religious nonmedical
treatment or religious nonmedical nursing care in lieu of medical care,
provided that such treatment or care is performed in good faith and in
accordance with the religious practices of the adult and there is written or
oral expression of consent by that adult. Neglect includes the failure of a
caregiver or another responsible person to provide for basic needs to maintain
the adult's physical and mental health and well-being, and it includes the
adult's neglect of self. Neglect includes, but is not limited to:
1. The lack of clothing considered necessary to protect a
person's health;
2. The lack of food necessary to prevent physical injury or to
maintain life, including failure to receive appropriate food for adults with
conditions requiring special diets;
3. Shelter that is not structurally safe; has rodents or other
infestations which may result in serious health problems; or does not have a
safe and accessible water supply, safe heat source or sewage disposal. Adequate
shelter for an adult will depend on the impairments of an adult; however, the
adult must be protected from the elements that would seriously endanger his
health (e.g., rain, cold or heat) and could result in serious illness or
debilitating conditions;
4. Inadequate supervision by a caregiver (paid or unpaid) who
has been designated to provide the supervision necessary to protect the safety
and well-being of an adult in his care;
5. The failure of persons who are responsible for caregiving
to seek needed medical care or to follow medically prescribed treatment for an
adult, or the adult has failed to obtain such care for himself. The needed
medical care is believed to be of such a nature as to result in physical and/or
mental injury or illness if it is not provided;
6. Medical neglect includes, but is not limited to, the
withholding of medication or aids needed by the adult such as dentures, eye
glasses, hearing aids, walker, etc. It also includes the unauthorized
administration of prescription drugs, over- or under-medicating, and the
administration of drugs for other than bona fide medical reasons, as determined
by a licensed health care professional; and
7. Self-neglect by an adult who is not meeting his own basic
needs due to mental and/or physical impairments. Basic needs refer to such
things as food, clothing, shelter, health or medical care.
"Notification" means informing designated and
appropriate individuals of the local department's action and the individual's
rights.
"Preponderance of evidence" means the evidence as a
whole shows that the facts are more probable and credible than not. It is
evidence that is of greater weight or more convincing than the evidence offered
in opposition.
"Report" means an allegation by any person that an
adult is in need of protective services. The term "report" shall
refer to both reports and complaints of abuse, neglect, and exploitation of
adults. The report may be made orally or in writing to the local department or
by calling the Adult Protective Services Hotline.
"Service plan" means a plan of action to address
the service needs of an adult in order to protect the adult, to prevent future
abuse, neglect or exploitation, and to preserve the autonomy of the adult
whenever possible.
"Unreasonable confinement" means the use of
restraints (physical or chemical), isolation, or any other means of confinement
without medical orders, when there is no emergency and for reasons other than
the adult's safety or well-being or the safety of others.
"Valid report" means the local department of social
services has evaluated the information and allegations of the report and determined
that the local department shall conduct an investigation because all of the
following elements are present:
1. The alleged victim adult is 60 years of age or older or is
18 years of age or older and is incapacitated;
2. There is a specific adult with enough identifying
information to locate the adult;
3. Circumstances allege abuse, neglect or exploitation or risk
of abuse, neglect or exploitation; and
4. The local department receiving the report is a local
department of jurisdiction as described in 22VAC40-740-21.
"Voluntary protective services" means those
services provided to an adult who, after investigation by a local department,
is determined to be in need of protective services and consents to receiving
the services so as to prevent further abuse, neglect, and exploitation of an
adult at risk of abuse, neglect and exploitation.
22VAC40-740-50. Disclosure of adult protective services
information.
A. This chapter describes the protection of confidential
information including a description of when such information must be disclosed,
when such disclosure of the information is at the discretion of the local
department, what information may be disclosed, and the procedure for disclosing
the information.
B. Department staff having legitimate interest shall have
regular access to adult protective services records maintained by the local
department.
C. The following agencies have licensing, regulatory and
legal authority for administrative action or criminal investigations, and they
have a legitimate interest in confidential information when such information is
relevant and reasonably necessary for the fulfillment of their licensing,
regulatory and legal responsibilities:
1. Department of Behavioral Health and Developmental Services;
2. Virginia Office for Protection and Advocacy;
3. Office of the Attorney General, including the Medicaid
Fraud Control Program;
4. Department for the Aging and Rehabilitative
Services;
5. Department of Health, including the Center for Quality
Health Care Services and Consumer Protection and the Office of the Chief
Medical Examiner;
6. Department of Medical Assistance Services;
7. Department of Health Professions;
8. Department for the Blind and Vision Impaired;
9. Department of Social Services, including the Division of
Licensing Programs;
10. The Office of the State Long-Term Care Ombudsman and local
ombudsman;
11. Law-enforcement agencies;
12. Medical examiners;
13. Adult fatality review teams;
14. Prosecutors; and
15. Any other entity deemed appropriate by the commissioner or
local department director that demonstrates a legitimate interest.
D. The local department shall disclose all relevant
information to representatives of the agencies identified in subsection C of
this section except the identity of the person who reported the abuse, neglect
or exploitation unless the reporter authorizes the disclosure of his identity
or the disclosure is ordered by the court.
E. The local department shall refer any appropriate matter
and all relevant documentation to the appropriate licensing, regulatory or
legal authority for administrative action or criminal investigation.
F. Local departments may release information to the following
persons when the local department has determined the person making the request
has legitimate interest in accordance with § 63.2-104 of the Code of Virginia
and the release of information is in the best interest of the adult:
1. Representatives of public and private agencies including
community services boards, area agencies on aging and local health departments
requesting disclosure when the agency has legitimate interest;
2. A physician who is treating an adult whom he reasonably
suspects is abused, neglected or exploited;
3. The adult's legally appointed guardian or conservator;
4. A guardian ad litem who has been appointed for an adult who
is the subject of an adult protective services report;
5. A family member who is responsible for the welfare of an
adult who is the subject of an adult protective services report;
6. An attorney representing a local department in an adult
protective services case;
7. The Social Security Administration; or
8. Any other entity that demonstrates to the commissioner or
local department director that legitimate interest is evident.
G. Local departments are required to disclose information
under the following circumstances:
1. When disclosure is ordered by a court;
2. When a person has made an adult protective services report
and an investigation has been completed; or
3. When a request for access to information is made pursuant
to the Government Data Collection and Dissemination Practices Act (§ 2.2-3800
et seq. of the Code of Virginia).
H. Any or all of the following specific information may be
disclosed at the discretion of the local department to agencies or persons
specified in subsection F of this section:
1. Name, address, age, race, and gender of the adult who is
the subject of the request for information;
2. Name, address, age, race, and gender of the person who is
alleged to have perpetrated the abuse, neglect, or exploitation;
3. Description of the incident or incidents of abuse, neglect,
or exploitation;
4. Description of medical problems to the extent known;
5. Disposition of the adult protective services report; and
6. The protective service needs of the adult.
I. The identity of the person who reported the suspected
abuse, neglect or exploitation shall be held confidential unless the reporter
authorizes the disclosure of his identity or disclosure is ordered by the
court.
J. Agencies or persons who receive confidential information
pursuant to subsection G of this section shall provide the following assurances
to the local department:
1. The purpose for which information is requested is related
to the protective services goal in the service plan for the adult;
2. The information will be used only for the purpose for which
it is made available; and
3. The information will be held confidential by the department
or individual receiving the information except to the extent that disclosure is
required by law.
K. Methods of obtaining assurances. Any one of the following
methods may be used to obtain assurances required in subsection J of this
section:
1. Agreements between local departments and other community
service agencies that provide blanket assurances required in subsection J of
this section for all adult protective services cases; or
2. State-level agreements that provide blanket assurances
required in subsection C of this section for all adult protective services
cases.
L. Notification that information has been disclosed. When
information has been disclosed pursuant to this chapter, notice of the
disclosure shall be given to the adult who is the subject of the information or
to his legally appointed guardian. If the adult has given permission to release
the information, further notification shall not be required.
VA.R. Doc. No. R12-3173; Filed June 21, 2012, 3:26 p.m.
Final Regulation
REGISTRAR'S NOTICE:
The State Board of Social Services is claiming an exclusion from the
Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that
are necessary to conform to changes in Virginia statutory law where no agency
discretion is involved. The State Board of Social Services will receive,
consider, and respond to petitions by any interested person at any time with
respect to reconsideration or revision.
Title of Regulation: 22VAC40-745. Assessment in
Assisted Living Facilities (amending 22VAC40-745-10, 22VAC40-745-90).
Statutory Authority: § 63.2-217 of the Code of
Virginia.
Effective Date: August 15, 2012.
Agency Contact: Paige McCleary,
Program Consultant, Department of Social Services, Division of Family Services,
801 East Main Street, Richmond, VA 23219, telephone (804) 726-7536, FAX (804)
726-7895, TTY (800) 828-1120, or email paige.mccleary@dss.virginia.gov.
Summary:
This action amends Code of Virginia and Virginia Administrative
Code citations, updates the agency name of the Department of Mental Health, Mental
Retardation and Substance Abuse Services to the Department of Behavioral Health
and Developmental Services, and amends the term "mental retardation"
to "intellectual disability."
Part I
Definitions
22VAC40-745-10. Definitions.
The following words and terms, when used in this chapter,
shall have the following meanings, unless the context clearly indicates
otherwise:
"Activities of daily living (ADLs)" means bathing,
dressing, toileting, transferring, bowel control, bladder control, and
eating/feeding. A person's degree of independence in performing these
activities is a part of determining appropriate level of care and services.
"Applicant" means an adult planning to reside in an
assisted living facility.
"Assessment" means a standardized approach using
common definitions to gather sufficient information about applicants to and
residents of assisted living facilities to determine the need for appropriate
level of care and services.
"Assisted living care" means a level of service
provided by an assisted living facility for adults who may have physical or
mental impairments and require at least moderate assistance with the activities
of daily living. Moderate assistance means dependency in two or more of the
activities of daily living. Included in this level of service are individuals
who are dependent in behavior pattern (i.e., abusive, aggressive, disruptive).
"Assisted living facility (ALF)" means any public
or private assisted living facility that is required to be licensed as an
assisted living facility by the Department of Social Services under Chapter 17
(§ 63.2-1700 et seq.) of Title 63.2 of the Code of Virginia, specifically, any
congregate residential setting that provides or coordinates personal and health
care services, 24-hour supervision, and assistance (scheduled and unscheduled)
for the maintenance or care of four or more adults who are aged, infirm or
disabled and who are cared for in a primarily residential setting, except (i) a facility or portion of a facility licensed by the
State Board of Health or the Department of Mental Health, Mental Retardation
and Substance Abuse Services Behavioral Health and Developmental
Services, but including any portion of such facility not so licensed; (ii)
the home or residence of an individual who cares for or maintains only persons
related to him by blood or marriage; (iii) a facility or portion of a facility
serving infirm or disabled persons between the ages of 18 and 21, or 22 if
enrolled in an educational program for the handicapped pursuant to § 22.1-214
of the Code of Virginia, when such facility is licensed by the department as a
children's residential facility under Chapter 17 (§ 63.2-1700 et seq.) of Title
63.2 of the Code of Virginia, but including any portion of the facility not so
licensed; and (iv) any housing project for persons 62 years of age or older or
the disabled that provides no more than basic coordination of care services and
is funded by the U.S. Department of Housing and Urban Development, by the U.S.
Department of Agriculture, or by the Virginia Housing Development Authority.
Included in this definition are any two or more places, establishments or
institutions owned or operated by a single entity and providing maintenance or
care to a combined total of four or more aged, infirm or disabled adults.
Maintenance or care means the protection, general supervision and oversight of
the physical and mental well-being of an aged, infirm or disabled individual.
"Assisted living facility administrator" means any
individual charged with the general administration of an assisted living
facility, regardless of whether he has an ownership interest in the facility
and meets the requirements of 22VAC40-71 22VAC40-72.
"Auxiliary Grants Program" means a state and
locally funded assistance program to supplement income of a Supplemental
Security Income (SSI) recipient or adult who would be eligible for SSI except
for excess income, who resides in an assisted living facility with an approved
rate.
"Case management" means multiple functions designed
to link individuals to appropriate services. Case management may include a
variety of common components such as initial screening of need, comprehensive
assessment of needs, development and implementation of a plan of care, service
monitoring, and follow-up.
"Case management agency" means a public human
service agency which employs or contracts for case management.
"Case manager" means an employee of a public human
services agency who is qualified and designated to develop and coordinate plans
of care.
"Consultation" means the process of seeking and
receiving information and guidance from appropriate human services agencies and
other professionals when assessment data indicate certain social, physical and
mental health conditions.
"Department" or "DSS" means the Virginia
Department of Social Services.
"Dependent" means, for activities of daily living
(ADLs) and instrumental activities of daily living (IADLs), the individual
needs the assistance of another person or needs the assistance of another
person and equipment or device to safely complete the activity. For medication
administration, dependent means the individual needs to have medications
administered or monitored by another person or professional staff. For behavior
pattern, dependent means the person's behavior is aggressive, abusive, or disruptive.
"Discharge" means the movement of a resident out of
the assisted living facility.
"Emergency placement" means the temporary status of
an individual in an assisted living facility when the person's health and
safety would be jeopardized by not permitting entry into the facility until
requirements for admission have been met.
"Facility" means an assisted living facility.
"Independent physician" means a physician who is
chosen by the resident of the assisted living facility and who has no financial
interest in the assisted living facility, directly or indirectly, as an owner,
officer, or employee or as an independent contractor with the facility.
"Instrumental activities of daily living (IADLs)"
means meal preparation, housekeeping, laundry, and money management. A person's
degree of independence in performing these activities is a part of determining
appropriate level of care and services.
"Maximum physical assistance" means that an
individual has a rating of total dependence in four or more of the seven
activities of daily living as documented on the uniform assessment instrument.
"Medication administration" means the degree of
assistance required to take medications and is a part of determining the need
for appropriate level of care and services.
"Private pay" means that a resident of an assisted
living facility is not eligible for benefits under the Auxiliary Grants
Program.
"Public human services agency" means an agency
established or authorized by the General Assembly under Chapters 2 and 3 (§§
63.2-203 et seq. and 63.2-300 et seq.) of Title 63.2, Chapter 7 (§ 2.2-700
et seq.) of Title 2.2 Chapter 14 (§ 51.5-116 et seq.) of Title 51.5,
Chapters 1 and 10 (§§ 37.1-1 et seq. and 37.1-194 et seq.) of Title
37.1 5 (§§ 37.2-100 et seq. and 37.2-500 et seq.) of Title 37.2,
or Article 5 (§ 32.1-30 et seq.) of Chapter 1 of Title 32.1, Chapter
1 (§ 51.5-1 et seq.) of Title 51.5, or §§ 53.1-21 and 53.1-60 of the Code of
Virginia, or hospitals operated by the state under Chapters 6.1 and 9 (§§
23-50.4 et seq. and 23-62 et seq.) of Title 23 of the Code of Virginia and
supported wholly or principally by public funds, including but not limited to
funds provided expressly for the purposes of case management.
"Public pay" means that a resident of an assisted
living facility is eligible for benefits under the Auxiliary Grants Program.
"Qualified assessor" means an individual who is
authorized to perform an assessment, reassessment, or change in level of care
for an applicant to or resident of an assisted living facility. For public pay
individuals, a qualified assessor is an employee of a public human services
agency trained in the completion of the uniform assessment instrument. For
private pay individuals, a qualified assessor is staff of the assisted living
facility trained in the completion of the uniform assessment instrument or an
independent private physician.
"Reassessment" means an update of information at
any time after the initial assessment. In addition to a periodic reassessment,
a reassessment should be completed whenever there is a significant change in
the resident's condition.
"Resident" means an individual who resides in an
assisted living facility.
"Residential living care" means a level of service
provided by an assisted living facility for adults who may have physical or
mental impairments and require only minimal assistance with the activities of
daily living. Minimal assistance means dependency in only one activity of daily
living or dependency in one or more of the selected instrumental activities of
daily living. Included in this level of service are individuals who are
dependent in medication administration as documented on the uniform assessment
instrument. This definition includes independent living facilities that
voluntarily become licensed.
"Significant change" means a change in a resident's
condition that is expected to last longer than 30 days. It does not include
short-term changes that resolve with or without intervention, a short-term
acute illness or episodic event, or a well-established, predictive, cyclic
pattern of clinical signs and symptoms associated with a previously diagnosed
condition where an appropriate course of treatment is in progress.
"Targeted case management" means the provision of
ongoing case management services by an employee of a public human services
agency contracting with the Department of Medical Assistance Services to an
auxiliary grant resident of an assisted living facility who meets the criteria
set forth in Part IV (12VAC30-50-410 et seq.) of 12VAC30-50 12VAC30-50-470.
"Total dependence" means the individual is entirely
unable to participate in the performance of an activity of daily living.
"Uniform assessment instrument" means the
department-designated assessment form. There is an alternate version of the
uniform assessment instrument which may be used for private pay residents;
social and financial information which is not relevant because of the
resident's payment status is not included on this version.
"User's Manual: Virginia Uniform Assessment
Instrument" means the department-designated handbook containing common
definitions and procedures for completing the department-designated assessment
form.
"Virginia Department of Medical Assistance Services
(DMAS)" means the single state agency designated to administer the Medical
Assistance Services Program in Virginia.
22VAC40-745-90. Actions to be taken upon completion of the
uniform assessment instrument.
A. Public pay individuals.
1. Upon completion of the uniform assessment instrument for
admission, a significant change in the resident's condition, or the annual
reassessment, the case manager or a qualified assessor shall forward to the
local department of social services financial eligibility worker in the
appropriate agency of jurisdiction, in the format specified by the department,
the effective date of admission or change in level of care. Qualified assessors
who may perform the annual reassessment or a change in level of care for public
pay individuals are employees of (i) local
departments of social services; (ii) area agencies on aging; (iii) centers for
independent living; (iv) community services boards; and (v) local departments
of health, or an independent physician to complete the uniform assessment
instrument.
2. The completed uniform assessment instrument, the referral
to the financial eligibility worker, and other relevant data shall be
maintained in the assisted living facility resident's record.
3. The annual reassessment shall be completed by the qualified
assessor conducting the initial assessment. If the original assessor is neither
willing nor able to complete the assessment and another assessor is not
available, the local department of social services where the resident resides
following placement in an assisted living facility shall be the assessor.
4. Clients of a community services board shall be assessed and
reassessed by qualified assessors employed by the community services board.
5. The facility shall provide to the community services board
or behavioral health authority notification of uniform assessment instruments
that indicate observed behaviors or patterns of behavior indicative of mental
illness, mental retardation intellectual disability, substance
abuse, or behavioral disorders, pursuant to § 63.2-1805 B of the Code of
Virginia.
B. For private pay residents, the assisted living facility
shall ensure that assessments for all residents at admission and at subsequent
intervals are completed as required in this chapter. The assisted living
facility shall maintain in the resident's record the resident's uniform
assessment instrument and other relevant data.
VA.R. Doc. No. R12-3174; Filed June 21, 2012, 3:24 p.m.
