REGULATIONS
TITLE 4. CONSERVATION AND NATURAL RESOURCES
DEPARTMENT OF FORESTRY
Emergency Regulation
Title of Regulation: 4VAC10-30. Virginia State Forests Regulations (amending 4VAC10-30-40, 4VAC10-30-120, 4VAC10-30-200, 4VAC10-30-210).
Statutory Authority: §§ 10.1-1101 and 10.1-1152 of the Code of Virginia.
Effective Dates: September 18, 2012, through September 17, 2013.
Agency Contact: Ronald S. Jenkins, Administrative Officer, Department of Forestry, 900 Natural Resources Drive, Suite 800, Charlottesville, VA 22903, telephone (434) 977-6555, FAX (434) 293-2768, or email ron.jenkins@dof.virginia.gov.
Preamble:
Chapter 484 of the 2012 Acts of Assembly amended and reenacted § 10.1-1152 of the Code of Virginia relating to state forest special use permits, mandating that the Department of Forestry promulgate emergency regulations to implement the provision of the act that establishes a fee for the special use permit to hunt, trap, fish, ride bikes, and ride horses in a state forest. The act requires the agency to promulgate regulations within 280 days of the enactment of the act. This regulation is not exempt under the provisions of subdivision A 4 of § 2.2-4006 of the Code of Virginia. The changes to the existing regulation provide that any person who hunts, fishes, traps, rides a bike, or rides a horse in a state forest is required to purchase an annual special use permit for a fee of $15.
4VAC10-30-40. Permits.
A permit to do any act shall authorize the same only insofar
as it may be performed in strict accordance with the terms and conditions
thereof. Any violation by its holder or his agents or employees of any term or
condition thereof shall constitute grounds for its revocation by the
department, or by its authorized representative. In case of revocation of any
permit, all moneys paid for or on account thereof shall, at the option of the
department, be forfeited to and be retained by it; and the holder of such
permit, together with his agents and employees who violated such terms and
conditions, shall be jointly and severally liable to the department for all
damages and loss suffered by it in excess of money so forfeited and retained;
but neither such forfeiture and retention by the department of the whole or any
part of such moneys nor the recovery or collection thereby of such damages, or
both, shall in any manner relieve such person or persons from liability to
punishment for any violation of any provision of any Virginia State Forests
Regulation. A state forest hunting special use permit will be
required to hunt or, trap, fish, ride bikes, or ride horses
on any state forest or portion thereof on which hunting and,
trapping, fishing, riding bikes, or riding horses is permitted.
4VAC10-30-120. Charges.
No person 16 years of age or older shall make, use,
or gain admittance to, or attempt to use or gain admittance to the facilities
in any forest for the use of which a charge special use permit is
made required by the department unless he shall pay the charge
or price fixed by the department obtain a special use permit and pay an
annual fee of $15. Any person 16 years of age may hunt, trap, fish, ride bikes,
or ride horses on any state forest and is not required to obtain a special use
permit or pay an annual fee.
4VAC10-30-200. Hunting and fishing.
No person within the confines of any forest, shall hunt,
trap, shoot, injure, kill or molest in any way any bird or animal, nor shall
any person have in his possession any bird or animal, dead or alive, within the
forest except any bird or animal designated as a game bird or animal by the
Virginia Board of Game and Inland Fisheries, and the trapping of, hunting of,
shooting at, or possession of any such bird or animal is prohibited except
during the lawful hunting season set for the forest or portion thereof by the Virginia
Board of Game and Inland Fisheries and only in those forests or portion thereof
designated by the Forest Superintendent as lawful hunting areas. A state forest
hunting special use permit will be required. All provisions of
the Virginia Code concerning hunting must be complied with.
4VAC10-30-210. Fishing.
Fishing is permitted in designated areas in each forest, the only stipulation being that persons fishing must have a state fishing license, have a special use permit, and comply with the Virginia Game and Inland Fisheries rules and regulations.
VA.R. Doc. No. R13-3185; Filed September 18, 2012, 10:22 a.m.
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: 4VAC20-260. Pertaining to Designation of Seed Areas and Clean Cull Areas (amending 4VAC20-260-20 through 4VAC20-260-60).
Statutory Authority: § 28.2-201 of the Code of Virginia.
Effective Date: October 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 proposed amendments clarify the coordinates and locations of oyster seed areas and clean cull areas, and clarify the penalties for inspection violations.
4VAC20-260-20. Designation of seed areas and clean cull areas.
A. Seed areas. The following natural public oyster beds, rocks, or shoals are designated for the harvest of seed oysters:
1. James River. All of the public oyster grounds in the James River and its tributaries above a line drawn from Cooper's Creek in Isle of Wight County on the south side of the James River to a line in a northeasterly direction across the James River to the Newport News municipal water tank located on Warwick Boulevard between 59th and 60th Street in the City of Newport News.
2. Deep Water Shoal State Repletion Seed Area in the James
River (574.66 acres). Beginning at a point approximately 530 feet west of Deep
Water Shoal Light, said point being Corner 1 as located by Virginia State Plane
Coordinates, South Zone, NAD 1927, North 302,280.00, East 2,542,360.00; thence
North Azimuth 30°49'59", 4,506.99 feet to Corner 2, North 306,150.00, East
2,544,670.00; thence North Azimuth 135°08'57", 5,430.60 feet to Corner 3,
North 302,300.00, East 2,548,500.00; thence North Azimuth 212°13'54",
3,487.42 feet to Corner 4, North 299,350.00, East 2,546,640.00; thence North
Azimuth 269°10'16", 2,765.29 feet to Corner 5, North 299,310.00, East
2,543,875.00; thence North Azimuth 332°58'26", 3,334.09 feet to Corner 1,
being the point of beginning. (Map 1) Deep Water Shoal State
Replenishment Seed Area (DWS). That area in the James River near Mulberry
Island, beginning at a point approximately 530 feet west of Deep Water Shoal
Light, said point being Corner 1, located at Latitude 37° 08.9433287' N.,
Longitude 76° 38.3213007' W.; thence southeasterly to Corner 2, Latitude 37°
09.5734380' N., Longitude 76° 37.8300582' W.; thence southwesterly to Corner 3,
Latitude 37° 08.9265524' N., Longitude 76° 37.0574269' W.; thence westerly to
Corner 4, Latitude 37° 08.4466039' N., Longitude 76° 37.4523346' W.; thence
northwesterly to Corner 5, Latitude 37° 08.4491489' N., Longitude 76°
38.0215553' W.; thence northeasterly to Corner 1, said corner being the point
of beginning.
B. Clean cull areas. All natural public oyster beds, rocks, or shoals in the tidal waters of Virginia, except those designated by the Marine Resources Commission as seed areas shall be considered clean cull areas.
|
EDITOR'S NOTICE: The map designating Deep Water Shoal Repletion Seed Area (Map 1) is not printed and is deleted by this regulatory action. |
4VAC20-260-30. Minimum cull size.
In order to encourage a continued supply of marketable oysters, minimum size limits are hereby established. Undersized oysters or shells shall be returned immediately to their natural beds, rocks, or shoals where taken. When small oysters are adhering so closely to the shell of the marketable oyster as to render removal impossible without destroying the young oyster, then it shall not be necessary to remove it. Allowances for undersized oysters and shells incidentally retained during culling are found in 4VAC20-260-40.
1. Oysters taken from clean cull areas shall not have shells less than three inches in length, except as described in subdivision 5 of this section.
2. In the James River seed areas, there shall be no size limit on oysters harvested for replanting as seed oysters and seed oysters shall not be marketed for direct consumption.
3. In the James River seed areas, the shells of oysters harvested for direct consumption shall not be less than three inches in length.
4. On the seaside of the Eastern Shore seed area, the
shells of oysters marketed for direct consumption shall not be less than three
inches in length. The provisions of this subdivision shall not apply to oysters
raised in aquaculture cages by licensed aquaculture facilities.
5. In the Rappahannock River, the shells of oysters harvested for direct consumption from the areas known as Russ' Rock and Carter's Rock shall not be less than 2-1/2 inches in length.
4VAC20-260-40. Culling tolerances or standards.
A. In the clean cull areas, if more than one a
four-quart measure of any combination of undersized (less than three
inches) oysters or shells is of any size are found per bushel
inspected, it shall constitute a violation of this chapter, except as
described in subdivision 5 of 4VAC20-260-30.
B. In the James River seed areas, if more than one a
six-quart measure of shells is found per bushel of seed oysters inspected, it
shall constitute a violation of this chapter.
C. In the James River seed areas, if more than one a
four-quart measure of any combination of undersized (less than three
inches) oysters or shells is of any size are found per bushel
of clean cull oysters inspected, it shall constitute a violation of this
chapter.
D. On the seaside of Eastern Shore seed areas, if more
than one a four-quart measure of any combination of
undersized (less than three inches) oysters and shells is of any size
are found per bushel of clean cull oysters to be marketed for
direct consumption inspected, it shall constitute a violation of
this chapter.
4VAC20-260-50. Culling and inspection procedures.
A. All oysters taken from natural public beds, rocks, or shoals shall be placed on the culling board and culled by hand to the inside open part of the boat in a loose pile; however, when oysters are taken by hand and held in baskets or other containers they shall be culled as taken and transferred from the container to the inside open part of the boat in a loose pile and subject to inspection by any Marine Resources Commission law-enforcement officer.
B. If oysters from leased grounds and oysters from public grounds are mixed in the same cargo on a boat or motor vehicle, the entire cargo shall be subject to inspection under this chapter.
C. It shall be unlawful for any harvester to store oysters
taken from public grounds on any boat in any type of container, except as
described for the James River in 4VAC20-1230-30 M. All oysters taken from said
areas public grounds shall be sold or purchased in the regular
oyster one-half bushel or one bushel measure as described in § 28.2-526 of the
Code of Virginia, or the alternate container described in subsection D of this
section; except that on the seaside of the Eastern Shore oysters may be sold
without being measured if both the buyer and the seller agree to the number of
bushels of oysters in the transaction.
D. An alternate container produced by North Machine Shop in Mathews, Virginia, may be used for measuring oysters to be sold or purchased. The dimensions of this metallic cylindrical container shall be 18.5 inches inside diameter and 11 inches inside height.
E. In the inspection of oysters the law-enforcement officer shall, with a shovel, take at least one bushel of oysters at random, provided that the entire bushel shall be taken at one place in the open pile of oysters.
4VAC20-260-60. Penalty.
A. As set forth in §§ 28.2-510 and 28.2-511 of the Code of Virginia, any person, firm, or corporation violating any provision of this chapter except 4VAC20-260-50 C shall be guilty of a Class 3 misdemeanor.
B. As set forth in § 28.2-526 of the Code of Virginia, any person violating any provision of 4VAC20-260-50 C of the chapter shall be guilty of a Class 1 misdemeanor.
C. In addition to the penalty prescribed by law, any
person violating any provision of this chapter shall destroy, in the presence
of a marine police officer, all shellfish in his possession, or, at the
direction of the marine police officer, shall place the shellfish overboard on
the nearest oyster sanctuary or closed shellfish area, and shall cease
harvesting on that day. All harvesting apparatus may be subject to seizure,
and, pursuant to § 28.2-232 of the Code of Virginia, all licenses and permits
may be subject to revocation following a hearing before the Marine Resources
Commission.
C. In addition to the penalty prescribed by law, any person violating any provision of this chapter shall place the entire load of shellfish overboard on the nearest oyster sanctuary or closed shellfish area, at the direction of the marine police officer, and shall cease harvesting on that day. In cases where shellfish associated with a violation, by any person, cannot be returned overboard, that person shall destroy, in the presence of a marine police officer, all shellfish in his possession. All harvesting apparatus may be subject to seizure and, pursuant to § 28.2-232 of the Code of Virginia, all licenses and permits may be subject to revocation following a hearing before the Marine Resources Commission.
VA.R. Doc. No. R13-3307; Filed September 6, 2012, 10:58 a.m.
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: 4VAC20-720. Pertaining to Restrictions on Oyster Harvest (amending 4VAC20-720-10 through 4VAC20-720-91, 4VAC20-720-100; repealing 4VAC20-720-95).
Statutory Authority: § 28.2-201 of the Code of Virginia.
Effective Date: October 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 amendments clarify the coordinates and locations of oyster grounds and establish the open oyster harvest seasons, areas, and bushel limits.
4VAC20-720-10. Purpose.
The purpose of this chapter is to protect and conserve
Virginia's oyster resource resources, and promote the
preservation of especially oyster broodstock, which has been
depleted by disease, harvesting, and natural disasters.
4VAC20-720-20. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Aid to navigation" means any public or private day beacon, lighted channel marker, channel buoy, lighted channel buoy, or lighthouse that may be at, or adjacent to, any latitude and longitude used in area descriptions.
"Coan River Area" means that area of the Coan River inside of Public Grounds 77 and 78 of Northumberland County.
"Deep Rock Patent Tong Area (Lower Chesapeake
Bay)" means the area described as follows: starting at Cherry Point,
Gwynns Island, thence northeast to G"1P" along the south side of the
channel to Piankatank River; thence east-southeast to G"1R"; thence
southwest to Sandy Point, Gwynns Island, North of Hole-in the-Wall.
"Deep Water Shoal State Replenishment Seed Area
(DWS)" in the James River (574.66 Acres) means the areas beginning at a
point approximately 530 feet west of Deep Water Shoal Light, said point being
Corner 1 as located by Virginia State Plane Coordinates, South Zone, NAD 1927,
north 302,280.00, east 2,542,360.00; thence north azimuth 30°49'59",
4,506.99 feet to Corner 2, north 306,150.00, east 2,544,670.00; thence north
azimuth 135°08'57", 5,430.60 feet to Corner 3, north 302,300.00, east
2,548,500.00; thence north azimuth 212°13'54", 3,487.42 feet to Corner 4,
north 299,350.00, east 2,546,640.00; thence north azimuth 269°10'16",
2,765.29 feet to Corner 5, north 299,310.00, east 2,543,875.00; thence north
azimuth 332°58'26", 3,334.09 feet to Corner 1, being the point of
beginning.
"Great Wicomico River Hand Scrape Area" means
that area east of a line drawn from Sandy Point to Cockrell Point.
Public Ground 77 of Northumberland County is located near the mouth of the Coan River, beginning at a point approximately 2,300 feet northeast of Honest Point and 1,300 feet southwest of Travis Point, said point being Corner 1, located at Latitude 37° 59.5257207' N., Longitude 76° 27.8810639' W.; thence southwesterly to Corner 2, Latitude 37° 59.3710259' N., Longitude 76° 27.9962148' W.; thence southwesterly to Corner 3, Latitude 37° 59.2953830' N., Longitude 76° 28.0468953' W.; thence northwesterly to Corner 4, Latitude 37° 59.3350863' N., Longitude 76° 28.0968837' W.; thence northeasterly to Corner 5, Latitude 37° 59.3965161' N., Longitude 76° 28.0287342' W.; thence northwesterly to Corner 6, Latitude 37° 59.4758507' N., Longitude 76° 28.1112280' W.; thence north-northwesterly to Corner 7, Latitude 37° 59.5079401' N., Longitude 76° 28.1230058' W.; thence northeasterly to Corner 8, Latitude 37° 59.5579153' N., Longitude 76° 27.9889429' W.; thence southeasterly to Corner 1, said corner being the point of beginning.
Public Ground 78 of Northumberland County is located near the mouth of the Coan River, beginning at a point approximately 3,420 feet southeast of Travis Point and 3,260 feet northwest of Great Point, said point being Corner 1, located at Latitude 37° 59.4822275' N., Longitude 76° 27.1878637' W.; thence southeasterly to Corner 2, Latitude 37° 59.3824046' N., Longitude 76° 27.1088650' W.; thence southwesterly to Corner 3, Latitude 37°59.2283287' N., Longitude 76° 27.8632901' W.; thence northeasterly to Corner 4, Latitude 37° 59.4368502' N., Longitude 76° 27.6868001' W.; thence continuing northeasterly to Corner 5, Latitude 37° 59.5949216' N., Longitude 76°27.5399436' W.; thence southeasterly to Corner 1, said corner being the point of beginning.
"Deep Rock Area" means all public grounds and unassigned grounds, in that area of the Chesapeake Bay near Gwynn Island, beginning at Cherry Point at the western-most point of the eastern headland of Kibble Pond located at Latitude 37° 30.9802148' N., Longitude 76° 17.6764393' W.; thence northeasterly to the Piankatank River, Flashing Green Channel Light "3", Latitude 37° 32.3671325' N., Longitude 76° 16.7038334' W.; thence east-southeasterly to the Rappahannock River Entrance Lighted Buoy G"1R", Latitude 37° 32.2712833' N., Longitude 76° 11.4813666' W.; thence southwesterly to the southern-most point of Sandy Point, the northern headland of "The Hole in the Wall", Latitude 37° 28.1475258' N., Longitude 76° 15.8185670' W.; thence northwesterly along the Chesapeake Bay mean low water line of the barrier islands of Milford Haven, connecting headland to headland at their eastern-most points, and of Gwynn Island to the western-most point of the eastern headland of Kibble Pond on Cherry Point, said point being the point of beginning.
"Deep Water Shoal State Replenishment Seed Area (DWS)" means that area in the James River near Mulberry Island, beginning at a point approximately 530 feet west of Deep Water Shoal Light, said point being Corner 1, located at Latitude 37° 08.9433287' N., Longitude 76° 38.3213007' W.; thence southeasterly to Corner 2, Latitude 37° 09.5734380' N., Longitude 76° 37.8300582' W.; thence southwesterly to Corner 3, Latitude 37° 08.9265524' N., Longitude 76° 37.0574269' W.; thence westerly to Corner 4, Latitude 37° 08.4466039 N., Longitude 76° 37.4523346' W.; thence northwesterly to Corner 5, Latitude 37° 08.4491489' N., Longitude 76° 38.0215553' W.; thence northeasterly to Corner 1, said corner being the point of beginning.
"Great Wicomico River Area" means all public grounds and unassigned grounds, in that area of the Great Wicomico River, Ingram Bay, and the Chesapeake Bay, beginning at a point on Sandy Point, Latitude 37° 49.3269652' N., Longitude 76° 18.3821766' W.; thence easterly to the southern-most point of Cockrell Point, Latitude 37° 49.2664838' N., Longitude 76° 17.3454434' W.; thence easterly following the mean low water line of Cockrell Point to a point on the boundary of Public Ground 115 at Cash Point, Latitude 37° 49.2695619' N., Longitude 76° 17.2804046' W.; thence southeasterly to the gazebo on the pierhead at Fleets Point, Latitude 37° 48.7855824' N., Longitude 76° 16.9609311' W.; thence southeasterly to the Great Wicomico Lighthouse; thence due south to a point due east of the southern-most point of Dameron Marsh, Latitude 37° 46.6610003' N., Longitude 76° 16.0570007' W.; thence due east to the southern-most point of Dameron Marsh, Latitude 37° 46.6609070' N., Longitude 76° 17.2670707' W.; thence along the mean low water line of Dameron Marsh, north and west to Garden Point, Latitude 37° 47.2519872' N., Longitude 76° 18.4028142' W.; thence northwesterly to Windmill Point, Latitude 37° 47.5194547' N., Longitude 76° 18.7132194' W.; thence northerly along the mean low water to the western headland of Harveys Creek, Latitude 37° 47.7923573' N., Longitude 76° 18.6881450' W.; thence east-southeasterly to the eastern headland of Harveys Creek, Latitude 37° 47.7826936' N., Longitude 76° 18.5469879' W.; thence northerly along the mean low water line, crossing the entrance to Towels Creek at the offshore ends of the jetties and continuing to Bussel Point, Latitude 37° 48.6879208' N., Longitude 76° 18.4670860' W.; thence northwesterly to the northern headland of Cranes Creek, Latitude 37° 48.8329168' N., Longitude 76° 18.7308073' W.; thence following the mean low water line northerly to a point on Sandy Point, said point being the point of beginning.
"Hand scrape" means any device or instrument with a catching bar having an inside measurement of no more than 22 inches, which is used or usable for the purpose of extracting or removing shellfish from a water bottom or the bed of a body of water.
"James River Hand Scrape Area" means those
public oyster grounds of the James River west of the Monitor and Merrimac
Bridge Tunnel and northeast of the Mills E. Godwin/Nansemond River Bridge
(Route 17) to the James River Bridge (Route 17).
"Hand tong" or "ordinary tong" means any pincers, nippers, tongs, or similar device used in catching oysters, which consist of two shafts or handles attached to opposable and complementary pincers, baskets, or containers operated entirely by hand, from the surface of the water and has no external or internal power source.
"James River Area" means those public grounds of the James River and Nansemond River west of the Monitor Merrimac Memorial Bridge Tunnel (Route I-664), northeast of the Mills E. Godwin, Jr. Bridge (U.S. Route 17) on the Nansemond River, and south of the James River Bridge (U.S. Route 17).
"Latitude and longitude" means values that are based upon a geodetic reference system of the North American Datum of 1983 (NAD83). When latitude and longitude are used in any area description, in conjunction with any physical landmark, to include aids to navigation, the latitude and longitude value is the legal point defining the boundary.
"Little Wicomico River" means that area of the Little Wicomico River inside of Public Ground 43 of Northumberland County, located in the Little Wicomico River near Bridge Creek, beginning at a point approximately 150 feet north of Peachtree Point, said point being Corner 1, located at Latitude 37° 53.2910650' N., Longitude 76° 16.7312926' W.; thence southwesterly to Corner 2, Latitude 37° 53.2601877' N., Longitude 76° 16.8662408' W.; thence northwesterly to Corner 3, Latitude 37° 53.2678470' N., Longitude 76°16.8902408' W.; thence northeasterly to Corner 4, Latitude 37° 53.3113148' N., Longitude 76° 16.8211543' W.; thence southeasterly to Corner 1, said corner being the point of beginning.
"Lower Machodoc Area" means that area of the
Lower Machodoc River to the Virginia-Maryland state line (PRV5A to PRV5C).
"Milford Haven" means that area of Milford Haven
inside of Public Ground 7, within these coordinates: 37° 28.32', N., 76°
16.45', W.; 37° 28.35', N., 76° 16.42', W.; 37° 28.37', N., 76° 16.47', W.;
37° 28.35', N., 76° 16.50', W. of Mathews County,
beginning at a point approximately 1,380 feet east of Point Breeze, said point
being Corner 1, located at Latitude 37° 28.3500000' N., Longitude 76°
16.5000000' W.; thence northeasterly to Corner 2, Latitude 37° 28.3700000' N.,
Longitude 76° 16.4700000' W.; thence southeasterly to Corner 3, Latitude 37°
28.3500000' N., Longitude 76° 16.4200000' W.; thence southwesterly to Corner 4,
Latitude 37° 28.3200000' N., Longitude 76° 16.4500000' W.; thence northwesterly
to Corner 1, said corner being the point of beginning.
"Mobjack Bay Hand Scrape Area" shall consist of
all of Public Ground No. 25, Gloucester County (Towe Stake) within these
coordinates: 37° 20.59', N., 76° 23.24', W.; 37° 20.38', N., 76° 22.72', W.;
37° 19.86', N., 76° 23.59', W.; 37° 20.03', N. 76° 23.77', W.; and 37° 20.39',
N., 76° 23.58', W. and that portion of Public Ground No. 2, Mathews County
(Pultz Bar), within these coordinates: 37° 21.25', N., 76° 21.37', W.; 37°
21.27', N., 76° 20.96', W.; 37° 21.02', N., 76° 20.94', W.; and 37° 21.05', N.,
76° 21.33', W.
"Nomini River" means that area of the Nomini
River inside of Public Ground 26 (Deans) and Public Ground 28 (Cut).
"Mobjack Bay Area" means those areas of Mobjack Bay consisting of Public Ground 25 of Gloucester County (Tow Stake) and that portion of Public Ground 2 of Mathews County known as Pultz Bar described as:
Public Ground 25 of Gloucester County, known as Tow Stake, is located in Mobjack Bay, near the mouth of the Severn River, beginning at a point approximately 2,880 feet east-northeast of Tow Stake Point, said point being Corner 1, located at Latitude 37° 20.3883888' N., Longitude 76° 23.5883836' W.; thence northeasterly to Corner 2, Latitude 37° 30.5910482' N., Longitude 76° 23.2372184' W.; thence southeasterly to Corner 3, Latitude 37° 20.3786971' N., Longitude 76° 22.7241180' W.; thence southwesterly to Corner 4, Latitude 37° 19.8616759' N., Longitude 76° 23.5914937' W.; thence northwesterly to Corner 5, Latitude 37° 20.0284019' N., Longitude 76° 23.7717423' W.; thence northeasterly to Corner 1, said corner being the point of beginning.
Public Ground 2 of Mathews County, known as Pultz Bar, is located in Mobjack Bay, beginning at a point approximately 5,420 feet south of Minter Point, said point being Corner 1, located at Latitude 37° 21.2500000' N., Longitude 76° 21.3700000' W.; thence easterly to Corner 2, Latitude 37° 21.2700000' N., Longitude 76° 20.9600000' W.; thence southerly to Corner 3, Latitude 37° 21.0200000' N., Longitude 76° 20.9400000' W.; thence westerly to Corner 4, Latitude 37° 21.0500000' N., Longitude 76° 21.3300000' W.; thence northerly to Corner 1, said corner being the point of beginning.
"Nomini Creek Area" means that area of Nomini Creek inside of Public Grounds 26 and 28 of Westmoreland County.
Public Ground 26 of Westmoreland County is located in Nomini Creek, north of Beales Wharf and east of Barnes Point, beginning at a point approximately 1,400 feet north of Barnes Point, said point being Corner 1, located at Latitude 38° 07.2690219' N., Longitude 76° 42.6784210' W.; thence southeasterly to Corner 2, Latitude 38° 07.0924060' N., Longitude 76° 42.4745767' W.; thence southwesterly to Corner 3, Latitude 38° 06.8394053' N., Longitude 76° 42.6704025, W.; thence northwesterly to Corner 4, Latitude 38° 06.8743004' N., Longitude 76° 42.7552151' W.; thence northeasterly to Corner 5, Latitude 38° 07.0569717' N., Longitude 76° 42.5603535' W.; thence northwesterly to Corner 1, said corner being the point of beginning.
Public Ground 28 of Westmoreland County is located at the mouth of Nomini Creek, beginning at a point approximately 50 feet west of White Oak Point, said point being Corner 1, located at Latitude 38° 07.6429987' N., Longitude 76° 43.0337082' W.; thence south-southeasterly to Corner 2, Latitude 38° 07.2987193' N., Longitude 76° 43.1101420' W.; thence northwesterly to Corner 3, Latitude 38° 07.7029267' N., Longitude 76° 43.3337762' W.; thence west to the mean low water line, Latitude 38° 07.7031535' N., Longitude 76° 43.3378345' W.; thence northerly and westerly along the mean low water line of Nomini Creek to a point southwest of Cedar Island, Latitude 38° 07.8986449' N., Longitude 76° 43.6329097' W.; thence northeasterly to a point on the mean low water line at the southern-most point of Cedar Island, Latitude 38° 07.8986449' N., Longitude 76° 43.6329097' W.; thence following the mean low water line of the southern and eastern sides of Cedar Island to a point, Latitude 38° 08.0164430' N., Longitude 76° 43.4773169' W.; thence northeasterly to Corner 4, Latitude 38° 08.0712849' N., Longitude 76° 43.4416606' W.; thence northeasterly to a point on the northern headland of Nomini Creek at the mean low water line, said point being Corner 5, Latitude 38° 08.2729626' N., Longitude 76° 43.3105315' W.; thence following the mean low water line of White Point to a point northwest of Snake Island, Corner 6, Latitude 38° 08.4066960' N., Longitude 76° 42.9105565' W.; thence southeast, crossing the mouth of Buckner Creek, to a point on the mean low water line of Snake Island, Corner 7, Latitude 38° 08.3698254' N., Longitude 76° 42.8939656' W.; thence southeasterly following the mean low water line of Snake Island to Corner 8, Latitude 38° 08.2333798' N., Longitude 76° 42.7778877' W.; thence south-southwesterly, crossing the mouth of Buckner Creek, to Corner 9, Latitude 38° 08.2134371' N., Longitude 76° 42.7886409' W.; thence southeasterly to a point on the mean low water line of the southern headland of Buckner Creek, Corner 10, Latitude 38° 08.1956281' N., Longitude 76° 42.7679625' W.; thence southwesterly following the mean low water line of Nomini Creek, crossing the mouth of an un-named cove at the narrowest point between the headlands and continuing to follow the mean low water line to a point on White Oak Point, Latitude 38° 07.6428228' N., Longitude 76° 43.0233530' W.; thence west to Corner 1, said point being the point of beginning.
"Oyster dredge" means any device having a maximum weight of 150 pounds with attachments, maximum width of 50 inches, and maximum tooth length of four inches.
"Oyster Patent Tong" means any patent tong not exceeding 100 pounds in gross weight, including any attachment other than rope and with the teeth not to exceed four inches in length.
"Pocomoke and Tangier Sounds Management Area (PTSMA)" means the area as defined in § 28.2-524 of the Code of Virginia.
"Pocomoke and Tangier Sounds Rotation Area 1" means all public grounds and unassigned grounds, within an area of the PTSMA, in Pocomoke and Tangier Sounds, bounded by a line beginning at a point on the Maryland-Virginia state line, located at Latitude 37° 54.6136000' N., Longitude 75° 53.9739600' W.; thence south to the house on Great Fox Island, Latitude 37° 53.6946500' N., Longitude 75° 53.8898800' W.; thence westerly to a point, Latitude 37° 53.3633500' N., Longitude 75° 56.5589600' W.; thence south to a point, Latitude 37° 48.4429100' N., Longitude 75° 56.4883600' W.; thence easterly to the north end of Watts Island, Latitude 37° 48.7757800' N., Longitude 75° 53.5994100' W.; thence northerly to the house on Great Fox Island, Latitude 37° 53.6946500' N., Longitude 75° 53.8898800' W.; thence southeasterly to Pocomoke Sound Shoal Flashing Light Red "8", Latitude 37° 52.4583300' N., Longitude 75° 49.4000000' W.; thence southeasterly to Messongo Creek Entrance Buoy Green Can "1", Latitude 37° 52.1000000' N., Longitude 75° 47.8083300' W.; thence southeast to Guilford Flats Junction Light Flashing 2+1 Red "GF", Latitude 37° 50.9533300' N., Longitude 75° 46.6416700' W.; thence southerly to a point on a line from Guilford Flats Junction Light to the northern-most point of Russell Island, where said line intersects the PTSMA boundary, Latitude 37° 48.4715943' N., Longitude 75° 46.9955932' W.; thence clockwise following the PTSMA boundary to a point on the Maryland-Virginia state line, said point being the point of beginning.
"Pocomoke and Tangier Sounds Rotation Area 2" means all public grounds and unassigned grounds, within an area of the PTSMA, in Pocomoke and Tangier Sounds, bounded by a line beginning at the house on Great Fox Island, located at Latitude 37° 53.6946500' N., Longitude 75° 53.8898800' W.; thence southerly to the north end of Watts Island, Latitude 37° 48.7757800' N., Longitude 75° 53.5994100' W.; thence westerly to a point, Latitude 37° 48.4429100' N., Longitude 75° 56.4883600' W.; thence northerly to a point, Latitude 37° 53.3633500' N., Longitude 75° 56.5589600' W.; thence easterly to the house on Great Fox Island, said house being the point of beginning. Also, Pocomoke and Tangier Sounds Rotation Area 2 shall include all public grounds and unassigned grounds in the PTSMA in Pocomoke Sound bounded by a line beginning at a point on the Maryland-Virginia state line, Latitude 37° 54.6136000' N., Longitude 75° 53.9739600' W.; thence following the PTSMA boundary clockwise to a point on the line from the northern-most point of Russell Island to Guilford Flats Junction Light Flashing 2+1 Red "GF", where said line intersects the PTSMA boundary, Latitude 37° 48.4715943' N., Longitude 75° 46.9955932' W.; thence northerly to Guilford Flats Junction Light Flashing 2+1 Red "GF", Latitude 37° 50.9533300' N., Longitude 75° 46.6416700' W.; thence northwesterly to Messongo Creek Entrance Buoy Green Can "1", Latitude 37° 52.1000000' N., Longitude 75° 47.8083300' W.; thence northwesterly to Pocomoke Sound Shoal Flashing Light Red "8", Latitude 37° 52.4583300' N., Longitude 75° 49.4000000' W.; thence northwesterly to the house on Great Fox Island, Latitude 37° 53.6946500' N., Longitude 75° 53.8898800' W.; thence northerly to a point on the Maryland-Virginia state line, said point being the point of beginning.
"Public oyster ground" means all those grounds
defined in §°28.2-551 of the Code of Virginia or by any other acts of the
General Assembly pertaining to those grounds, all ground those
grounds set aside as public oyster ground by court order, and all ground
those grounds set aside as public oyster ground by order of the
Marine Resources Commission, and may be redefined by any of these legal
authorities.
"Rappahannock River Rotation Area 1" shall
consist of all public grounds in the Rappahannock River with a boundary defined
as beginning at the MLW west of Broad Creek (37° 33.952', N., 76° 19.309', W.);
thence north to a VMRC buoy on the Baylor line (37° 34.539', N., 76° 19.022',
W.) to VMRC buoy (37° 34.683', N., 76° 19.100' W.); thence, northeasterly to
VMRC Buoy (37° 35.017', N., 76° 19.450', W.); thence, northeasterly to Sturgeon
Bar Light (7R) (37° 35.150', N., 76° 19.733', W.); thence, continuing northwest
to Mosquito Point Light (8R) (37° 36.100', N., 76° 21.300', W.); thence to the
house on Mosquito Point (37° 36.523, N., 76° 21.595', W.) bounded on the east
by a line from Windmill Point (37° 35.793', N., 76° 14.180', W.); thence,
southeast to Windmill Point Light (37° 35.793', N., 76° 14.180', W.); thence
southwesterly to Stingray Point Light (37° 33.673', N., 76° 16.362', W.);
thence, westerly to Stingray Point (37° 33.692', N., 76° 17.986', W.)
"Rappahannock River Rotation Area 2" shall
consist of all public grounds in the Rappahannock River with a boundary on the
east side defined as beginning at the house at Mosquito Point (37° 36.523', N.,
76° 21.595', W.); thence, southeast to Mosquito Point Light "8R" (37°
36.100', N., 76° 21.300', W.); thence, continuing southeasterly to Sturgeon Bar
Beacon "7R" (37° 35.150', N., 76° 19.733', W.); thence, southwesterly
to VMRC buoy (37° 34.933', N., 76° 21.050', W.); thence, southwesterly to VMRC
buoy (37° 34.883', N., 76° 21.100', W.); thence, to a pier west of Hunting
Creek at Grinels (37° 34.436', N., 76° 26.288', W.). Rappahannock River
Rotation Area 2 is bordered on the west by a line beginning at Mill Creek
channel marker "4" (37° 35.083', N., 76° 26.950', W.); thence,
northeasterly to Mill Creek channel marker "2" (37° 35.483', N., 76° 24.567',
W.); thence, northeasterly to the house at Mosquito Point (37° 36.523', N., 76°
21.595', W.).
"Rappahannock River Rotation Area 3" shall
consist of all public grounds in the Rappahannock River with a boundary defined
as beginning from the north channel fender at the Norris Bridge (37° 37.483',
N., 76° 25.345', W.); thence, southeast to the house on Mosquito Point (37°
36.523', N., 76° 21.595', W.); thence southwest to Mill Creek channel marker
"2" (37° 35.483', N., 76° 24.567', W.); thence southwesterly to Mill
Creek channel marker "4" (37° 35.083', N., 76° 24.950', W.); thence
northeasterly to Parrotts Creek channel marker "1" (37° 36.033', N.,
76° 25.417', W.); thence northerly to VMRC buoy (37° 36.333', N., 76° 25.200',
W.); thence returning northerly to the Norris Bridge north channel fender.
"Rappahannock River Rotation Area 4" shall
consist of all public grounds in the Rappahannock River with the boundary
defined as beginning at the White Stone end of the Norris Bridge (37° 38.129',
N., 76° 24.722', W.); thence, along the Norris Bridge to the north channel
fender (37° 37.483', N., 76° 25.345', W.); thence westerly to the VMRC buoy 5-4
(36° 38.005', N., 76° 30.028', W.); thence, north to Old House Point (37°
39.139', N., 76° 29.685', W.); thence, northerly to Ball Point (37° 41.660',
N., 76° 28.632', W.); thence, continuing northerly to Bar Point (37° 41.666',
N., 76° 28.866', W.); thence easterly to Black Stump Point (37° 41.737', N.,
76° 28.111', W.); thence, southeasterly to the western headland of Taylor Creek
(37° 40.983', N., 76° 27.602', W.); thence, southwesterly to VMRC Buoy at Ferry
Bar north (37° 40.300', N., 76° 28.500', W.); thence, southeasterly to VMRC
Buoy at Ferry Bar South (37° 40.167', N., 76° 28.583, W.); thence,
southwesterly to Corrotoman Point Duck Blind (37° 39.876', N., 76° 28.420',
W.); thence, southerly to VMRC Buoy 543 (37° 39.267', N., 76° 27.850', W.);
thence, southerly to VMRC Buoy at Drumming West (37° 38.883', N., 76° 27.683',
W.); thence, southerly to VMRC buoy at Drumming East (37° 38.833', N., 76°
27.567', W.); thence, northeasterly to Orchard Point (37° 38.924', N., 76°
27.126', W.).
"Rappahannock River Rotation Area 5" shall
consist of public grounds in the Rappahannock River with a boundary defined as
beginning east of a line from the east headland of Whiting Creek (37° 36.658',
N., 76° 30.312', W.); thence, north to Towles Point buoy "6" (37°
38.033', N., 76° 30.283', W.); thence, easterly to VMRC buoy 5-4 (37° 38.005',
N., 76° 30.028', W.) continuing easterly to the Norris Bridge north channel
fender (37° 37.483', N., 76° 25.345', W.); thence, along the Norris Bridge
southwest to Grey's Point (37° 36.833', N., 76° 25.999', W.).
"Rappahannock River Rotation Area 6" shall
consist of all public grounds in the Rappahannock River with a boundary defined
as beginning from Balls Point (37° 39.355', N., 76° 34.444', W.); thence,
northeast to the flashing red buoy "8" off Rogue Pt. (37° 40.158',
N., 76° 32.939', W.); thence, southeasterly to VMRC Towles Point Area buoy (37°
38.833', N., 76° 31.536', W.); thence, southwesterly to VMRC White House
Sanctuary buoy (37° 38.150', N., 76° 30.533', W.); thence, southeasterly to red
buoy "6" (37° 38.033', N., 76° 30.283', W.); thence, southerly to the
eastern headland of the mouth of Whiting Creek (37° 36.658', N., 76° 30.312',
W.).
"Rappahannock River Area 7" shall consist of all
public grounds in the Rappahannock River with a boundary defined as beginning
south of a line from Punchbowl Point (37° 44.675', N., 76° 37.325', W.) to
Monaskon Point (37° 44.063', N., 76° 34.108', W.) to a line from Rogue's Point
(37° 40.040', N., 76° 32.253', W.); thence, northwest to flashing red buoy
"8" (37° 40.158', N., 76° 32.939', W.) continuing southwest to Balls
Point (37° 39.355', N., 76° 34.444', W.).
"Rappahannock River Area 8" shall consist of all
public grounds in the Rappahannock River with a boundary defined as beginning
east and south of a line from Jones Point (37° 46.786', N., 76° 40.835', W.) to
Sharps Point (37° 49.364', N., 76° 42.087', W.) to a line from Punchbowl Point
(37° 44.675', N., 76° 37.325', W.) to Monaskon Point (37° 44.063', N., 76°
34.108', W.).
"Rappahannock River Area 9" shall consist of all
public grounds in the Rappahannock River with a boundary defined as beginning
west of the line drawn from Sharps Pt. (37° 49.364', N., 76° 42.087', W.) to
Jones Pt (37° 46.786', N., 76° 40.835', W.) to the Route 360 (Downing Bridge).
"Standard oyster dredge" means any device or
instrument having a maximum weight of 150 pounds with attachments, maximum width
of 50 inches and maximum tooth length of four inches.
"Tangier-Pocomoke Sounds Rotation Area 1" shall
include all public and unassigned grounds within the PTSMA, in Tangier Sound,
that are west and south of a line beginning at the Maryland-Virginia Line (37°
54.61360', N., 75° 53.97396', W.) continuing south on Great Fox Island (37°
53.69465', N., 75° 53.88988', W.); thence continuing west to point "Area
2-NW" (37° 53.36335', N., 75° 56.55896', W.); thence south to a point
"Area 2-SW" (37° 48.44291', N., 75° 56.48836', W.); thence continuing
east to the north end of Watts Island (37° 48.77578', N., 75° 53.59941', W.).
Area 1 shall also include all of the public and unassigned grounds in the PTSMA
in Pocomoke Sound south and west of a line beginning at the house on Great Fox
Island (37° 53.69465', N., 75° 53.88988', W.); thence east southeast to Red
Channel Marker # 8 (37° 52.45833', N., 75° 49.40000', W.); thence south
southeast to Green Channel Marker "C – 1" (37° 52.10000', N., 75°
47.80833', W.) thence southeast to Flashing Red "2+1" (37° 50.95333',
N., 75° 46.64167', W.); thence south to the northernmost tip of Russell Island
(37° 48.38796', N., 75° 47.02241', W.).
"Tangier-Pocomoke Sounds Rotation Area 2" shall
include all public and unassigned grounds in the PTSMA with a boundary defined
as beginning at the house on Great Fox Island (37° 53.69465', N., 75°
53.88988', W.); thence south to the north end of Watts Island (37° 48.77578',
N., 75° 53.59941', W.); thence west to a point "Area 2-SW" (37° 48.44291',
N., 75° 56.48836', W.); thence north to point "Area 2-NW" (37°
53.36335', N., 75° 56.55896', W.); thence back east to the house on Great Fox
Island. This area includes Public Ground No. 7, known as "Thoroughfare
Rock" and Public Ground No. 8, known as "California Rock" in
Tangier Sound. Area 2 shall also include all public and unassigned grounds in
the PTSMA in Pocomoke Sound northeast of a line beginning at the house on Great
Fox Island (37° 53.69465', N., 75° 53.88988', W.); thence east southeast to Red
Channel Marker # 8 (37° 52.45833', N., 75° 49.40000', W.); thence south
southeast to Green Channel Marker "C – 1" (37° 52.10000', N., 75°
47.80833', W.); thence southeast to Flashing Red "2+1" (37°
50.95333', N., 75° 46.64167', W.); thence south to the northernmost tip of
Russell Island (37° 48.38796', N., 75° 47.02241', W.).
"Tangier Sound Hand Tong Area" means that area
in the PTSMA south and west of a line from Fishbone Island thence southeast to
bell buoy #5, thence south southwest to buoy #3 (such area to include all of
Public Ground 3 and Flat Rock) and shall be a hand tong area only and Cod
Harbor (approximately 1,124 acres) beginning at a point of East Point Marsh,
said point having the Virginia state coordinates, south section, coordinates of
north 555,414.89, east 2,730,388.85; thence south 79°59', east 2,260 feet to a
line designating the western extent of the PTSMA as described in § 28.2-524 of
the Code of Virginia; thence south 10°16', west 2,800 feet; thence south
28°46', west 8,500 feet to a point on Sand Spit, position north 545,131.78,
east, 2,728,014.94; thence along the mean low water line of Cod Harbor in a
west, north and northeast direction crossing Canton Creek and Mailboat Harbor
from headland to headland to the point of beginning.
"Thomas Rock Hand Scrape Area" means the public
grounds and unassigned grounds in an area of the James River with an eastern
boundary being the upstream side of the James River Bridge (Route 17), and a
western boundary being a line drawn from the south side of the river at Rainbow
Farm Point, a point on the shore, in line with markers "STH" and
"SMT" located at 37˚ 00.1965862' N., 76˚ 34.0712010' W.;
thence north-northeasterly to a VMRC marker "STH" located at 37˚
00.9815328' N., 76˚ 33.5955842' W.; thence to a Virginia Marine Resources
Commission (VMRC) marker "SMT" located at 37˚ 01.3228160' N.,
76˚ 33.3887351' W.; thence to the Flashing Green Channel Light #5, located
at 37˚ 02.3449949' N., 76˚ 32.7689936' W.; thence northeasterly to a
VMRC marker "NMT" located at 37˚ 02.7740540' N., 76˚
32.0960864' W.; thence to a VMRC marker "NTH" located at 37˚
03.2030055' N., 76˚ 31.4231211' W.; thence to a point on the north shore
of the river at Blunt (Blount) Point, said point being in line with markers
"NMT" and "NTH" and located at 37˚ 03.3805862' N.,
76˚ 31.1444562' W.
"Rappahannock River Area 7" means all public grounds, in that area of the Rappahannock River, bounded downstream by a line from Rogue Point, located at Latitude 37° 40.0400000' N., Longitude 76° 32.2530000' W.; thence west-northwesterly to Flashing Red Buoy "8", Latitude 37° 40.1580000' N., Longitude 76° 32.9390000' W.; thence southwesterly to Balls Point, Latitude 37° 39.3550000' N., Longitude 76° 34.4440000' W.; and bounded upstream by a line from Punchbowl Point, Latitude 37° 44.6750000' N., Longitude 76° 37.3250000' W.; thence southeasterly to Monaskon Point, Latitude 37° 44.0630000' N., Longitude 76° 34.1080000' W.
"Rappahannock River Area 8" means all public grounds, in that area of the Rappahannock River, bounded downstream by a line from Monaskon Point, located at Latitude 37° 44.0630000' N., Longitude 76° 34.1080000' W.; thence northwesterly to Punchbowl Point, Latitude 37° 44.6750000' N., Longitude 76° 37.3250000' W.; and bounded upstream by a line from Jones Point, Latitude 37° 46.7860000' N., Longitude 76° 40.8350000' W.; thence north-northwesterly to Sharps Point, Latitude 37° 49.3640000' N., Longitude 76° 42.0870000' W.
"Rappahannock River Area 9" means all Public Grounds, in that area of the Rappahannock River, bounded downstream by a line from Sharps Point, located at Latitude 37° 49.3640000' N., Longitude 76° 42.0870000' W.; thence south-southeasterly to Jones Point, Latitude 37° 46.7860000' N., Longitude 76° 40.8350000' W.; and bounded upstream by the Thomas J. Downing Bridge (U.S. Route 360).
"Rappahannock River Rotation Area 1" means all public grounds, in that area of the Rappahannock River and Chesapeake Bay, bounded by a line offshore and across the mouth of the Rappahannock River from a point on the mean low water line of Windmill Point, located at Latitude 37° 35.7930000' N., Longitude 76° 14.1800000' W.; thence southeast to Windmill Point Light, Latitude 37° 35.7930000' N., Longitude 76° 14.1800000' W.; thence southwesterly to Stingray Point Light, Latitude 37° 33.6730000' N., Longitude 76° 16.3620000' W.; thence westerly to a point on the mean low water line of Stingray Point, Latitude 37° 33.6920000' N., Longitude 76° 17.9860000' W.; and bounded upstream by a line from the mean low water line west of Broad Creek, Latitude 37° 33.9520000' N., Longitude 76° 19.3090000' W.; thence northeasterly to a VMRC Buoy on the Baylor line, Latitude 37° 34.5390000' N., Longitude 76° 19.0220000' W.; thence northeasterly to a VMRC Buoy, Latitude 37° 34.6830000' N., Longitude 76° 19.1000000' W.; thence northwesterly to a VMRC Buoy, Latitude 37° 35.0170000' N., Longitude 76° 19.4500000' W.; thence northwesterly to Sturgeon Bar Light "7R", Latitude 37° 35.1500000' N., Longitude 76° 19.7330000' W.; thence continuing northwesterly to Mosquito Point Light "8R", Latitude 37° 36.1000000' N., Longitude 76° 21.3000000' W.; thence northwesterly to the southern-most corner of the house on Mosquito Point, Latitude 37° 36.5230000' N., Longitude 76° 21.5950000' W.
"Rappahannock River Rotation Area 2" means all public grounds, in that area of the Rappahannock River, bounded downstream by a line from the southern-most corner of the house on Mosquito Point, located at Latitude 37° 36.5230000' N., Longitude 76° 21.5950000' W.; thence southeast to Mosquito Point Light "8R", Latitude 37° 36.1000000' N., Longitude 76° 21.3000000' W.; thence continuing southeasterly to Sturgeon Bar Beacon "7R", Latitude 37° 35.1500000' N., Longitude 76° 19.7330000' W.; thence west-southwesterly to a VMRC Buoy, Latitude 37° 34.9330000' N., Longitude 76° 21.0500000' W.; thence southwesterly to a VMRC Buoy, Latitude 37° 34.8830000' N., Longitude 76° 21.1000000' W.; thence southwesterly to a pier west of Hunting Creek at Grinels, Latitude 37° 34.4360000' N., Longitude 76° 26.2880000' W.; and bounded on the upstream by a line from Mill Creek Channel Marker "4", Latitude 37° 35.0830000' N., Longitude 76° 26.9500000' W.; thence northeasterly to Mill Creek Channel Marker "2", Latitude 37° 35.4830000' N., Longitude 76° 24.5670000' W.; thence northeasterly to the southern-most corner of the house on Mosquito Point, Latitude 37° 36.5230000' N., Longitude 76° 21.5950000'0 W.
"Rappahannock River Rotation Area 3" means all public grounds, in that area of the Rappahannock River, beginning from the north channel fender at the Robert O. Norris, Jr. Bridge, located at Latitude 37° 37.4830000' N., Longitude 76° 25.3450000' W.; thence southeast to the southern-most corner of the house on Mosquito Point, Latitude 37° 36.5230000' N., Longitude 76° 21.5950000' W.; thence southwest to Mill Creek Channel Marker "2", Latitude 37° 35.4830000' N., Longitude 76° 24.5670000' W.; thence southwesterly to Mill Creek Channel Marker "4", Latitude 37° 35.0830000' N., Longitude 76° 24.9500000' W.; thence northeasterly to Parrotts Creek Channel Marker "1", Latitude 37° 36.0330000' N., Longitude 76° 25.4170000' W.; thence northerly to VMRC Buoy, Latitude 37° 36.3330000' N., Longitude 76° 25.2000000' W.; thence northerly to the north channel fender of the Robert O. Norris, Jr. Bridge, said point being the point of beginning.
"Rappahannock River Rotation Area 4" means all public grounds, in that area of the Rappahannock River, Corrotoman River and Carter Creek, beginning at the White Stone end of the Robert O. Norris, Jr. Bridge (State Route 3), located at Latitude 37° 38.1290000' N., Longitude 76° 24.7220000' W.; thence along said bridge to the north channel fender, Latitude 37° 37.4830000' N., Longitude 76° 25.3450000' W.; thence westerly to the VMRC Buoy "5-4", Latitude 37° 38.0050000' N., Longitude 76° 30.0280000' W.; thence northerly to Old House Point, Latitude 37° 39.1390000' N., Longitude 76° 29.6850000' W.; thence northeasterly to Ball Point, Latitude 37° 41.6600000' N., Longitude 76° 28.6320000' W.; thence northerly to Bar Point, Latitude 37° 41.6660000' N., Longitude 76° 28.6660000' W.; thence easterly to Moran Point (Black Stump Point), Latitude 37° 41.7370000' N., Longitude 76° 28.1110000' W.; thence southeasterly to the western headland of Taylor Creek, Latitude 37° 40.9830000' N., Longitude 76° 27.6020000' W.; thence southwesterly to VMRC reef marker "Ferry Bar – North", Latitude 37° 40.3000000' N., Longitude 76° 28.5000000' W.; thence southwesterly to VMRC reef marker "Ferry Bar – South", Latitude 37° 40.1670000' N., Longitude 76° 28.5830000' W.; thence southeasterly to a duck blind west of Corrotoman Point, Latitude 37° 39.8760000' N., Longitude 76° 28.4200000' W.; thence southerly to VMRC Buoy "543", Latitude 37° 39.2670000' N., Longitude 76° 27.8500000' W.; thence southerly to VMRC Buoy "Drumming-West", Latitude 37° 38.8830000' N., Longitude 76° 27.6830000' W.; thence southerly to VMRC Buoy "Drumming-East", Latitude 37° 38.8330000' N., Longitude 76° 27.5670000' W.; thence northeasterly to Orchard Point, Latitude 37° 38.9240000' N., Longitude 76° 27.1260000' W.
"Rappahannock River Rotation Area 5" means all public grounds, in that area of the Rappahannock River, beginning at the Greys Point end of the Robert O. Norris, Jr. Bridge (State Route 3), located at Latitude 37° 36.8330000' N., Longitude 76° 25.9990000' W.; thence northeasterly along the bridge to the north channel fender, Latitude 37° 37.4830000' N., Longitude 76° 25.3450000' W.; thence west-northwesterly to VMRC Buoy "5-4", Latitude 37° 38.0050000' N., Longitude 76° 30.0280000' W.; thence westerly to Buoy "R6", Latitude 37° 38.0330000' N., Longitude 76° 30.2830000' W.; thence south to the eastern headland of Whiting Creek, Latitude 37° 36.6580000' N., Longitude 76° 30.3120000' W.
"Rappahannock River Rotation Area 6" means all public grounds, in that area of the Rappahannock River, beginning on the eastern headland of Whiting Creek, located at Latitude 37° 36.6580000' N., Longitude 76° 30.3120000' W.; thence north to Buoy "R6", Latitude 37° 38.0330000' N., Longitude 76° 30.2830000' W.; thence northwesterly to VMRC White House Sanctuary Buoy, Latitude 37° 38.1500000' N., Longitude 76° 30.5330000' W.; thence northwesterly to VMRC Towles Point Area Buoy, Latitude 37° 38.8330000' N., Longitude 76° 31.5360000' W.; thence northwesterly to Flashing Red Buoy "8" off Rogue Point, Latitude 37° 40.1580000' N., Longitude 76° 32.9390000' W.; thence southwesterly to Balls Point, Latitude 37° 39.3550000' N., Longitude 76° 34.4440000' W.
"Thomas Rock Area" means all public grounds and unassigned grounds, in that area of the James River, with an eastern boundary being the upstream side of the James River Bridge (U.S. Route 17), and a western boundary being a line drawn from the south side of the river at Rainbow Farm Point, a point on the shore, in line with VMRC Markers "STH" and "SMT", located at Latitude 37° 00.1965862' N., Longitude 76° 34.0712010' W.; thence north-northeasterly to a VMRC Marker "STH", Latitude 37° 00.9815328 N., Longitude 76° 33.5955842' W.; thence to a VMRC Marker "SMT", at Latitude 37° 01.3228160' N., Longitude 76° 33.3887351' W.; thence to the Flashing Green Channel Light #5, at Latitude 37° 02.3449949' N., Longitude 76° 32.7689936' W.; thence northeasterly to a VMRC Marker "NMT", Latitude 37° 02.7740540' N., Longitude 76° 32.0960864' W.; thence to a VMRC Marker "NTH" located at Latitude 37° 03.2030055' N., Longitude 76° 31.4231211' W.; thence to a point on the north shore of the river at Blunt (Blount) Point, said point being in line with VMRC Markers "NMT" and "NTH" and located at Latitude 37° 03.3805862' N., Longitude 76° 31.1444562' W.
"Unassigned ground" means all grounds other than
public oyster ground as defined by this chapter and which have not been set
aside or assigned by lease, permit, or easement by the Marine Resources
Commission those grounds defined by any other acts of the General
Assembly pertaining to those grounds, all those grounds set aside by court
order, and all those grounds set aside by order of the Marine Resources
Commission, and may be redefined by any of these legal authorities.
"Upper Chesapeake Bay (Blackberry Hangs Hand Scrape
Area)" means the area in Public Ground Number 118, south from the Smith
Point Light to the Great Wicomico Light.
"Yeocomico River Area" means that area of the
Yeocomico River inside Public Grounds 8, 102, 104, and 107.
"York River Hand Scrape Area" means the public
grounds in an area of the York River upstream of the Coleman Bridge (Route 17),
along the north side of the river, to just upstream of Aberdeen Creek, with
said public grounds being: Public Grounds Numbers 30 and 31 of Gloucester
County, the additional public ground near Pages Rock as described by § 28.2-649
of the Code of Virginia, and the additional area to Public Ground 30 as set
aside by court order.
"Upper Chesapeake Bay - Blackberry Hangs Area" means all public grounds and unassigned grounds, in that area of the Chesapeake Bay, bounded by a line, beginning at a point approximately 300 feet east of the mean low water line of the Chesapeake Bay and approximately 1,230 feet southwest of the end of the southern-most stone jetty at the mouth of the Little Wicomico River, said point being Corner 1, Latitude 37° 53.1811193' N., Longitude 76° 14.1740146' W.; thence east-southeasterly to Corner 2, Latitude 37° 52.9050025' N., Longitude 76° 11.9357257' W.; thence easterly to Corner 3, Latitude 37° 52.9076552' N., Longitude 76° 11.6098145' W.; thence southwesterly to Corner 4, Latitude 37° 52.8684955' N., Longitude 76° 11.6402444' W.; thence east-southeasterly to Corner 5, Latitude 37° 52.7924853' N., Longitude 76° 11.0253352' W.; thence southwesterly to Corner 6, Latitude 37° 49.4327736' N., Longitude 76° 13.2409959' W.; thence northwesterly to Corner 7, Latitude 37° 50.0560555' N., Longitude 76° 15.0023234' W.; thence north-northeasterly to Corner 8, Latitude 37° 50.5581183' N., Longitude 76° 14.8772805' W.; thence north-northeasterly to Corner 9, Latitude 37° 52.0260950' N., Longitude 76° 14.5768550' W.; thence northeasterly to Corner 1, said corner being the point of beginning.
"Yeocomico River Area" means that area of the North West Yeocomico River, inside Public Ground 8 of Westmoreland County and those areas of the South Yeocomico River inside Public Grounds 102, 104, and 107 of Northumberland County.
Public Ground 8 of Westmoreland County is located in the North West Yeocomico River, beginning at a point approximately 1,455 feet northeast of Crow Bar and 1,850 feet northwest of White Point, said point being Corner 1, located at Latitude 38° 02.7468214' N., Longitude 76° 33.0775726' W.; thence southeasterly to Corner 2, Latitude 38° 02.7397202' N., Longitude 76° 33.0186286' W.; thence southerly to Corner 3, Latitude 38° 02.6021644' N., Longitude 76° 33.0234175' W.; thence westerly to Corner 4, Latitude 38° 02.6006669' N., Longitude 76° 33.0824799' W.; thence northerly to Corner 1, said corner being the point of beginning.
Public Ground 102 of Northumberland County is located in the South Yeocomico River, beginning at a point approximately 630 feet south of Mundy Point and 1,745 feet southwest of Tom Jones Point, said point being Corner 1, located at Latitude 38° 01.2138059' N., Longitude 76° 32.5577201' W,; thence east-northeasterly to Corner 2, Latitude 38° 01.2268644' N., Longitude 76° 32.4497849' W.; thence southwesterly to Corner 3, Latitude 38° 01.1091209' N., Longitude 76° 32.5591101' W.; thence northerly to Corner 1, said corner being the point of beginning.
Public Ground 104 of Northumberland County is located in the South Yeocomico River, beginning at a point approximately 670 feet north of Walker Point and 1,900 feet northwest of Palmer Point, said point being Corner 1, located at Latitude 38° 00.8841841' N., Longitude 76° 32.6106215' W.; thence southeasterly to Corner 2, Latitude 38° 00.8609163' N., Longitude 76° 32.5296302' W.; thence southeasterly to Corner 3, Latitude 38° 00.6693092' N., Longitude 76° 32.4161866' W.; thence southwesterly to Corner 4, Latitude 38° 00.6418466' N., Longitude 76° 32.5394849' W.; thence northwesterly to Corner 1, said corner being the point of beginning.
Public Ground 107 of Northumberland County is located in the South Yeocomico River, beginning at a point approximately 1,000 feet southwest of Barn Point and 1,300 feet northwest of Tom Jones Point, said point being Corner 1, located at Longitude 38° 01.1389367' N., Latitude 76° 32.3425617' W.; thence east-southeasterly to Corner 2, Latitude 38° 01.4106421' N., Longitude 76° 32.1077962' W.; thence southwesterly to Corner 3, Latitude 38° 01.2717197' N., Longitude 76° 32.2917989' W.; thence north-northwesterly to Corner 1, said corner being the point of beginning.
"York River Area Rotation Area 1" means all public grounds in the York River, within Gloucester County, between a line from Upper York River Flashing Red Channel Marker", Latitude 37° 17.8863666' N., Longitude 76° 34.6534166' W.; thence northeasterly to Red Day Marker "2" at the mouth of Cedar Bush Creek, Latitude 37° 18.6422166' N., Longitude 76° 33.8216000' W.; upstream to a line from the Flashing Yellow VIMS Data Buoy "CB", Latitude 37° 20.4670000' N., Longitude 76° 37.4830000' W.; thence northeasterly to the inshore end of the wharf at Clay Bank.
"York River Area Rotation Area 2" means all public grounds in the York River, within Gloucester County, from the George P. Coleman Memorial Bridge (U.S. Route 17), upstream to a line from Upper York River Flashing Red Channel Marker "8", Latitude 37° 17.8863666' N., Longitude 76° 34.6534166' W.; thence northeasterly to Red Day Marker "2" at the mouth of Cedar Bush Creek, Latitude 37° 18.6422166' N., Longitude 76° 33.8216000' W.
4VAC20-720-30. Standing stock criteria.
Any public oyster ground or unassigned ground may be closed
to harvest by the Marine Resources Commissioner of Marine Resources,
when it is determined by the Oyster Replenishment Office Department
that the standing stock of oysters has been depleted by 50% or more. The
initial estimate of standing stock for each area shall be the volume of oysters
as of October 1 of each the current year as determined by the
Oyster Replenishment Officer Department.
4VAC20-720-35. Public oyster ground harvest season.
The Marine Resources Commissioner of the Marine
Resources Commission shall, when it is determined to be warranted and
appropriate, be authorized to extend the public oyster harvest season in
the James River Seed Area, including the Deep Water Shoal State Replenishment
Area, but the extension shall not be established to go beyond June 30.
4VAC20-720-40. Open oyster harvest season and areas.
A. It shall be unlawful for any person to harvest oysters from public and unassigned grounds outside of the seasons and areas set forth in this section.
B. The lawful seasons and areas for the harvest of oysters from the public oyster grounds and unassigned grounds are as described in the following subdivisions of this subsection:
1. James River Seed Area, including the Deep Water Shoal State
Replenishment Seed Area: October 1, 2011 October 1, 2012, through
April 30, 2012 April 30, 2013.
2. James River Hand Scrape Area and the Thomas Rock Hand
Scrape Area (James River): November 1, 2011 November 1, 2012,
through January 31, 2012 January 31, 2013.
3. York River Hand Scrape Area 1: January 1,
2012 January 1, 2013, through February 29, 2012 February
28, 2013.
4. Mobjack Bay Hand Scrape Area: March 1, 2012, through
March 31, 2012.
5. 4. Milford Haven: December 1, 2011 December
1, 2012, through February 29, 2012 February 28, 2013.
6. 5. Deep Rock Patent Tong Area: December
1, 2011 December 1, 2012, through February 29, 2012 February
28, 2013.
7. 6. Rappahannock River Rotation Area 1 5:
October 1, 2011 October 1, 2012, through November 30, 2011
November 30, 2012.
8. 7. Rappahannock River Rotation Area 2 3:
November 1, 2011 November 1, 2012, through December 31, 2011
December 31, 2012.
9. 8. Rappahannock River Area 7: December 1,
2011 December 1, 2012, through January 31, 2012 January
31, 2013.
10. 9. Rappahannock River Area 8: December 1,
2011 December 1, 2012, through January 31, 2012 January
31, 2013.
11. 10. Rappahannock River Area 9: November
1, 2011 November 1, 2012, through December 31, 2011 December
31, 2012.
12. 11. Great Wicomico River Hand Scrape
Area: December 1, 2011 December 1, 2012, through January 31,
2012 January 31, 2013.
13. 12. Upper Chesapeake Bay, -
Blackberry Hangs Hand Scrape Area: December 1, 2011 December
1, 2012, through January 31, 2012 January 31, 2013.
14. 13. Little Wicomico River: October 1,
2011 October 1, 2012, through December 31, 2011 December
31, 2012.
15. 14. Coan River: October 1, 2011 October
1, 2012, through December 31, 2011 December 31, 2012.
16. 15. Yeocomico River: October 1, 2011 October
1, 2012, through December 31, 2011 December 31, 2012.
17. 16. Nomini River Creek: October
1, 2011 October 1, 2012, through December 31, 2011 December
31, 2012.
18. 17. Tangier-Pocomoke Pocomoke and
Tangier Sounds Rotation Area 1 2: December 1, 2011 December
1, 2012, through February 29, 2012 February 28, 2013.
19. 18. Seaside of the Eastern Shore (for clean
cull oysters only): November 1, 2011 November 1, 2012, through February
29, 2012 February 28, 2013.
4VAC20-720-60. Day and time limit.
A. It shall be unlawful to take, catch, or possess oysters on
Saturday and Sunday from the public oyster grounds or unassigned grounds in the
waters of the Commonwealth of Virginia, for commercial purposes, except
that this provision shall not apply to any person harvesting no more than one
bushel per day by hand or ordinary tong for household use only during the
season when the public oyster grounds or unassigned grounds are legally open
for harvest. The presence of any gear normally associated with the
harvesting of oysters on board the boat or other vehicle used during any
harvesting under this exception shall be prima facie evidence of violation of
this chapter.
B. It shall be unlawful for any person to harvest or attempt
to harvest oysters prior to sunrise or after 2 p.m. from the areas described in
4VAC20-720-40 B 1 through 18 17, except as described in
4VAC20-1230. In addition, it shall be unlawful for any boat with an oyster
dredge aboard to leave the dock until one hour before sunrise or return to the
dock after sunset, and it shall be unlawful for any boat with a hand scrape
aboard to leave the dock until one-half hour before sunrise or return to the
dock after sunset.
4VAC20-720-70. Gear restrictions.
A. It shall be unlawful for any person to harvest oysters in
the James River Seed Areas, including the Deep Water Shoal State Replenishment
Seed Area; the Rappahannock River Area 9; Milford Haven and Little Wicomico,
Coan, Nomini and Yeocomico Rivers, except by hand tong or ordinary tong.
It shall be unlawful for any person to have a hand scrape on board a boat that
is harvesting or attempting to harvest oysters from public grounds by hand tong
or ordinary tong.
B. It shall be unlawful to harvest oysters from the area as
described in 4VAC20-720-40 B 19 18, except by hand.
C. It shall be unlawful to harvest oysters in the
Rappahannock River Rotation Areas 1 3 and 2 5; the
Rappahannock River Areas 7 and 8, James River Hand Scrape Area, Thomas
Rock Hand Scrape Area, Upper Chesapeake Bay (Blackberry Blackberry
Hangs Hand Scrape Area) Area, and York River Rotation
Area 1, and Great Wicomico, and Mobjack Bay Hand Scrape
Areas, except by hand scrape.
D. It shall be unlawful for any person to have more than one hand scrape on board any boat that is harvesting oysters or attempting to harvest oysters from public grounds. It shall be unlawful for any person to have a hand tong on board a boat that is harvesting or attempting to harvest oysters from public grounds by hand scrape.
E. It shall be unlawful to harvest oysters from the area as
described in 4VAC20-720-40 B 18 17, except by a standard an
oyster dredge.
F. It shall be unlawful to harvest oysters from the Deep Rock
Patent Tong Area, except by a standard an oyster patent tong.
4VAC20-720-75. Gear license.
A. It shall be unlawful for any person to harvest shellfish,
from the hand scrape areas in the Rappahannock River, James River, Upper
Chesapeake Bay, York River, Mobjack Bay and Great Wicomico River, unless
that person has first obtained a current valid hand scrape
license.
B. It shall be unlawful for any person to harvest shellfish,
with a an oyster dredge from the public oyster grounds in the
area as described in 4VAC20-720-40 B 18 17, unless that person
has first obtained a current valid oyster dredge license.
C. It shall be unlawful for any person to harvest shellfish,
with a patent tong from the public oyster grounds in the Deep Rock Patent
Tong Area, unless that person has first obtained a current valid
oyster patent tong license.
D. It shall be unlawful for any person to harvest shellfish,
with an ordinary tong or a hand tong from the public oyster
grounds, as described in subsection A of 4VAC20-720-70, unless that person has
first obtained a current ordinary tong or valid hand tong
license.
4VAC20-720-80. Quotas and harvest limits.
A. The lawful daily harvest and possession limit of clean
cull oysters harvested from the areas described in 4VAC20-720-40 B 2 through 17
16 shall be 10 eight bushels per registered commercial
fisherman licensee. It shall be unlawful for any registered commercial
fisherman licensee to harvest or possess more than 10 eight
bushels per day. The lawful daily vessel limit of clean cull oysters harvested
from the areas described in 4VAC20-720-40 B 2 through 17 16 shall
be determined as the number of registered commercial fisherman licensees on
board the vessel multiplied by 10 eight bushels with a maximum
daily landing and possession limit of 30 24 bushels of clean cull
oysters per vessel. It shall be unlawful to possess on board any vessel or to
land more than the lawful daily vessel limit of clean cull oysters described in
this subsection.
B. In the area described in 4VAC20-720-40 B 18 17,
where harvesting is allowed by oyster dredge, there shall be a daily
harvest and possession limit of 10 eight bushels of clean cull
oysters per registered commercial fisherman licensee. It shall be unlawful for
any registered commercial fisherman licensee to harvest or possess more than 10
eight bushels per day. The lawful daily vessel limit of clean cull
oysters harvested by oyster dredge shall be determined as the number of
registered commercial fisherman licensees on board the vessel multiplied by 10
eight bushels with a maximum daily landing and possession limit of 30
24 bushels of clean cull oysters per vessel. It shall be unlawful to
possess on board any vessel or to land more than the lawful daily vessel limit
of clean cull oysters harvested by oyster dredge, as described in this
subsection. No blue crab bycatch is allowed. It shall be unlawful to possess on
board any vessel more than 250 hard clams.
C. Harvesters who export the oysters to an out-of-state market or do not sell the oysters to a licensed and Department of Health certified Virginia buyer but sell the oysters directly to the public for human consumption shall report oysters harvested on a daily basis and pay oyster taxes weekly.
4VAC20-720-85. James River seed quota and monitoring.
A. An oyster seed harvest quota of 120,000 bushels of seed is
established for the James River Seed Area, including the Deep Water Shoal State
Replenishment Seed Area, for the 2011/2012 harvest season. Once it has
been projected and announced that the quota of seed has been attained, it shall
be unlawful for any person to harvest seed oysters from these areas.
B. Of the 120,000-bushel seed quota described in subsection A
of this section no more than 40,000 bushels of this quota may be harvested from
October 1, 2011, through December 31, 2011. However, if it is
projected and announced that 40,000 bushels of seed have been harvested before
December 31, 2011, it shall be unlawful for any person to harvest seed
oysters from that date forward until January 1, 2012.
C. Any person harvesting or landing oyster seed from the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, shall report monthly on forms provided by the Virginia Marine Resources Commission all harvest of seed oysters. Reporting requirements shall consist of that person's Commercial Fisherman Registration License number, daily number of bushels of seed oysters harvested, harvest rock location, planting location (any lease numbers), and buyer name.
D. It shall be unlawful for any person harvesting seed oysters from the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, to fail to contact the Virginia Marine Resources Commission Interactive-Voice-Response (IVR) System within 24 hours of harvest or landing and provide that person's name, Commercial Fisherman Registration License number, time, date, daily number of bushels of seed oysters harvested, harvest rock location, planting location (any lease numbers), and buyer name.
4VAC20-720-90. Harvest permit required for the James River Hand
Scrape Area and Thomas Rock Hand Scrape Area.
A permit is required for the James River Hand Scrape
Area and the Thomas Rock Hand Scrape Area. It shall be unlawful for any
person to harvest, or attempt to harvest, oysters from the James River Hand
Scrape Area and the Thomas Rock Hand Scrape Area without first
obtaining a harvest permit from the Marine Resources Commission as required by
§ 28.2-518 of the Code of Virginia.
4VAC20-720-91. Harvest permit shall be required for the
James River Seed Area, including the Deep Water Shoal State Replenishment Area.
A harvest permit shall be required for the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, for the harvesting of seed oysters. It shall be unlawful for any person to harvest or attempt to harvest seed oysters from the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, without first obtaining and having on board a harvest permit.
4VAC20-720-95. Harvesting permit required for the
Rappahannock River Rotation Areas 1 through 6. (Repealed.)
A harvesting permit is required for the Rappahannock River
Rotation Areas 1 through 6. Included with this permit will be a map of the two
rotation areas that are open for harvesting in any given year. It shall be
unlawful for any person to harvest or attempt to harvest oysters from the
Rappahannock River Rotation Areas 1 through 6 without first obtaining and
having on board a harvest permit with a map of lower Rappahannock Rotation
Areas 1 through 6 that are open for harvesting in any given year.
4VAC20-720-100. Seed oyster planting procedures.
A. The marine police officer at the point of seed harvest may require that an officer be present during the seed planting. When this is required, it will be specified on the seed transfer permit. If an officer is required to be present at planting, the planter shall notify the marine police officer in the area prior to planting. It shall be unlawful for the permittee or planter to plant the oysters without a marine police officer being present.
B. The planting of seed oysters shall consist of spreading the oysters loosely on the bottom of the planting area. It shall be unlawful to plant seed oysters in any manner except by spreading the oysters loosely on the bottom.
C. Seed oysters shall be placed on a designated and marked
area of the private ground from which said oysters are not to be removed until
after March 31 April 30. It shall be unlawful to reharvest these
seed oysters prior to April 1 May 1.
VA.R. Doc. No. R13-3351; Filed September 6, 2012, 11:06 a.m.
DEPARTMENT OF MINES, MINERALS AND ENERGY
Final Regulation
Title of Regulation: 4VAC25-150. Virginia Gas and Oil Regulation (amending 4VAC25-150-10, 4VAC25-150-60, 4VAC25-150-80, 4VAC25-150-90, 4VAC25-150-100, 4VAC25-150-110, 4VAC25-150-120, 4VAC25-150-135, 4VAC25-150-140, 4VAC25-150-150, 4VAC25-150-160, 4VAC25-150-180, 4VAC25-150-190, 4VAC25-150-200, 4VAC25-150-210, 4VAC25-150-220, 4VAC25-150-230, 4VAC25-150-240, 4VAC25-150-250, 4VAC25-150-260, 4VAC25-150-280, 4VAC25-150-300, 4VAC25-150-310, 4VAC25-150-340, 4VAC25-150-360, 4VAC25-150-380, 4VAC25-150-390, 4VAC25-150-420, 4VAC25-150-460, 4VAC25-150-490, 4VAC25-150-500, 4VAC25-150-510, 4VAC25-150-520, 4VAC25-150-530, 4VAC25-150-550, 4VAC25-150-560, 4VAC25-150-590, 4VAC25-150-600, 4VAC25-150-610, 4VAC25-150-620, 4VAC25-150-630, 4VAC25-150-650, 4VAC25-150-660, 4VAC25-150-670, 4VAC25-150-680, 4VAC25-150-690, 4VAC25-150-700, 4VAC25-150-711, 4VAC25-150-720, 4VAC25-150-730, 4VAC25-150-740, 4VAC25-150-750).
Statutory Authority: §§ 45.1-161.3 and 45.1-361.27 of the Code of Virginia.
Effective Date: November 8, 2012.
Agency Contact: Michael Skiffington, Regulatory Coordinator, Department of Mines, Minerals and Energy, 1100 Bank Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TTY (800) 828-1120, or email mike.skiffington@dmme.virginia.gov.
Summary:
As a result of periodic review, the Department of Mines, Minerals and Energy is amending 4VAC25-150, Virginia Gas and Oil Regulation. Sections within 4VAC25-150 are amended to correct technical areas for accuracy, improve worker safety, and provide clarity. Amending 4VAC25-150-150 will reduce workload and increase efficiency for applicants by providing flexibility and economy to the permit process. 4VAC25-150-90 is updated to include symbols that are consistent with current industry usage and available CAD technology. Amendments to 4VAC25-150-80, 4VAC25-150-260, 4VAC25-150-300, 4VAC25-150-380, and 4VAC25-150-630 will protect the safety and health of oil and gas industry employees. An amendment to 4VAC25-150-90 is made to bring consistency to data submission requirements for the Division of Gas and Oil.
Changes to the proposed regulation (i) increase the timeframe for reclamation of permits from 90 to 180 days, (ii) correct citations, (iii) clarify requirements, and (iv) provide consistency with other department regulations.
Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.
Part I
Standards of General Applicability
Article 1
General Information
4VAC25-150-10. Definitions.
The following words and terms, when used in this
chapter, shall have the following meaning unless the context clearly
indicates otherwise:
"Act" means the Virginia Gas and Oil Act of 1990, Chapter 22.1 (§ 45.1-361.1 et seq.) of Title 45.1 of the Code of Virginia.
"Adequate channel" means a watercourse that will convey the designated frequency storm event without overtopping its banks or causing erosive damage to the bed, banks and overbank sections.
"Applicant" means any person or business who files an application with the Division of Gas and Oil.
"Approved" means accepted as suitable for its intended purpose when included in a permit issued by the director or determined to be suitable in writing by the director.
"Berm" means a ridge of soil or other material constructed along an active earthen fill to divert runoff away from the unprotected slope of the fill to a stabilized outlet or sediment trapping facility.
"Board" means the Virginia Gas and Oil Board.
"Bridge plug" means an obstruction intentionally placed in a well at a specified depth.
"Cased completion" means a technique used to make a well capable of production in which production casing is set through the productive zones.
"Cased/open hole completion" means a technique used to make a well capable of production in which at least one zone is completed through casing and at least one zone is completed open hole.
"Casing" means all pipe set in wells except conductor pipe and tubing.
"Causeway" means a temporary structural span constructed across a flowing watercourse or wetland to allow construction traffic to access the area without causing erosion damage.
"Cement" means hydraulic cement properly mixed with water.
"Channel" means a natural stream or man-made waterway.
"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy.
"Coal-protection string" means a casing designed to protect a coal seam by excluding all fluids, oil, gas or gas pressure from the seam, except such as may be found in the coal seam itself.
"Cofferdam" means a temporary structure in a river, lake or other waterway for keeping the water from an enclosed area that has been pumped dry so that bridge foundations, pipelines, etc., may be constructed.
"Completion" means the process which results in a well being capable of producing gas or oil.
"Conductor pipe" means the short, large diameter string used primarily to control caving and washing out of unconsolidated surface formations.
"Corehole" means any shaft or hole sunk,
drilled, bored or dug, that breaks or disturbs the surface of the earth as
part of a geophysical operation solely for the purpose of obtaining
rock samples or other information to be used in the exploration for coal,
gas, or oil. The term shall not include a borehole used solely for the
placement of an explosive charge or other energy source for generating seismic
waves.
"Days" means calendar days.
"Denuded area" means land that has been cleared of vegetative cover.
"Department" means the Department of Mines, Minerals and Energy.
"Detention basin" means a stormwater management facility which temporarily impounds and discharges runoff through an outlet to a downstream channel. Infiltration is negligible when compared to the outlet structure discharge rates. The facility is normally dry during periods of no rainfall.
"Dike" means an earthen embankment constructed to confine or control fluids.
"Directional survey" means a well survey that
measures the degree of deviation of a hole, or distance from the vertical
and the direction of deviation from true vertical, and the distance and
direction of points in the hole from vertical.
"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.
"Diversion" means a channel constructed for the purpose of intercepting surface runoff.
"Diverter" or "diverter system" means an assembly of valves and piping attached to a gas or oil well's casing for controlling flow and pressure from a well.
"Division" means the Division of Gas and Oil of the Department of Mines, Minerals and Energy.
[ "Division director" means the Director of the Division of Gas and Oil, also known as the Gas and Oil Inspector as defined in the Act. ]
"Erosion and sediment control plan" means a document containing a description of materials and methods to be used for the conservation of soil and the protection of water resources in or on a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain a record of all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives.
"Expanding cement" means any cement approved by the director which expands during the hardening process, including but not limited to regular oil field cements with the proper additives.
[ "Form prescribed by the director" means a
form issued by the division, or an equivalent facsimile, for use in meeting the
requirements of the Act or this chapter. ]
"Firewall" means an earthen dike or fire resistant structure built around a tank or tank battery to contain the oil in the event a tank ruptures or catches fire.
"Flume" means a constructed device lined with erosion-resistant materials intended to convey water on steep grades.
"Flyrock" means any material propelled by a blast that would be actually or potentially hazardous to persons or property.
[ "Form prescribed by the director" means a form issued by the division, or an equivalent facsimile, for use in meeting the requirements of the Act or this chapter. ]
"Gas well" means any well which produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.
"Gob well" means a coalbed methane gas well which is capable of producing coalbed methane gas from the de-stressed zone associated with any full-seam extraction of coal that extends above and below the mined-out coal seam.
"Groundwater" means all water under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, which has the potential for being used for domestic, industrial, commercial or agricultural use or otherwise affects the public welfare.
"Highway" means any public street, public alley, or public road.
"Inclination survey" means a well or corehole
survey, using the surface location of the well or corehole as the apex, to
determine the deviation of the well or corehole from the true vertical beneath
the apex on the same horizontal subsurface plane survey taken inside a
wellbore that measures the degree of deviation of the point of the survey from
true vertical.
"Inhabited building" means a building, regularly occupied in whole or in part by human beings, including, but not limited to, a private residence, church, school, store, public building or other structure where people are accustomed to assemble except for a building being used on a temporary basis, on a permitted site, for gas, oil, or geophysical operations.
"Intermediate string" means a string of casing that prevents caving, shuts off connate water in strata below the water-protection string, and protects strata from exposure to lower zone pressures.
"Live watercourse" means a definite channel with bed and banks within which water flows continuously.
"Mcf" means, when used with reference to natural gas, 1,000 cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and a temperature base of 60°F.
"Mud" means any mixture of water and clay or
other material as the term is commonly used in the industry a mixture of
materials that creates a weighted fluid to be circulated down hole during
drilling operations for the purpose of lubricating and cooling the bit,
removing cuttings, and controlling formation pressures and fluid.
"Natural channel" or "natural stream" means nontidal waterways that are part of the natural topography. They usually maintain a continuous or seasonal flow during the year, and are characterized as being irregular in cross section with a meandering course.
"Nonerodible" means a material such as riprap, concrete or plastic that will not experience surface wear due to natural forces.
"Oil well" means any well which produces or appears capable of producing a ratio of less than 6,000 cubic feet (6 Mcf) of gas to each barrel of oil, on the basis of a gas-oil ratio test.
"Open hole completion" means a technique used to make a well capable of production in which no production casing is set through the productive zones.
"Person" means any individual, corporation, partnership, association, company, business, trust, joint venture or other legal entity.
"Petitioner" means any person or business who files a petition, appeal, or other request for action with the Division of Gas and Oil or the Virginia Gas and Oil Board.
"Plug" means the stopping sealing of,
or a device or material used for the stopping sealing of,
the flow of water, a gas or oil wellbore or casing to prevent the
migration of water, gas, or oil from one stratum to another.
"Pre-development" means the land use and site conditions that exist at the time that the operations plan is submitted to the division.
"Produced waters" means water or fluids produced from a gas well, oil well, coalbed methane gas well or gob well as a byproduct of producing gas, oil or coalbed methane gas.
"Producer" means a permittee operating a well in Virginia that is producing or is capable of producing gas or oil.
"Production string" means a string of casing or tubing through which the well is completed and may be produced and controlled.
"Red shales" means the undifferentiated shaley
portion of the bluestone Bluestone formation normally found above
the Pride Shale Member of the formation, and extending upward to the base of
the Pennsylvanian strata, which red shales are predominantly red and green in
color but may occasionally be gray, grayish green and grayish red.
"Red zone" is a zone in or contiguous to a permitted area that could have potential hazards to workers or to the public.
"Retention basin" means a stormwater management facility which, similar to a detention basin, temporarily impounds runoff and discharges its outflow through an outlet to a downstream channel. A retention basin is a permanent impoundment.
"Sediment basin" means a depression formed from the construction of a barrier or dam built to retain sediment and debris.
"Sheet flow," also called overland flow, means shallow, unconcentrated and irregular flow down a slope. The length of strip for sheet flow usually does not exceed 200 feet under natural conditions.
"Slope drain" means tubing or conduit made of nonerosive material extending from the top to the bottom of a cut or fill slope.
"Special diligence" means the activity and skill
exercised by a good businessman businessperson in his a
particular specialty, which must be commensurate with the duty to be performed
and the individual circumstances of the case; not merely the diligence of an
ordinary person or nonspecialist.
"Stabilized" means able to withstand normal exposure to air and water flows without incurring erosion damage.
"Stemming" means the inert material placed in a borehole after an explosive charge for the purpose of confining the explosion gases in the borehole or the inert material used to separate the explosive charges (decks) in decked holes.
"Storm sewer inlet" means any structure through which stormwater is introduced into an underground conveyance system.
"Stormwater management facility" means a device that controls stormwater runoff and changes the characteristics of that runoff, including but not limited to, the quantity, quality, the period of release or the velocity of flow.
"String of pipe" or "string" means the total footage of pipe of uniform size set in a well. The term embraces conductor pipe, casing and tubing. When the casing consists of segments of different size, each segment constitutes a separate string. A string may serve more than one purpose.
"Sulfide stress cracking" means embrittlement of the steel grain structure to reduce ductility and cause extreme brittleness or cracking by hydrogen sulfide.
"Surface mine" means an area containing an open pit excavation, surface operations incident to an underground mine, or associated activities adjacent to the excavation or surface operations, from which coal or other minerals are produced for sale, exchange, or commercial use; and includes all buildings and equipment above the surface of the ground used in connection with such mining.
"Target formation" means the geologic gas or oil formation identified by the well operator in his application for a gas, oil or geophysical drilling permit.
"Temporary stream crossing" means a temporary span installed across a flowing watercourse for use by construction traffic. Structures may include bridges, round pipes or pipe arches constructed on or through nonerodible material.
"Ten-year storm" means a storm that is capable of producing rainfall expected to be equaled or exceeded on the average of once in 10 years. It may also be expressed as an exceedance probability with a 10% chance of being equaled or exceeded in any given year.
"Tubing" means the small diameter string set after the well has been drilled from the surface to the total depth and through which the gas or oil or other substance is produced or injected.
"Two-year storm" means a storm that is capable of producing rainfall expected to be equaled or exceeded on the average of once in two years. It may also be expressed as an exceedance probability with a 50% chance of being equaled or exceeded in any given year.
"Vertical ventilation hole" means any hole drilled from the surface to the coal seam used only for the safety purpose of removing gas from the underlying coal seam and the adjacent strata, thus, removing the gas that would normally be in the mine ventilation system.
"Water bar" means a small obstruction constructed
across the surface of a road, pipeline right-of-way, or other area of ground
disturbance in order to interrupt and divert the flow of water down
the on a grade of the road and divert the water to provide for
sediment control for the purpose of controlling erosion and sediment
migration.
"Water-protection string" means a string of casing designed to protect groundwater-bearing strata.
4VAC25-150-60. Due dates for reports and decisions.
A. Where the last day fixed for (i) submitting a
request for a hearing, holding a hearing or issuing a decision in an
enforcement action under Article 3 (4VAC25-150-170 et seq.) of this part, (ii)
submitting a monthly or annual report under Article 4 (4VAC25-150-210 et seq.)
of this part, (iii) submitting a report of commencement of activity under
4VAC25-150-230, (iv) submitting a drilling report, a completion report or other
report under 4VAC25-150-360, or (v) submitting a plugging affidavit under
4VAC25-150-460 or any required report falls on a Saturday, Sunday,
or any day on which the Division of Gas and Oil office is closed as authorized
by the Code of Virginia or the Governor, the required action may be done on the
next day that the office is open.
B. All submittals to or notifications of the Division of Gas and Oil identified in subsection A of this section shall be made to the division office no later than 5 p.m. on the day required by the Act or by this chapter.
Article 2
Permitting
4VAC25-150-80. Application for a permit.
A. Applicability.
1. Persons required in §°45.1-361.29 of the Code of Virginia to obtain a permit or permit modification shall apply to the division on the forms prescribed by the director. All lands on which gas, oil or geophysical operations are to be conducted shall be included in a permit application.
2. In addition to specific requirements for variances in other sections of this chapter, any applicant for a variance shall, in writing, document the need for the variance and describe the alternate measures or practices to be used.
B. The application for a permit shall, as applicable, be accompanied by the fee in accordance with § 45.1-361.29 of the Code of Virginia, the bond in accordance with § 45.1-361.31 of the Code of Virginia, and the fee for the Orphaned Well Fund in accordance with § 45.1-361.40 of the Code of Virginia.
C. Each application for a permit shall include information on all activities, including those involving associated facilities, to be conducted on the permitted site. This shall include the following:
1. The name and address of:
a. The gas, oil or geophysical applicant;
b. The agent required to be designated under § 45.1-361.37 of the Code of Virginia; and
c. Each person whom the applicant must notify under § 45.1-361.30 of the Code of Virginia;
2. The certifications required in § 45.1-361.29 E of the Code of Virginia;
3. The proof of notice to affected parties required in § 45.1-361.29 E of the Code of Virginia, which shall be:
a. A copy of a signed receipt or electronic return receipt of delivery of notice by certified mail;
b. A copy of a signed receipt acknowledging delivery of notice by hand; or
c. If all copies of receipt of delivery of notice by certified mail have not been signed and returned within 15 days of mailing, a copy of the mailing log or other proof of the date the notice was sent by certified mail, return receipt requested;
4. If the application is for a permit modification, proof of notice to affected parties, as specified in subdivision C 3 of this section;
4. 5. Identification of the type of well or
other gas, oil or geophysical operation being proposed;
5. 6. The plat in accordance with 4VAC25-150-90;
6. 7. The operations plan in accordance with
4VAC25-150-100;
7. 8. The information required for operations
involving hydrogen sulfide in accordance with 4VAC25-150-350;
8. 9. The location where the Spill Prevention
Control and Countermeasure (SPCC) plan is available, if one is required;
9. 10. The Department of Mines, Minerals and
Energy, Division of Mined Land Reclamation's permit number for any area
included in a Division of Mined Land Reclamation permit on which a proposed
gas, oil or geophysical operation is to be located;
10. 11. For an application for a conventional
well, the information required in 4VAC25-150-500;
11. 12. For an application for a coalbed methane
gas well, the information required in 4VAC25-150-560;
12. 13. For an application for a geophysical
operation, the information required in 4VAC25-150-670; and
13. 14. For an application for a permit to drill
for gas or oil in Tidewater Virginia, the environmental impact assessment
meeting the requirements of § 62.1-195.1 B of the Code of Virginia.
D. After July 1, 2009, all permit applications and plats submitted to the division shall be in electronic form or a format prescribed by the director.
4VAC25-150-90. Plats.
A. When filing an application for a permit for a well or
corehole, the applicant also shall file an accurate plat certified by a
licensed professional engineer or licensed land surveyor on a scale, to be
stated thereon, of 1 inch equals 400 feet (1:4800). The scope of the plat shall
be large enough to show the board approved unit and all areas within the
greater of 750 feet or one half of the distance specified in § 45.1-361.17 of
the Code of Virginia from the proposed well or corehole, or within a unit
established by the board for the subject well. The plat shall be submitted
on a form prescribed by the director.
B. The known courses and distances of all property lines and lines connecting the permanent points, landmarks or corners within the scope of the plat shall be shown thereon. All lines actually surveyed shall be shown as solid lines. Lines taken from deed or chain of title descriptions only shall be shown by broken lines. All property lines shown on a plat shall agree with surveys, deed descriptions, or acreages used in county records for tax assessment purposes.
C. A north and south line shall be given and shown on the plat, and point to the top of the plat.
D. Wells or coreholes shall be located on the plat as follows:
1. The proposed or actual surface elevation of the subject
well or corehole shall be shown on the plat, within an accuracy of one vertical
foot. The surface elevation shall be tied to either a government benchmark or
other point of proven elevation by differential or aerial survey, or
by trigonometric leveling, or by Global Positioning System (GPS) survey.
The location of the government benchmark or the point of proven elevation and
the method used to determine the surface elevation of the subject well or
corehole shall be noted and described on the plat.
2. The proposed or actual horizontal location of the subject well or corehole determined by survey shall be shown on the plat. The proposed or actual well or corehole location shall be shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 of the Code of Virginia, also known as the State Plane Coordinate System.
3. The courses and distances of the well or corehole location from two permanent points or landmarks on the tract shall be shown; such landmarks shall be set stones, iron pipes, T-rails or other manufactured monuments, including mine coordinate monuments, and operating or abandoned wells which are platted to the accuracy standards of this section and on file with the division. If temporary points are to be used to locate the actual well or corehole location as provided for in 4VAC25-150-290, the courses and distances of the well or corehole location from the two temporary points shall be shown.
4. Any other well, permitted or drilled, within the distance specified in § 45.1-361.17 of the Code of Virginia or the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well shall be shown on the plat or located by notation. The type of each well shall be designated by the following symbols as described in the Federal Geographic Data Committee (FGDC) Digital Cartographic Standard for Geologic Map Symbolization:
EDITOR'S NOTICE: The symbols in subdivision 4 a through l designating well types are replaced with the following table.
Symbols for additional features as required in 4VAC25-150-510, 4VAC25-150-590, and 4VAC25-150-680 should be taken from the FDGC standard where applicable.
E. Plats shall also contain:
1. For a conventional gas and oil or injection well, the information required in 4VAC25-150-510;
2. For a coalbed methane gas well, the information required in 4VAC25-150-590; or
3. For a corehole, the information required in 4VAC25-150-680.
F. Any subsequent application for a new permit or permit modification shall include an accurate copy of the well plat, updated as necessary to reflect any changes on the site, newly discovered data or additional data required since the last plat was submitted. Any revised plat shall be certified as required in subsection A of this section.
4VAC25-150-100. Operations plans.
A. Each application for a permit or permit modification shall include an operations plan, in a format approved by or on a form prescribed by the director. The operations plan and accompanying maps or drawings shall become part of the terms and conditions of any permit which is issued.
B. The applicant shall indicate how risks to the public safety or to the site and adjacent lands are to be managed, consistent with the requirements of § 45.1-361.27 B of the Code of Virginia, and shall provide a short narrative, if pertinent. The operations plan shall identify "red zone" areas.
4VAC25-150-110. Permit supplements and permit modifications.
A. Permit supplements.
1. Standard permit supplements. A permittee shall be allowed
to submit a permit supplement when work being performed either:
a. Does not change the disturbance area as described in the
original permit; or and
b. Involves activities previously permitted.
The permittee shall submit written documentation of the
changes made to the permitted area within seven working no later than
30 days after completing the change. All other changes to the permit shall
require a permit modification in accordance with § 45.1-361.29 of the Code of
Virginia.
2. Emergency permit supplements. If a change must be implemented immediately for an area off the disturbance area as described in the original permit, or for an activity not previously permitted due to actual or threatened imminent danger to the public safety or to the environment, the permittee shall:
a. Take immediate action to minimize the danger to the public or to the environment;
b. Orally notify Notify the director as soon as
possible of actions taken to minimize the danger and, if the director
determines an emergency still exists and grants oral approval, commence
additional changes if necessary; and
c. Submit a written supplement to the permit within
seven working days of notifying the director with a written description of
the emergency and action taken. The supplement shall contain a
description of the activity which was changed, a description of the new
activity, and any amended data, maps, plats, or other information required by
the director. An incident report may also be required as provided for in
4VAC25-150-380.
Any changes to the permit are to be temporary and restricted to those that are absolutely necessary to minimize danger. Any permanent changes to the permit shall require a permit modification as provided for in subsection B of this section.
B. Permit modifications.
1. Applicability. All changes to the permit which do not fit the description contained in subsection A of this section shall require a permit modification in accordance with § 45.1-361.29 of the Code of Virginia.
2. Notice and fees. Notice of a permit modification shall be given in accordance with § 45.1-361.30 of the Code of Virginia. The application for a permit modification shall be accompanied, as applicable, by the fee in accordance with § 45.1-361.29 of the Code of Virginia and the bond in accordance with § 45.1-361.31 of the Code of Virginia.
3. Waiver of right to object. Upon receipt of notice, any person may, on a form approved by the director, waive the time requirements and their right to object to a proposed permit modification. The department shall be entitled to rely upon the waiver to approve the permit modification.
4. Permit modification. The permittee shall submit a written
application for a permit modification on a form prescribed by the director. The
permittee may not undertake the proposed work until the permit modification has
been issued. The As appropriate, the application shall include,
but not be limited to:
a. The name and address of:
(1) The permittee; and
(2) Each person whom the applicant must notify under § 45.1-361.30 of the Code of Virginia;
b. The certifications required in § 45.1-361.29 E of the Code of Virginia;
c. The proof of notice required in § 45.1-361.29 E of the Code of Virginia, as provided for in 4VAC25-150-80 C 3;
d. Identification of the type of work for which a permit modification is requested;
e. The plat in accordance with 4VAC25-150-90;
f. All data, maps, plats and plans in accordance with 4VAC25-150-100 necessary to describe the activity proposed to be undertaken;
g. When the permit modification includes abandoning a gas or oil well as a water well, a description of the plugging to be completed up to the water-bearing formation and a copy of the permit issued for the water well by the Virginia Department of Health;
h. The information required for operations involving hydrogen sulfide in accordance with 4VAC25-150-350 if applicable to the proposed operations;
i. The location where the Spill Prevention Control and Countermeasure (SPCC) plan is available, if one has been developed for the site of the proposed operations;
j. The Department of Mines, Minerals and Energy, Division of Mined Land Reclamation's permit number for any area included in a Division of Mined Land Reclamation permit; and
k. The information, as appropriate, required in
4VAC25-150-500, 4VAC25-150-560, or 4VAC25-150-670, or 4VAC25-150-720.
4VAC25-150-120. Transfer of permit rights.
A. Applicability.
1. No transfer of rights granted by a permit shall be made without prior approval from the director.
2. Any approval granted by the director of a transfer of permit rights shall be conditioned upon the proposed new operator complying with all requirements of the Act, this chapter and the permit.
B. Application. Any person requesting a transfer of rights
granted by a permit shall submit a written application on a form prescribed by
the director. The application shall be accompanied by a fee of $65 $75
and bond, in the name of the person requesting the transfer, in accordance with
§ 45.1-361.31 of the Code of Virginia. The application shall contain, but is
not limited to:
1. The name and address of the current permittee, the current permit number and the name of the current operation;
2. The name and address of the proposed new operator and the proposed new operations name;
3. Documentation of approval of the transfer by the current permittee;
4. If the permit was issued on or before September 25, 1991, an updated operations plan, in accordance with 4VAC25-150-100, showing how all permitted activities to be conducted by the proposed new permittee will comply with the standards of this chapter;
5. If the permit was issued on or before September 25, 1991, for a well, a plat meeting the requirements of 4VAC25-150-90 updated to reflect any changes on the site, newly discovered data or additional data required since the last plat was submitted, including the change in ownership of the well; and
6. If the permit was issued on or before September 25, 1991, if applicable, the docket number and date of recordation of any order issued by the board for a pooled unit, pertaining to the current permit.
C. Standards for approval. The director shall not
approve the transfer of permit rights unless when the proposed
new permittee:
1. Has registered with the department in accordance with § 45.1-361.37 of the Code of Virginia;
2. Has posted acceptable bond in accordance with § 45.1-361.31 of the Code of Virginia; and
3. Has no outstanding debt pursuant to § 45.1-361.32 of the Code of Virginia.
D. The new permittee shall be responsible for any violations of or penalties under the Act, this chapter, or conditions of the permit after the director has approved the transfer of permit rights.
4VAC25-150-135. Waiver of right to object to permit applications.
Upon receipt of notice, any person may, on a form approved by
the director, waive the time requirements and their right to object to a
proposed permit application. The department division shall be
entitled to rely upon the waiver to approve the permit application.
4VAC25-150-140. Objections to permit applications.
A. Objections shall be filed in writing, at the office of the
Division division, in accordance with § 45.1-361.35 of the
Code of Virginia. The director shall notify affected parties of an objection
as soon as practicable.
B. If after the director has considered notice to be given under 4VAC25-150-130 B of this chapter, a person submits an objection with proof of receipt of actual notice within 15 days prior to submitting the objection, then the director shall treat the objection as timely.
C. Objections to an application for a new or modified permit shall contain:
1. The name of the person objecting to the permit;
2. The date the person objecting to the permit received notice of the permit application;
3. Identification of the proposed activity being objected to;
4. A statement of the specific reason for the objection;
5. A request for a stay to the permit, if any, together with justification for granting a stay; and
6. Any other information the person objecting to the permit wishes to provide.
D. When deciding to convene a hearing pursuant to § 45.1-361.35 of the Code of Virginia, the director shall consider the following:
1. Whether the person objecting to the permit has standing to object as provided in § 45.1-361.30 of the Code of Virginia;
2. Whether the objection is timely; and
3. Whether the objection meets the applicable standards for objections as provided in § 45.1-361.35 of the Code of Virginia.
E. If the director decides not to hear the objection, then he shall notify the person who objects and the permit applicant in writing, indicating his reasons for not hearing the objection, and shall advise the objecting person of his right to appeal the decision.
4VAC25-150-150. Hearing and decision on objections to permit applications.
A. In any hearing on objections to a permit application:
1. The hearing shall be an informal fact finding hearing in
accordance with the Administrative Process Act, § 9-6.14:11 2.2-4019
of the Code of Virginia.
2. The permit applicant and any person with standing in accordance with § 45.1-361.30 of the Code of Virginia may be heard.
3. Any valid issue in accordance with § 45.1-361.35 of the Code of Virginia may be raised at the hearing. The director shall determine the validity of objections raised during the hearing.
B. The director shall, as soon after the hearing as
practicable, issue his decision in writing and hand deliver or send the
decision by certified mail to all parties to the hearing. The director shall
mail the decision, or a summary of the decision, to all other persons given
notice of the hearing. The decision shall include:
1. The subject, date, time and location of the hearing;
2. The names of the persons objecting to the permit;
3. A summary of issues and objections raised at the hearing;
4. Findings of fact and conclusions of law;
5. The text of the decision, including any voluntary agreement; and
6. Appeal rights.
C. Should the director deny the permit issuance and allow
the objection, a written notice of the decision shall be sent to any person receiving
notice of the [ permit application ].
4VAC25-150-160. Approval of permits and permit modifications.
A. Permits, permit modifications, permit renewals, and transfer of permit rights shall be granted in writing by the director.
B. The director may not issue a permit, permit renewal,
or permit modification prior to the end of the time period for filing
objections pursuant to § 45.1-361.35 of the Code of Virginia unless, upon
receipt of notice, any person may, on a form approved by the director, waive
the time requirements and their right to object to a proposed permit
application or permit modification application. The department division
shall be entitled to rely upon the waiver to approve the permit application or
permit modification.
C. The director may not issue a permit to drill for gas or oil in Tidewater Virginia until he has considered the findings and recommendations of the Department of Environmental Quality, as provided for in § 62.1-195.1 of the Code of Virginia and, where appropriate, has required changes in the permitted activity based on the Department of Environmental Quality's recommendations.
D. The provisions of any order of the Virginia Gas and Oil Board that govern a gas or oil well permitted by the director shall become conditions of the permit.
4VAC25-150-180. Notices of violation.
A. The director may issue a notice of violation if he finds a violation of any of the following:
1. Chapter 22.1 (§ 45.1-361.1 et seq.) of Title 45.1 of the Code of Virginia;
2. This chapter;
3. 4VAC25 Chapter 160 (4VAC25-160-10 et seq.) (4VAC25-160)
entitled "The Virginia Gas and Oil Board Regulation";
4. Any board order; or
5. Any condition of a permit, which does not create an imminent danger or harm for which a closure order must be issued under 4VAC5-150-190.
B. A notice of violation shall be in writing, signed, and set forth with reasonable specificity:
1. The nature of the violation, including a reference to the section or sections of the Act, applicable regulation, order or permit condition which has been violated;
2. A reasonable description of the portion of the operation to which the violation applies, including an explanation of the condition or circumstance that caused the portion of the operation to be in violation, if it is not self-evident in the type of violation itself;
3. The remedial action required, which may include interim steps; and
4. A reasonable deadline for abatement, which may include a deadline for accomplishment of interim steps.
C. The director may extend the deadline for abatement or for accomplishment of an interim step, if the failure to meet the deadline previously set was not caused by the permittee's lack of diligence. An extension of the deadline for abatement may not be granted when the permittee's failure to abate has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial action required.
D. If the permittee fails to meet the deadline for abatement or for completion of any interim steps, the director shall issue a closure order under 4VAC25-150-190.
E. The director shall terminate a notice of violation by written notice to the permittee when he determines that all violations listed in the notice of violation have been abated.
F. A permittee issued a notice of violation may request, in
writing to the director, an informal fact-finding hearing to review the
issuance of the notice. This written request should shall be made
within 10 days of receipt of the notice. The permittee may request, in writing
to the director, an expedited hearing.
G. A permittee is not relieved of the duty to abate any violation under a notice of violation during an appeal of the notice. A permittee may apply for an extension of the deadline for abatement during an appeal of the notice.
H. The director shall issue a decision on any request for an
extension of the deadline for abatement under a notice of violation within five
days of receipt of such request. The director shall conduct an informal
fact-finding hearing, in accordance with the Administrative Process Act, § 9-6.14:11
2.2-4019 of the Code of Virginia, no later than 10 days after receipt of
the hearing request.
I. The director shall affirm, modify, or vacate the notice in writing to the permittee within five days of the date of the hearing.
4VAC25-150-190. Closure orders.
A. The director shall immediately order a cessation of operations or of the relevant portion thereof, when he finds any condition or practice which:
1. Creates or can be reasonably expected to create an imminent danger to the health or safety of the public, including miners; or
2. Causes or can reasonably be expected to cause significant, imminent, environmental harm to land, air or water resources.
B. The director may order a cessation of operations or of the relevant portion thereof, when:
1. A permittee fails to meet the deadline for abatement or for completion of any interim step under a notice of violation;
2. Repeated notices of violations have been issued for the same condition or practice; or
3. Gas, oil or geophysical operations are being conducted by any person without a valid permit from the Division of Gas and Oil.
C. A closure order shall be in writing, signed and shall set forth with reasonable specificity:
1. The nature of the condition, practice or violation;
2. A reasonable description of the portion of the operation to which the closure order applies;
3. The remedial action required, if any, which may include interim steps; and
4. A reasonable deadline for abatement, which may include deadline for accomplishment of interim steps.
D. A closure order shall require the person subject to the order to take all steps the director deems necessary to abate the violations covered by the order in the most expeditious manner physically possible.
E. If a permittee fails to abate a condition or practice or complete any interim step as required in a closure order, the director shall issue a show cause order under 4VAC25-150-200.
F. The director shall terminate a closure order by written notice to the person subject to the order when he determines that all conditions, practices or violations listed in the order have been abated.
G. A person issued a closure order may request, in writing to the director, an informal fact-finding hearing to review the issuance of the order within 10 days of receipt of the order. The person may request, in writing to the director, an expedited hearing within three days of receipt of the order.
H. A person is not relieved of the duty to abate any condition under, or comply with, any requirement of a closure order during an appeal of the order.
I. The director shall conduct an informal fact-finding
hearing, in accordance with the Administrative Process Act, § 9-6.14:11
2.2-4019 of the Code of Virginia, no later than 15 days after the order
was issued, or in the case of an expedited hearing, no later than five days
after the order was issued.
J. The director shall affirm, modify, or vacate the closure order in writing to the person the order was issued to no later than five days after the date of the hearing.
4VAC25-150-200. Show cause orders.
A. The director may issue a show cause order to a permittee requiring justification for why his permit should not be suspended or revoked whenever:
1. A permittee fails to abate a condition or practice or complete any interim step as required in a closure order;
2. A permittee fails to comply with the provisions of 4VAC25
Chapter 160 (4VAC25-160-10 et seq.) (4VAC25-160) entitled
"The Virginia Gas and Oil Board Regulation"; or
3. A permittee fails to comply with the provisions of an order issued by the Virginia Gas and Oil Board.
B. A show cause order shall be in writing, signed, and set forth with reasonable specificity:
1. The permit number of the operation subject to suspension or revocation; and
2. The reason for the show cause order.
C. The permittee shall have five days from receipt of the show cause order to request in writing an informal fact-finding hearing.
D. The director shall conduct an informal fact-finding
hearing, in accordance with the Administrative Process Act, § 9-6.14:11
2.2-4019 of the Code of Virginia, no later than five days after receipt
of the request for the hearing.
E. The director shall issue a written decision within five days of the date of the hearing.
F. If the permit is revoked, the permittee shall immediately cease operations on the permit area and complete reclamation within the deadline specified in the order.
G. If the permit is suspended, the permittee shall immediately commence cessation of operations on the permit area and complete all actions to abate all conditions, practices or violations, as specified in the order.
Article 4
Reporting
4VAC25-150-210. Monthly reports.
A. Each producer shall submit a monthly report, on a form
prescribed by the director or in a format approved by the director to the
division no later than 45 90 days after the last day of each
month.
B. Reports of gas production.
1. Every producer of gas shall report in Mcf the amount of production from each well.
2. Reports shall be summarized by county or city.
3. Reports shall provide the date of any new connection of a well to a gathering pipeline or other marketing system.
C. Reports of oil production.
1. Every producer of oil shall report in barrels the amount of oil production, oil on hand and oil delivered from each well.
2. Reports shall be summarized [ by ] county or city.
3. Reports shall provide the date of any new connection of a well to a gathering pipeline or other marketing system.
D. Reports of shut-in wells. If a well is shut-in or otherwise not produced during any month, it shall be so noted on the monthly report.
4VAC25-150-220. Annual reports.
A. Each permittee shall submit a calendar-year annual report to the division by no later than March 31 of the next year.
B. The annual report shall include as appropriate:
1. A confirmation of the accuracy of the permittee's current registration filed with the division or a report of any change in the information;
2. The name, address and phone number or numbers of the persons to be contacted at any time in case of an emergency;
3. Production of gas or oil on a well-by-well and county-by-county or city-by-city basis for each permit or as prescribed by the director and the average price received for each Mcf of gas and barrel of oil;
4. Certification by the permittee that the permittee has paid
all severance taxes for each permit; and
5. When required, payment to the Gas and Oil Plugging and
Restoration Fund as required in § 45.1-361.32 of the Code of Virginia.;
and
6. Certification by the permittee that bonds on file with the director have not been changed.
Article 5
Technical Standards
4VAC25-150-230. Commencement of activity.
A. Gas, oil or geophysical activity commences with ground-disturbing activity.
B. A permittee shall notify the division at least two
working days 48 hours prior to commencing ground-disturbing
activity, drilling a well or corehole, completing or recompleting a well or
plugging a well or corehole. The permittee shall notify the division, either
orally or in writing, of the permit number operation name and the
date and time that the work is scheduled to commence. Should activities not
commence as first noticed, the permittee shall make every effort to update the
division and reschedule the commencement of activity, indicating the specific
date and time the work will be commenced.
C. For dry holes and in emergency situations, the operator may
shall notify the division, orally or in writing, within two
working days 48 hours of commencing plugging activities.
4VAC25-150-240. Signs.
A. Temporary signs. Each permittee shall keep a sign posted at the point where the access road enters the permitted area of each well or corehole being drilled or tested, showing the name of the well or corehole permittee, the well name and the permit number, the telephone number for the Division of Gas and Oil and a telephone number to use in case of an emergency or for reporting problems.
The sign shall be posted from the commencement of construction until:
1. The well is completed;
2. The dry hole or corehole is plugged;
3. The site is stabilized; or
4. The permanent sign is posted.
B. Permanent signs. Each permittee shall keep a permanent sign posted in a conspicuous place on or near every producing well or well capable of being placed into production and on every associated facility. For any well drilled or sign replaced after September 25, 1991, the sign shall:
1. Be a minimum of 18 inches by 14 inches in size;
2. Contain, at a minimum, the permittee's name, the well name and the permit number, the Division of Gas and Oil phone number and the telephone number to use in case of an emergency or for reporting problems;
3. Contain lettering a minimum of 1 Ľ 1-1/4;
inches high; and
4. For a well, be located on the well or on a structure such as a meter house or pole located within 50 feet of the well head.
C. Signs designating "red zone" areas within the permit boundary are to be maintained in good order, include reflective material or be lighted so to be visible at night, and located as prescribed by the operator’s "red zone" safety plan internal to the operations plan.
C. D. All signs shall be maintained or replaced
as necessary to be kept in a legible condition.
4VAC25-150-250. Blasting and explosives.
A. Applicability. This section governs all blasting on gas, oil or geophysical sites, except for:
1. Blasting being conducted as part of seismic exploration where explosives are placed and shot in a borehole to generate seismic waves; or
2. Use of a device containing explosives for perforating a well.
B. Certification.
1. All blasting on gas, oil and geophysical sites shall be conducted by a person who is certified by the department, the Board of Coal Mining Examiners, or by the Virginia Department of Housing and Community Development.
2. The director may accept a certificate issued by another state in lieu of the certification required in subdivision B 1 of this section, provided the department, the Board of Coal Mining Examiners, or the Department of Housing and Community Development has approved reciprocity with that state.
C. Blasting safety. Blasting shall be conducted in a manner as
prescribed by 4VAC25-110, Regulations Governing Blasting in Surface Mining
Operations, designed to prevent injury to persons, or and
damage to features described in the operations plan under 4VAC25-150-100 B.
1. When blasting is conducted within 200 feet of a pipeline
or high-voltage transmission line, the blaster shall take due precautionary
measures for the protection of the pipeline or high-voltage transmission line,
and shall notify the owner of the facility or his agent that such blasting is
intended.
2. Flyrock shall not be allowed to fall farther from the
blast than one-half the distance between the blast and the nearest inhabited
building, and in no case outside of the permitted area.
3. When blasting near a highway, the blaster must ensure
that all traffic is stopped at a safe distance from the blast. Blasting areas
shall be posted with warning signs.
4. All blasting shall be conducted during daylight hours,
one-half hour before sunrise to one-half hour after sunset, unless approved by the
director.
5. Misfires.
a. The handling of a misfired blast shall be under the
direct supervision of a certified blaster.
b. When a misfire occurs, the blaster shall wait for at
least 15 minutes or the period of time recommended by the manufacturer of the
explosives and the detonator, whichever is longer, before allowing anyone to
return to the blast site.
6. Blasting signals.
a. Before a blast is fired, a warning signal audible to a
distance of at least one-half mile shall be given by the blaster in charge, who
shall make certain that all surplus explosives are in a safe place and that all
persons are at a safe distance from the blast site or under sufficient cover to
protect them from the effects of the blast.
b. A code of warning signals shall be established and
posted in one or more conspicuous places on the permitted site, and all
employees shall be required to conform to the code.
7. Explosives and detonators shall be placed in
substantial, nonconductive, closed containers (such as those containers meeting
standards prescribed by the Institute of Makers of Explosives) when brought on
the permitted site. Explosives and detonators shall not be kept in the same
container. Containers shall be posted with warning signs.
8. Storage of explosives and detonators on gas, oil or
geophysical sites is allowed only with prior approval by the director.
9. The permittee shall report to the Division of Gas and
Oil by the quickest means possible any theft or unaccounted-for loss of
explosives. When reporting such a theft or loss, the permittee shall indicate
other local, state and federal authorities contacted.
10. Damaged or deteriorated explosives and detonators shall
be destroyed by a certified blaster in accordance with the manufacturer's
recommendations.
D. Ground vibration.
1. The ground-vibration limits in this subsection shall not
apply on surface property owned or leased by the permittee, or on property for
which the surface owner gives a written waiver specifically releasing the
operator from the limits.
2. Blasting without seismographic monitoring. Blasting may
be conducted by a certified blaster without seismographic monitoring provided
the maximum charge is determined by the formula W = (D/Ds)˛ where W
is the maximum weight of explosive in pounds per delay (eight milliseconds or
greater); D is the actual distance in feet from the blast location to the
nearest inhabited building; and Ds is the scaled distance factor to
be applied without seismic monitoring, as found in Table 1.25.D-1.
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3. Blasting with seismographic monitoring.
a. A permittee may use the ground-vibration limits in Table
1.25.D-2 to determine the maximum allowable peak particle velocity. If Table
1.25.D-2 is used, a seismographic record including both particle velocity and
vibration-frequency levels shall be provided for each blast. The method for the
analysis of the predominant frequency contained in the blasting records shall
be approved by the director before implementation of this alternative blasting
level.
b. The permittee may choose to record every blast. As long
as the seismographic records indicate particle velocities have remained within
the limits prescribed in Tables 1.25.D-1 or 1.25.D-2, the permittee shall be
considered to be in compliance with this subsection.
EDITOR'S NOTICE: Table 1.25 D-2: Alternative Blasting Level Criteria is not printed and is deleted by this regulatory action.
c. Ground vibration shall be measured as the particle
velocity. Particle velocity shall be recorded in three mutually perpendicular
directions. The maximum allowable peak particle velocity shall apply to each of
the three measurements.
d. All seismic tests carried out for the purposes of this
section shall be analyzed by a qualified seismologist.
e. All seismic tests carried out for the purposes of this
section shall be conducted with a seismograph that has an upper-end flat
frequency response of at least 200 Hz.
E. Airblast shall not exceed the maximum limits prescribed
in Table 1.25.E-1 at the location of any inhabited building. The 0.1 Hz or lower,
flat response or C-weighted, slow response shall be used only when approved by
the director.
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F. If the director concludes that blasting on a particular
site has potential to create unsafe conditions, then he may:
1. Require the permittee to monitor ground vibration and
airblast for all blasts on the site for a specified period of time;
2. Impose more stringent limits on ground vibration and
airblast levels than those specified in this section. The director may order
the permittee to obtain an evaluation of the blast site by a vibration
consultant or a technical representative of the explosives manufacturer before
imposing a more stringent limit. Blasting may not resume on the site being
evaluated until the evaluation and recommendations are submitted to the
director, and the director has given his approval.
G. Records.
1. The permittee shall keep records of all blasts, and
these records shall contain the following:
a. Name of company or contractor;
b. Location, date, and time of the blast;
c. Name, signature, and certification number of the blaster
in charge;
d. Type of material blasted;
e. Number of holes; their burden and spacing;
f. Diameter and depth of the holes;
g. Types of explosives used;
h. Total amount of explosives used per hole;
i. Maximum weight of explosives per delay period;
j. Method of firing and the type of circuit;
k. Direction and distance in feet to the nearest inhabited
building;
l. Weather conditions (including wind directions, etc.);
m. Height or length of stemming;
n. Description of any mats or other protection used;
o. Type of detonators and delay periods used; and
p. Any seismograph reports, including:
(1) The name and signature of the person operating the
seismograph;
(2) The name of the person analyzing the seismograph
record;
(3) The exact location of the seismograph in relation to
the blast;
(4) The date and time of the reading; and
(5) The seismograph reading.
2. The permittee shall retain all records of blasting,
including seismograph reports, for at least three years. On request, the
permittee shall make these records available for inspection by the director division.
4VAC25-150-260. Erosion, sediment control and reclamation.
A. Applicability. Permittees shall meet the erosion and sediment control standards of this section whenever there is a ground disturbance for a gas, oil or geophysical operation. Permittees shall reclaim the land to the standards of this section after the ground-disturbing activities are complete and the land will not be used for further permitted activities.
B. Erosion and sediment control plan. Applicants for a permit shall submit an erosion and sediment control plan as part of their operations plan. The plan shall describe how erosion and sedimentation will be controlled and how reclamation will be achieved.
C. Erosion and sediment control standards. Whenever ground is disturbed for a gas, oil or geophysical operation, the following erosion and sediment control standards shall be met.
1. All trees, shrubs and other vegetation shall be cleared as necessary before any blasting, drilling, or other site construction, including road construction, begins.
a. Cleared vegetation shall be either removed from the site, properly stacked on the permitted site for later use, burned, or placed in a brush barrier if needed to control erosion and sediment control. Only that material necessary for the construction of the permitted site shall be cleared. When used as a brush barrier, the cleared vegetation shall be cut and windrowed below a disturbed area so that the brush barrier will effectively control sediment migration from the disturbed area. The material shall be placed in a compact and uniform manner within the brush barrier and not perpendicular to the brush barrier. Brush barriers shall be constructed so that any concentrated flow created by the barrier is released into adequately protected outlets and adequate channels. Large diameter trunks, limbs, and stumps that may render the brush barrier ineffective for sediment control shall not be placed in the brush barrier.
b. During construction of the project, topsoil, soil
sufficient to provide a suitable growth medium for permanent stabilization with
vegetation shall be segregated and stockpiled. Soil stockpiles shall be
stabilized used to stabilize the site in accordance with the
standards of subdivisions C 2 and C 3 of this section to prevent erosion and
sedimentation.
2. Except as provided for in subdivisions C 5 and C 12 c of this section, permanent or temporary stabilization measures shall be applied to denuded areas within 30 days of achievement of final grade on the site unless the area will be redisturbed within 30 days.
a. If no activity occurs on a site for a period of 30 consecutive days then stabilization measures shall be applied to denuded areas within seven days of the last day of the 30-day period.
b. Temporary stabilization measures shall be applied to denuded areas that may not be at final grade but will be left inactive for one year or less.
c. Permanent stabilization measures shall be applied to denuded areas that are to be left inactive for more than one year.
3. A permanent vegetative cover shall be established on denuded areas to achieve permanent stabilization on areas not otherwise permanently stabilized. Permanent vegetation shall not be considered established until a ground cover is uniform, mature enough to survive and will inhibit erosion.
4. Temporary sediment control structures such as basins, traps, berms or sediment barriers shall be constructed prior to beginning other ground-disturbing activity and shall be maintained until the site is stabilized.
5. Stabilization measures shall be applied to earthen structures such as sumps, diversions, dikes, berms and drainage windows within 30 days of installation.
6. Sediment basins.
a. Surface runoff from disturbed areas that is composed of flow from drainage areas greater than or equal to three acres shall be controlled by a sediment basin. The sediment basin shall be designed and constructed to accommodate the anticipated sediment loading from the ground-disturbing activity. The spillway or outfall system design shall take into account the total drainage area flowing through the disturbed area to be served by the basin.
b. If surface runoff that is composed of flow from other drainage areas is separately controlled by other erosion and sediment control measures, then the other drainage area is not considered when determining whether the three-acre limit has been reached and a sediment basin is required.
7. Cut and fill slopes shall be designed and constructed in a manner that will minimize erosion. No trees, shrubs, stumps or other woody material shall be placed in fill.
8. Concentrated runoff shall not flow down cut or fill slopes unless contained within an adequate temporary or permanent channel, flume or slope drain structure.
9. Whenever water seeps from a slope face, adequate drainage or other protection shall be provided.
10. All storm sewer inlets that are made operable during construction shall be protected so that sediment-laden water cannot enter the conveyance system without first being filtered or otherwise treated to remove sediment.
11. Before newly constructed stormwater conveyance channels or pipes are made operational, adequate outlet protection and any required temporary or permanent channel lining shall be installed in both the conveyance channel and receiving channel.
12. Live watercourses.
a. When any construction required for erosion and sediment control, reclamation or stormwater management must be performed in a live watercourse, precautions shall be taken to minimize encroachment, control sediment transport and stabilize the work area. Nonerodible material shall be used for the construction of causeways and cofferdams. Earthen fill may be used for these structures if armored by nonerodible cover materials.
b. When the same location in a live watercourse must be crossed by construction vehicles more than twice in any six-month period, a temporary stream crossing constructed of nonerodible material shall be provided.
c. The bed and banks of a watercourse shall be stabilized immediately after work in the watercourse is completed.
13. If more than 500 linear feet of trench is to be open at any one time on any continuous slope, ditchline barriers shall be installed at intervals no more than the distance in the following table and prior to entering watercourses or other bodies of water.
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Distance Barrier Spacing |
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Percent of Grade |
Spacing of Ditchline Barriers in Feet |
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3–5 |
135 |
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6–10 |
80 |
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11–15 |
60 |
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16+ |
40 |
14. Where construction vehicle access routes intersect a paved or public road, provisions, such as surfacing the road, shall be made to minimize the transport of sediment by vehicular tracking onto the paved surface. Where sediment is transported onto a paved or public road surface, the road surface shall be cleaned by the end of the day.
15. The design and construction or reconstruction of roads shall incorporate appropriate limits for grade, width, surface materials, surface drainage control, culvert placement, culvert size, and any other necessary design criteria required by the director to ensure control of erosion, sedimentation and runoff, and safety appropriate for their planned duration and use. This shall include, at a minimum, that roads are to be located, designed, constructed, reconstructed, used, maintained and reclaimed so as to:
a. Control or prevent erosion and siltation by vegetating or otherwise stabilizing all exposed surfaces in accordance with current, prudent engineering practices;
b. Control runoff to minimize downstream sedimentation and flooding; and
c. Use nonacid or nontoxic substances in road surfacing.
16. Unless approved by the director, all temporary erosion and sediment control measures shall be removed within 30 days after final site stabilization or after the temporary measures are no longer needed. Trapped sediment and the disturbed soil areas resulting from the disposition of temporary measures shall be permanently stabilized within the permitted area to prevent further erosion and sedimentation.
D. Final reclamation standards.
1. All equipment, structures or other facilities not required for monitoring the site or permanently marking an abandoned well or corehole shall be removed from the site, unless otherwise approved by the director.
2. Each pipeline abandoned in place shall be disconnected
from all sources of natural gas or produced fluids and purged. Each
gathering line abandoned in place, unless otherwise agreed to be removed under
a right-of-way or lease agreement, shall be disconnected from all sources and
supplies of natural gas and petroleum, purged of liquid hydrocarbons, depleted
to atmospheric pressure, and cut off three feet below ground surface, or at the
depth of the gathering line, whichever is less, and sealed at the ends. The
operator shall provide to the division documentation of the methods used, the
date and time the pipeline was purged and abandoned [ and copies
of any right of way or lease agreements that apply to the abandonment or
removal ].
3. If final stabilization measures are being applied to access roads or ground-disturbed pipeline rights-of-way, or if the rights-of-way will not be redisturbed for a period of 30 days, water bars shall be placed across them at 30-degree angles at the head of all pitched grades and at intervals no more than the distance in the following table:
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Spacing of Water Bars in Feet |
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3–5 |
135 |
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6–10 |
80 |
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11–15 |
60 |
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16+ |
40 |
4. The permittee shall notify the division when the site has been graded and seeded for final reclamation in accordance with subdivision C 3 of this section. Notice may be given orally or in writing. The vegetative cover shall be successfully maintained for a period of two years after notice has been given before the site is eligible for bond release.
5. If the land disturbed during gas, oil or geophysical
operations will not be reclaimed with permanent vegetative cover as provided
for in subsection C of this section, the permittee or applicant shall, in
the operations plan, request a variance to these reclamation standards and
propose alternate reclamation standards and an alternate schedule for bond
release.
E. The director may waive or modify any of the requirements of this section that are deemed inappropriate or too restrictive for site conditions. A permittee requesting a variance shall, in writing, document the need for the variance and describe the alternate measures or practices to be used. Specific variances allowed by the director shall become part of the operations plan. The director shall consider variance requests judiciously, keeping in mind both the need of the applicant to maximize cost effectiveness and the need to protect off-site properties and resources from damage.
4VAC25-150-280. Logs and surveys.
A. Each permittee drilling a well or corehole shall complete a driller's log, a gamma ray log or other log showing the top and bottom points of geologic formations and any other log required under this section. The driller's log shall state, at a minimum, the character, depth and thickness of geological formations encountered, including groundwater-bearing strata, coal seams, mineral beds and gas- or oil-bearing formations.
B. When a permittee or the director identifies that a well or corehole is to be drilled or deepened in an area of the Commonwealth which is known to be underlain by coal seams, the following shall be required:
1. The vertical location of coal seams in the borehole well
or corehole shall be determined and shown in the driller's log and gamma
ray or other log.
2. The horizontal location of the borehole well or
corehole in coal seams shall be determined through an inclination survey
from the surface to the lowest known coal seam. Each inclination survey shall
be conducted as follows:
a. The first survey point shall be taken at a depth not greater than the most shallow coal seam; and
b. Thereafter shot points shall be taken at each coal seam or at intervals of 200 feet, whichever is less, to the lowest known coal seam.
3. Prior to drilling any borehole into well or
corehole within 500 feet of a coal seam in which active mining is being
conducted within 500 feet of where the borehole will penetrate the seam where
workers are assigned or travel, as well as any connected sealed or gob areas,
or where a mine plan is on file with the Division of Mines, the
permittee shall conduct an inclination survey to determine whether the
deviation of the bore hole well or corehole exceeds one degree
from true vertical. If the borehole well or corehole is found to
exceed one degree from vertical, then the permittee shall:
a. Immediately cease operations;
b. Immediately notify the coal owner and the division;
c. Conduct a directional survey to drilled depth to determine
both horizontal and vertical location of the borehole well or
corehole; and
d. Unless granted a variance by the director, correct the borehole
well or corehole to within one degree of true vertical.
4. Except as provided for in subdivision B 3 of this section,
if the deviation of the borehole well or corehole exceeds one
degree from true vertical at any point between the surface and the lowest known
coal seam, then the permittee shall:
a. Correct the borehole well or corehole to
within one degree of true vertical; or
b. Conduct a directional survey to the lowest known coal seam
and notify the coal owner of the actual borehole well or corehole
location.
5. The director may grant a variance to the requirements of
subdivisions B 3 and B 4 of this section only after the permittee and coal
owners have jointly submitted a written request for a variance stating that a
directional survey or correction to the borehole well or corehole
is not needed to protect the safety of any person engaged in active coal mining
or to the environment.
6. If the director finds that the lack of assurance of the
horizontal location of the bore of a well or corehole to a known coal
seam poses a danger to persons engaged in active coal mining or the lack of
assurance poses a risk to the public safety or the environment, the director
may, until 30 days after a permittee has filed the completion report required
in 4VAC25-150-360, require that a directional survey be conducted by the
permittee.
7. The driller's log shall be updated on a daily basis. The driller's log and results of any other required survey shall be kept at the site until drilling and casing or plugging a dry hole or corehole are completed.
4VAC25-150-300. Pits.
A. General requirements.
1. Pits are to be temporary in nature and are to be reclaimed
when the operations using the pit are complete. All pits shall be reclaimed
within [ 90 180 ] days unless a variance
is requested and granted by the field inspector.
2. Pits may not be used as erosion and sediment control structures or stormwater management structures, and surface drainage may not be directed into a pit.
3. Pits shall have a properly installed and maintained liner or liners made of 10 mil or thicker high-density polyethylene or its equivalent.
B. Technical requirements.
1. 4. Pits shall be constructed of sufficient
size and shape to contain all fluids and maintain a two-foot freeboard.
2. Pits shall be lined in accordance with the requirements
for liners in subdivision A 3 of this section. If solids are not to be disposed
of in the pit, the permittee may request a variance to the liner
specifications.
C. B. Operational requirements.
1. The integrity of lined pits must be maintained until the pits are reclaimed or otherwise closed. Upon failure of the lining or pit, the operation shall be shut down until the liner and pit are repaired or rebuilt. The permittee shall notify the division, by the quickest available means, of any pit leak.
2. Motor oil and, to the extent practicable, crude oil shall be kept out of the pit. Oil shall be collected and disposed of properly. Litter and other solid waste shall be collected and disposed of properly and not thrown into the pit.
3. At the conclusion of drilling and completion operations or after a dry hole, well or corehole has been plugged, the pit shall be drained in a controlled manner and the fluids disposed of in accordance with 4VAC25-150-420. If the pit is to be used for disposal of solids, then the standards of 4VAC25-150-430 shall be met.
4VAC25-150-310. Tanks.
A. All tanks installed on or after September 25, 1991, shall be designed and constructed to contain the fluids to be stored in the tanks and prevent unauthorized discharge of fluids.
B. All tanks shall be maintained in good condition and repaired as needed to ensure the structural integrity of the tank.
C. Every permanent tank or battery of tanks shall be
surrounded by a have secondary containment achieved by
constructing a dike or firewall with a capacity of 1˝ 1-1/2
times the volume of the single tank, or largest tank in a battery of tanks
largest tank when plumbed at the top, or all tanks when plumbed at the
bottom, utilizing a double wall tank or another method approved by the division.
D. Dikes and firewalls shall be maintained in good condition, and the reservoir shall be kept free from brush, water, oil or other fluids.
E. Permittees shall inspect the structural integrity of tanks and tank installations, at a minimum, annually. The report of the annual inspection shall be maintained by the permittee for a minimum of three years and be submitted to the director upon request.
F. Load lines shall be properly constructed and operated on the permitted area.
4VAC25-150-340. Drilling fluids.
A. Operations plan requirements. Applicants for a permit shall provide, prior to commencing drilling, documentation that the water meets the requirements of subsection B of this section, and a general description of the additives and muds to be used in all stages of drilling. Providing that the requirement in 4VAC25-150-340 C is met, variations necessary because of field conditions may be made with prior approval of the director and shall be documented in the driller's log.
B. Water quality in drilling.
1. Before the water-protection string is set, permittees shall use one of the following sources of water in drilling:
a. Water that is from a water well or spring located on the drilling site; or
b. Conduct an analysis of groundwater within 500 feet of the drilling location, and use:
(1) Water which is of equal or better quality than the groundwater; or
(2) Water which can be treated to be of equal or better quality than the groundwater. A treatment plan must be included with the application if water is to be treated.
If, after a diligent search, a groundwater source (such as a
well or spring) cannot be found within 500 feet of the drilling location, the
applicant may use water meeting the parameters listed in the Department of
Environmental Quality's "Water Quality Criteria for Groundwater,"
[ 9VAC25-260-230 et seq. 9VAC25-280-70 ] The analysis shall
include, but is not limited to, the following items:
(1) Chlorides;
(2) Total dissolved solids;
(3) Hardness;
(4) Iron;
(5) Manganese;
(6) PH;
(7) Sodium; and
(8) Sulfate.
Drilling water analysis shall be taken within a one-year period preceding the drilling application.
2. After the water-protection string is set, permittees may use waters that do not meet the standards of subdivision B 1 of this section.
C. Drilling muds. No permittee may use an oil-based drilling fluid or other fluid which has the potential to cause acute or chronic adverse health effects on living organisms unless a variance has been approved by the director. Permittees must explain the need to use such materials and provide the material data safety sheets. In reviewing the request for the variance, the director shall consider the concentration of the material, the measures to be taken to control the risks, and the need to use the material. Permittees shall also identify what actions will be taken to ensure use of the additives will not cause a lessening of groundwater quality.
4VAC25-150-360. Drilling, completion and other reports.
A. Each permittee conducting drilling shall file, electronically
or on a form prescribed by the director, a drilling report within 30
90 days after a well reaches total depth.
B. Each permittee drilling a well shall file, electronically
or on a form prescribed by the director, a completion report within 30
90 days after the well is completed.
C. The permittee shall file the driller's log, the results of any other log or survey required to be run in accordance with this chapter or by the director, and the plat showing the actual location of the well with the drilling report, unless they have been filed earlier.
D. The permittee shall, within two years 90 days
of reaching total depth, file with the division the results of any gamma ray,
density, neutron and induction logs, or their equivalent, that have been
conducted on the wellbore in the normal course of activities that have not
previously been required to be filed.
4VAC25-150-380. Accidents Incidents, spills and
unpermitted discharges.
A. Accidents. Incidents. A permittee shall, by
the quickest available means, notify the director division in the
event of any unplanned off-site disturbance, fire, blowout, pit failure,
hydrogen sulfide release, unanticipated loss of drilling fluids, or other accident
incident resulting in serious personal injury or an actual or
potential imminent danger to a worker, the environment, or public
safety or welfare. The permittee shall take immediate action to abate
the actual or potential danger. The permittee shall submit a written or
electronic report within seven days of the incident containing:
1. A description of the incident and its cause;
2. The date, time and duration of the incident;
3. A description of the steps that have been taken to date; and
4. A description of the steps planned to be taken to prevent a
recurrence of the incident.; and
5. Other agencies notified.
B. On-site spills.
1. A permittee shall take all reasonable steps to prevent, minimize, or correct any spill or discharge of fluids on a permitted site which has a reasonable likelihood of adversely affecting human health or the environment. All actions shall be consistent with the requirements of an abatement plan, if any has been set, in a notice of violation or closure, emergency or other order issued by the director.
2. A permittee shall orally report on-site spills or unpermitted discharges of fluids which are not required to be reported in subsection A of this section to the division within 24 hours. The oral report shall provide all available details of the incident, including any adverse effects on any person or the environment. A written report shall be submitted within seven days of the spill or unpermitted discharge. The written report shall contain:
a. A description of the incident and its cause;
b. The period of release, including exact dates and times;
c. A description of the steps to date; and
d. A description of the steps to be taken to prevent a recurrence of the release.
C. Off-site spills. Permittees shall submit a written report of any spill or unpermitted discharge of fluids that originates off of a permitted site with the monthly report under 4VAC25-150-210. The written report shall contain:
1. A listing of all agencies contacted about the spill or unpermitted discharge; and
2. All actions taken to contain, clean up or mitigate the spill or unpermitted discharge.
4VAC25-150-390. Shut-in wells.
A. If a well is shut-in or otherwise not produced for a period of 12 consecutive months, the permittee shall measure the shut-in pressure on the production string or strings and report such pressures to the division annually. If the well is producing on the backside or otherwise through the casing, the permittee shall measure the shut-in pressure on the annular space.
B. A report of the pressure measurements on the
nonproducing well shall be maintained and reported to the director
annually by the permittee for a minimum maximum period of three
two years and be submitted to the director upon request.
C. Should the well remain in a nonproducing status for a
period of two years, the permittee shall submit [ either a
well plugging plan or ] a [ plan for ] future
well production [ plan ] to the director. A
nonproducing well shall not remain unplugged for more than a three-year period
unless approved by the director.
4VAC25-150-420. Disposal of pit and produced fluids.
A. Applicability. All fluids from a well, pipeline or corehole shall be handled in a properly constructed pit, tank or other type of container approved by the director.
A permittee shall not dispose of fluids from a well, pipeline or corehole until the director has approved the permittee's plan for permanent disposal of the fluids. Temporary storage of pit or produced fluids is allowed with the approval of the director. Other fluids shall be disposed of in accordance with the operations plan approved by the director.
B. Application and plan. The permittee shall submit an application for either on-site or off-site permanent disposal of fluids on a form prescribed by the director. Maps and a narrative describing the method to be used for permanent disposal of fluids must accompany the application if the permittee proposes to land apply any fluids on the permitted site. The application, maps, and narrative shall become part of the permittee's operations plan.
C. Removal of free fluids. Fluids shall be removed from the pit to the extent practical so as to leave no free fluids. In the event that there are no free fluids for removal, the permittee shall report this on the form provided by the director.
D. On-site disposal. The following standards for on-site land application of fluids shall be met:
1. Fluids to be land-applied shall meet the parameters listed
in the Department of Environmental Quality's "Water Quality Criteria for
Groundwater" [ (9VAC25-260-230 et seq.). (9VAC25-280-70 ]
following criteria:
Acidity: <alkalinity
Alkalinity: >acidity
Chlorides: <5,000 mg/l
Iron: <7 mg/l
Manganese: <4 mg/l
Oil and Grease: < 15 mg/l
pH: 6-9 Standard Units
Sodium Balance: SAR of 8-12
2. Land application of fluids shall be confined to the permitted area.
3. Fluids shall be applied in a manner which will not cause erosion or runoff. The permittee shall take into account site conditions such as slope, soils and vegetation when determining the rate and volume of land application on each site. As part of the application narrative, the permittee shall show the calculations used to determine the maximum rate of application for each site.
4. Fluid application shall not be conducted when the ground is saturated, snow-covered or frozen.
5. The following buffer zones shall be maintained unless a variance has been granted by the director:
a. Fluid shall not be applied closer than 25 feet from highways or property lines not included in the acreage shown in the permit.
b. Fluid shall not be applied closer than 50 feet from surface watercourses, wetlands, natural rock outcrops, or sinkholes.
c. Fluid shall not be applied closer than 100 feet from water supply wells or springs.
6. The permittee shall monitor vegetation for two years after the last fluid has been applied to a site. If any adverse effects are found, the permittee shall report the adverse effects in writing to the division.
7. The director may require monitoring of groundwater quality on sites used for land application of fluids to determine if the groundwater has been degraded.
E. Off-site disposal of fluids.
1. Each permittee using an off-site facility for disposal of fluids shall submit:
a. A copy of a valid permit for the disposal facility to be used; and
b. Documentation that the facility will accept the fluids.
2. Each permittee using an off-site facility for disposal of fluids shall use a waste-tracking system to document the movement of fluids off of a permitted site to their final disposition. Records compiled by this system shall be reported to the division annually and available for inspection on request. Such records shall be retained until such time the injection well is reclaimed and has passed bond release.
4VAC25-150-460. Identifying plugged wells and coreholes; plugging affidavit.
A. Abandoned wells and coreholes shall be permanently marked in a manner as follows:
1. The marker shall extend not less than 30 inches above the surface and enough below the surface to make the marker permanent.
2. The marker shall indicate the permittee's name, the well name, the permit number and date of plugging.
B. A permittee may apply for a variance from the director to use alternate permanent markers. Such alternate markers shall provide sufficient information for locating the abandoned well or corehole. Provisions shall also be made to provide for the physical detection of the abandoned well or corehole from the surface by magnetic or other means including a certified map with the utilization of current GPS surveys.
C. When any well or corehole has been plugged or replugged in accordance with 4VAC25-150-435, two persons, experienced in plugging wells or coreholes, who participated in the plugging of a well or corehole, shall complete the plugging affidavit designated by the director, setting forth the time and manner in which the well or corehole was plugged and filled, and the permanent marker was placed.
D. One copy of the plugging affidavit shall be retained by
the permittee, one shall be mailed to any coal owner or operator on the tract
where the well or corehole is located, and one shall be filed with the division
within 30 90 days after the day the well was plugged.
Part II
Conventional Gas and Oil Wells and Class II Injection Wells
4VAC25-150-490. Applicability, conventional gas and oil wells and Class II injection wells.
A. Part II of this chapter sets forth requirements unique to conventional gas and oil wells and wells classified as Class II injection wells by the United States, Environmental Protection Agency under 40 CFR Part 146, Section 146.5.
B. Permittees must comply with the standards of general
applicability in Part I of this chapter and with the standards for conventional
gas and oil and Class II injection wells in this part, except that whenever the
Environmental Protection Agency imposes a requirement under the Underground
Injection Control (UIC) Program, 40 CFR Part 146, Sections 146.3, 146.4, 146.5,
146.6, 146.7, 146.8, 146.22 and 146.23 that governs an activity also governed
by this chapter, the Environmental Protection Agency requirement shall control and
become part of the permit issued under this chapter.
C. An application for a permit for a Class II injection well which has not been previously drilled under a permit from the director shall be submitted as an application for a new permit. An application for a permit for conversion of a permitted gas or oil well to a Class II injection well shall be submitted as an application for a permit modification.
D. The director shall not issue a permit for a Class II injection well until after the Environmental Protection Agency has issued its permit for the injection well.
4VAC25-150-500. Application for a permit, conventional well or Class II injection well.
A. In addition to the requirements of 4VAC25-150-80 or 4VAC25-150-110, every application for a permit or permit modification for a conventional gas or oil well or a Class II injection well shall contain:
1. The approximate depth to which the well is proposed to be drilled or deepened, or the actual depth to which the well has been drilled;
2. The approximate depth and thickness, if applicable, of all known coal seams, known groundwater-bearing strata, and other known gas or oil strata between the surface and the depth to which the well is proposed to be drilled;
3. If casing or tubing is proposed to be or has been set, a description of the entire casing program, including the size of each string of pipe, the starting point and depth to which each string is to be or has been set, and the extent to which each string is to be or has been cemented; and
4. If the proposed work is for a Class II injection well, a copy of either the permit issued by, or the permit application filed with the Environmental Protection Agency under the Underground Injection Control Program.
5. An explanation of the procedures to be followed to protect the safety of persons working in and around an underground coal mine for any conventional well or Class II injection well to be drilled within 200 feet of areas where workers are assigned or travel, as well as any connected sealed or gob areas, or where a one-year mine plan is on file with the Division of Mines; which shall, at a minimum, require that notice of such drilling be given by the permittee to the mine operator and the Chief of the Division of Mines at least 10 working days prior to drilling.
B. In addition to the requirements of 4VAC25-150-80 and 4VAC25-150-110, every application for a permit or permit modification for a conventional gas or oil well or a Class II injection well may contain, if the proposed work is to drill, redrill or deepen a well, a plan showing the proposed manner of plugging the well immediately after drilling if the proposed well work is unsuccessful.
4VAC25-150-510. Plats, conventional wells or Class II injection wells.
A. In addition to the requirements of 4VAC25-150-90, every plat for a conventional gas or oil well shall show:
1. The boundaries of any drilling unit established by the board around the subject well;
2. The boundaries and acreage of the tract on which the well is located or is to be located;
3. The boundaries and acreage of all other tracts within one-half of the distance specified in § 45.1-361.17 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;
4. Surface owners on the tract to be drilled and on all other tracts within the unit where the surface of the earth is to be disturbed;
5. All gas, oil or royalty owners on any tract located within one half of the distance specified in § 45.1-361.17 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;
6. Coal owners and mineral owners on the tract to be drilled and on all other tracts located within 500 feet of the subject well location;
7. Coal operators who have registered operations plans with the department for activities located on the tract to be drilled, or who have applied for or obtained a coal mine license, coal surface mine permit or a coal exploration notice or permit from the department with respect to all tracts within 500 feet of a proposed gas or oil well;
8. Any inhabited building, highway, railroad, stream, permitted surface mine or permitted mine opening within 500 feet of the proposed well; and
9. If the plat is for an enhanced oil recovery injection well, any other well within 2,500 feet of the proposed or actual well location, which shall be presumed to embrace the entire area to be affected by an enhanced oil recovery injection well in the absence of a board order establishing units in the target pool of a different size or configuration.
B. If the well location is underlain by known coal seams, or if required by the director, the well plat shall locate the well and two permanent points or landmarks with reference to the mine coordinate system if one has been established for the area of the well location, and shall in any event show all other wells, surface mines and mine openings within the scope of the plat.
4VAC25-150-520. Setback restrictions, conventional wells or Class II injection wells.
No permit shall be issued for any well to be drilled closer than 200 feet from any inhabited building unless site conditions as approved by the director warrant the permission of a lesser distance and there exists a lease or agreement between the operator and the owner of the inhabited building. A copy of the lease or agreement shall accompany the application for a permit.
4VAC25-150-530. Casing requirements for conventional gas or oil wells.
A. Water-protection string.
1. Except as provided in subdivision A 5 of this section, the permittee shall set a water-protection string to a point at least 300 feet below the surface or 50 feet below the deepest known groundwater horizon, whichever is deeper, circulated and cemented in to the surface. If the cement does not return to the surface, every reasonable attempt shall be made to fill the annular space by introducing cement from the surface.
2. The operator shall test or require the cementing company to test the cement mixing water for pH and temperature prior to mixing the cement and to record the results on the cementing ticket.
3. After the cement is placed, the operator shall wait a minimum of eight hours and allow the cement to achieve a calculated compressive strength of 500 psi before drilling, unless the director approves a shorter period of time. The wait-on-cement (WOC) time shall be recorded within the records kept at the drilling rig while drilling is taking place.
4. When requested by the director, the operator shall submit copies of cement tickets or other documents that indicate the above specifications have been followed.
5. A coal-protection string may also serve as a water-protection string.
B. Coal-protection strings.
1. When any well penetrates coal seams that have not been mined out, the permittee shall, except as provided in subdivisions B 2 and B 3 of this section, set a coal-protection string. The coal-protection string shall exclude all fluids, oil, gas and gas pressure except that which is naturally present in each coal seam. The coal-protection string shall also exclude all injected material or disposed waste from the coal seams and the wellbore. The string of casing shall be set to a point at least 50 feet below the lowest coal seam, or as provided in subdivision B 3 of this section, and shall be circulated and cemented from that point to the surface or to a point not less than 50 feet into the water-protection string or strings which are cemented to the surface.
2. For good cause shown, either before or after the permit is issued, when the procedure specified in subdivision B 1 is demonstrated by the permittee as not practical, the director may approve a casing program involving the cementing of a coal-protection string in multiple stages, or the cementing of two or more coal-protection strings, or the use of other alternative casing procedures. The director may approve the program provided he is satisfied that the result will be operationally equivalent to compliance with the provisions of subdivision B 1 of this section for the purpose of permitting the subsequent safe mining through of the well or otherwise protecting the coal seams as required by this section. In the use of multiple coal-protection strings, each string below the topmost string shall be cemented at least 50 feet into the next higher string or strings that are cemented to the surface and be verified by a cement top log.
3. Depth of coal-protection strings:
a. A coal-protection string shall be set to the top of the red shales in any area underlain by them unless, on a showing by the permittee in the permit application, the director has approved the casing point of the coal-protection string at some depth less than the top of the red shales. In such event, the permittee shall conduct a gamma ray/density log survey on an expanded scale to verify whether the well penetrates any coal seam in the uncased interval between the bottom of the coal-protection string as approved and the top of the red shales.
b. If an unanticipated coal seam or seams are discovered in the uncased interval, the permittee shall report the discovery in writing to the director. The permittee shall cement the next string of casing, whether a part of the intermediate string or the production string, in the applicable manner provided in this section for coal-protection strings, from a point at least 50 feet below the lowest coal seam so discovered to a point at least 50 feet above the highest coal seam so discovered.
c. The gamma ray/density log survey shall be filed with the director at the same time the driller's log is filed under 4VAC25-150-360.
d. When the director believes, after reviewing documentation submitted by the permittee, that the total drilling in any particular area has verified the deepest coal seam higher than the red shales, so that further gamma ray/density logs on an expanded scale are superfluous for the area, he may waive the constructing of a coal-protection string or the conducting of such surveys deeper than 100 feet below the verified depth of the deepest coal seam.
C. Coal-protection strings of wells drilled prior to July 1, 1982. In the case of wells drilled prior to July 1, 1982, through coal seams without coal-protection strings substantially as prescribed in subsection B of this section, the permittee shall retain such coal-protection strings as were set. During the life of the well, the permittee shall, consistent with a plan approved by the director, keep the annular spaces between the various strings of casing adjacent to coal seams open to the extent possible, and the top ends of all such strings shall be provided with casing heads, or such other approved devices as will permit the free passage of gas or oil and prevent filling of the annular spaces with dirt or debris.
D. Producing from more than one stratum. The casing program for any well designed or completed to produce from more than one stratum shall be designed in accordance with the appropriate standard practices of the industry.
E. Casing through voids.
1. When a well is drilled through a void, the hole shall be
drilled at least 30 feet below the void, the annular space shall be cemented
from the base of the casing up to the void and to the surface from the top
of the void, and every reasonable attempt shall be made to fill the
annular space from the top of the void to the surface, or it shall be
cemented at least 50 feet into the next higher string or strings of casing that
are cemented to the surface and be verified by a cement top log.
2. For good cause shown, the director may approve alternative casing procedures proposed by the permittee, provided that the director is satisfied that the alternative casing procedures are operationally equivalent to the requirements imposed by subdivision E 1 of this section.
3. For good cause shown, the director may impose special requirements on the permittee to prevent communication between two or more voids.
F. A well penetrating a mine other than a coal mine. In the event that a permittee has requested to drill a well in such a location that it would penetrate any active mine other than a coal mine, the director shall approve the safety precautions to be followed by the permittee prior to the commencement of activity.
G. Reporting of lost circulation zones. The permittee shall report to the director as soon as possible when an unanticipated void or groundwater horizon is encountered that results in lost circulation during drilling. The permittee shall take every necessary action to protect the lost circulation zone.
Part III
Coalbed Methane Gas Wells
4VAC25-150-550. Applicability, coalbed methane wells.
Part III of this chapter sets forth requirements unique to coalbed methane gas wells. Permittees must comply with the standards of general applicability in Part I of this chapter and with the standards for coalbed methane gas wells in this part.
4VAC25-150-560. Application for a permit, coalbed methane well operations.
A. In addition to the requirements of 4VAC25-150-80 or 4VAC25-150-110, every application for a permit or permit modification for a coalbed methane gas well shall contain:
1. An identification of the category of owner or operator, as listed in § 45.1-361.30 A of the Code of Virginia, that each person notified of the application belongs to;
2. The signed consent required in § 45.1-361.29 of the Code of Virginia;
3. Proof of conformance with any mine development plan in the vicinity of the proposed coalbed methane gas well, when the Virginia Gas and Oil Board has ordered such conformance;
4. The approximate depth to which the well is proposed to be drilled or deepened, or the actual depth if the well has been drilled;
5. The approximate depth and thickness, if applicable, of all known coal seams, known groundwater-bearing strata, and other known gas or oil strata between the surface and the depth to which the well is proposed to be drilled;
6. If casing or tubing is proposed to be or has been set, a description of the entire casing program, including the size of each string of pipe, the starting point and depth to which each string is to be or has been set, and the extent to which each string is to be or has been cemented together with any request for a variance under 4VAC25-150-580;
7. An explanation of the procedures to be followed to protect
the safety of persons working in and around an underground coal mine for
any coalbed methane gas well to be drilled within 200 feet of or into any
area of an active underground coal mine areas where workers are assigned
or travel, as well as any connected sealed or gob areas, or where a one-year
mine plan is on file with the Division of Mines; which shall, at a minimum,
require that notice of such drilling be given by the permittee to the mine
operator and the Chief of the Division of Mines at least two 10
working days prior to drilling within 200 feet of or into the mine; and
8. If the proposed work is for a Class II injection well, a copy of the Environmental Protection Agency permit, or a copy of the application filed with the Environmental Protection Agency under the Underground Injection Control Program.
B. In addition to the requirements of 4VAC25-150-80 or 4VAC25-150-110, every application for a permit or permit modification for a coalbed methane well or a Class II injection well may contain, if the proposed work is to drill, redrill or deepen a well, a plan showing the proposed manner of plugging the well immediately after drilling if the proposed well work is unsuccessful so that the well must be plugged and abandoned.
4VAC25-150-590. Plats, coalbed methane wells.
A. In addition to the requirements of 4VAC25-150-90, every plat for a coalbed methane gas well shall show:
1. Boundaries and acreage of any drilling unit established by the board around the subject well;
2. Boundaries and acreage of the tract on which the well is located or is to be located;
3. Boundaries and acreage of all other tracts within one-half of the distance specified in § 45.1-361.17 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;
4. Surface owners on the tract to be drilled and on all other tracts within the unit where the surface of the earth is to be disturbed;
5. All gas, oil or royalty owners on any tract located within one-half of the distance specified in § 45.1-361.17 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;
6. Coal owners and mineral owners on the tract to be drilled and on all other tracts located within 750 feet of the subject well location;
7. Coal operators who have registered operations plans with the department for activities located on the tract to be drilled, or who have applied for or obtained a coal mine license, coal surface mine permit or a coal exploration notice or permit from the department with respect to all tracts within 750 feet of a proposed gas or oil well; and
8. Any inhabited building, highway, railroad, stream, permitted surface mine or permitted mine opening within 500 feet of the proposed well.
B. The well plat shall locate the well and two permanent points or landmarks with reference to the mine coordinate system if one has been established for the area of the well location, and shall show all other wells within the scope of the plat.
4VAC25-150-600. Setback restrictions, coalbed methane wells.
No permit shall be issued for any well to be drilled closer than 200 feet from any inhabited building, unless site conditions as approved by the director warrant the permission of a lesser distance, and there exists a lease or agreement between the operator and the owner of the inhabited building. A copy of the lease or agreement shall accompany the application for a permit.
4VAC25-150-610. Casing requirements for coalbed methane gas wells.
A. Water protection string.
1. Except as provided in subdivision A 5 of this section, the
permittee shall set a water-protection string set to a point at least 300 feet
below the surface or 50 feet below the lowest deepest known
groundwater horizon, whichever is deeper, circulated and cemented to the
surface. If cement does not return to the surface, every reasonable effort
shall be made to fill the annular space by introducing cement from the surface.
2. The operator shall test or require the cementing company to test the cement mixing water for pH and temperature prior to mixing the cement and to record the results on the cementing ticket.
3. After the cement is placed, the operator shall wait a minimum of eight hours and allow the cement to achieve a calculated compressive strength of 500 psi before drilling, unless the director approves a shorter period of time. The wait-on-cement (WOC) time shall be recorded within the records kept at the drilling rig while drilling is taking place.
4. When requested by the director, the operator shall submit copies of cement tickets or other documents that indicate the above specifications have been followed.
5. A coal-protection string may also serve as a water protection string.
B. Coal protection strings.
1. When any well penetrates coal seams that have not been mined out, the permittee shall, except as provided in subdivisions B 2 and B 3 of this section, set a coal-protection string. The coal-protection string shall exclude all fluids, oil, gas, and gas pressure, except that which is naturally present in each coal seam. The coal-protection string shall also exclude all injected material or disposed waste from the coal seams or the wellbore. The string of casing shall be set to a point at least 50 feet below the lowest coal seam, or as provided in subdivision B 3 of this section, and shall be circulated and cemented from that point to the surface, or to a point not less than 50 feet into the water-protection string or strings which are cemented to the surface.
2. For good cause shown, either before or after the permit is issued, when the procedure specified in subdivision B 1 is demonstrated by the permittee as not practical, the director may approve a casing program involving:
a. The cementing of a coal-protection string in multiple stages;
b. The cementing of two or more coal-protection strings; or
c. The use of other alternative casing procedures.
3. The director may approve the program, provided he is satisfied that the result will be operationally equivalent to compliance with the provisions of subdivision B 1 of this section for the purpose of permitting the subsequent safe mining through the well or otherwise protecting the coal seams as required by this section. In the use of multiple coal-protection strings, each string below the topmost string shall be cemented at least 50 feet into the next higher string or strings that are cemented to the surface and be verified by a cement top log.
4. Depth of coal-protection strings.
a. A coal-protection string shall be set to the top of the red shales in any area underlain by them unless, on a showing by the permittee in the permit application, the director has approved the casing point of the coal-protection string at some depth less than the top of the red shales. In such event, the permittee shall conduct a gamma-ray/density log survey on an expanded scale to verify whether the well penetrates any coal seam in the uncased interval between the bottom of the coal-protection string as approved and the top of the red shales.
b. If an unanticipated coal seam or seams are discovered in the uncased interval, the permittee shall report the discovery in writing to the director. The permittee shall cement the next string of casing, whether a part of the intermediate string or the production string, in the applicable manner provided in this section for coal-protection strings, from a point at least 50 feet below the lowest coal seam so discovered to a point at least 50 feet above the highest coal seam so discovered.
c. The gamma-ray/density log survey shall be filed with the director at the same time the driller's log is filed under 4VAC25-150-360.
d. When the director believes, after reviewing documentation submitted by the permittee, that the total drilling in any particular area has verified the deepest coal seam higher than the red shales, so that further gamma-ray/density logs on an expanded scale are superfluous for the area, he may waive the constructing of a coal-protection string or the conducting of such surveys deeper than 100 feet below the verified depth of the deepest coal seam.
C. Coal-protection strings of wells drilled prior to July 1, 1982. In the case of wells drilled prior to July 1, 1982, through coal seams without coal-protection strings as prescribed in subsection B of this section, the permittee shall retain such coal-protection strings as were set. During the life of the well, the permittee shall, consistent with a plan approved by the director, keep the annular spaces between the various strings of casing adjacent to coal seams open to the extent possible, and the top ends of all such strings shall be provided with casing heads, or such other approved devices as will permit the free passage of gas or oil and prevent filling of the annular spaces with dirt or debris.
D. Producing from more than one stratum. The casing program for any well designed or completed to produce from more than one stratum shall be designed in accordance with the appropriate standard practices of the industry.
E. Casing through voids.
1. When a well is drilled through a void, the hole shall be
drilled at least 30 feet below the void. The annular space shall be cemented
from the base of the casing up to the void, and to the surface from the top
of the void every reasonable attempt shall be made to fill up the
annular space from the top of the void to the surface; or it shall be
cemented at least 50 feet into the next higher string or strings of casing that
are cemented to the surface, and shall be verified by a cement top log.
2. For good cause shown, the director may approve alternate casing procedures proposed by the permittee, provided that the director is satisfied that the alternative casing procedures are operationally equivalent to the requirements imposed by subdivision E 1 of this section.
3. For good cause shown, the director may impose special requirements on the permittee to prevent communication between two or more voids.
F. A well penetrating a mine other than a coal mine. In the event that a permittee has requested to drill a well in such a location that it would penetrate any active mine other than a coal mine, the director shall approve the safety precautions to be followed by the permittee prior to the commencement of activity.
G. Production casing.
1. Unless otherwise granted in a variance from the director:
a. For coalbed methane gas wells with cased completions and cased/open hole completions, production casing shall be set and cemented from the bottom of the casing to the surface or to a point not less than 50 feet into the lowest coal-protection or water-protection string or strings which are cemented to the surface.
b. For coalbed methane gas wells with open hole completions, the base of the casing shall be set to not more than 100 feet above the uppermost coalbed which is to be completed open hole. The casing shall be cemented from the bottom of the casing to the surface or to a point not less than 50 feet into the lowest coal-protection or water-protection string or strings which are cemented to the surface.
2. A coal-protection string may also serve as production casing.
H. Reporting of lost circulation zones. The permittee shall report to the director as soon as possible when an unanticipated void or groundwater horizon is encountered that results in lost circulation during drilling. The permittee shall take every necessary action to protect the lost circulation zone.
4VAC25-150-620. Coalbed methane gas wellhead equipment.
Wellhead equipment and facilities installed on any gob well
or on any coalbed methane gas well subject to the requirements of §§
45.1-161.121 and 45.1-161.292 of the Code of Virginia addressing mining near or
through a well shall include a safety precaution plan submitted to the
director for approval. Such plans shall include, but are shall
not be limited to, flame arrestors, back-pressure systems,
pressure-relief systems, vent systems and fire-fighting equipment. The director
may require additional safety precautions or equipment to be installed
on a case-by-case basis.
4VAC25-150-630. Report of produced waters, coalbed methane wells.
All coalbed methane gas well operators are required to submit monthly reports of total produced waters withdrawn from coalbed methane gas wells, in barrels, on a well-by-well basis, with the monthly report submitted under 4VAC25-150-210 of this chapter. The report shall show monthly produced water withdrawals and cumulative produced water withdrawals. Such reports shall be available for inspection upon request and maintained electronically or by hard copy until the well is abandoned and reclaimed.
4VAC25-150-650. Abandonment through conversion Conversion
of a coalbed methane well to a vertical ventilation hole.
A permittee wishing to abandon convert a
coalbed methane gas well as to a vertical ventilation hole shall first
obtain approval from the Chief of the Division of Mines and submit an
application a written request to the division for a permit modification
which includes approval from the chief of the Division of Mines release.
The director shall consult with the chief, or his designated agent, before
approving permit release.
Part IV
Ground-Disturbing Geophysical Exploration
4VAC25-150-660. Applicability, ground-disturbing geophysical activity.
Part IV (4VAC25-150-660 et seq.) of this chapter sets forth requirements unique to ground-disturbing geophysical exploration.
4VAC25-150-670. Application for a permit, geophysical activity or core holes.
A. In accordance with 4VAC25-150-80 and 4VAC25-150-110, a permit shall be required for ground-disturbing geophysical exploration.
B. In addition to the requirements of 4VAC25-150-80 or 4VAC25-150-110, every application for a corehole permit or permit modification under this part shall contain:
1. The approximate depth to which the corehole is proposed to be drilled or deepened, or the actual depth if the corehole has been drilled;
2. The approximate depth and thickness, if applicable, of all known coal seams, known groundwater-bearing strata, and other known gas or oil strata between the surface and the depth to which the corehole is proposed to be drilled;
3. If casing is proposed to be set, the entire casing program,
including the diameter of each string of casing, the starting point and depth
to which each string is to be set, whether or not the casing is to remain in
the hole after the completion of drilling, and the extent to which each string
is to be cemented, if applicable; and
4. A plan which shows the proposed manner of plugging or
replugging the corehole.; and
5. An explanation of the procedures to be followed to protect the safety of persons working in and around an underground coal mine for any corehole to be drilled within 200 feet of areas where workers are assigned or travel, as well as any connected sealed or gob areas, or where a one-year mine plan is on file with the Division of Mines. Such procedures shall, at a minimum, require that notice of such drilling be given by the permittee to the mine operator and the Chief of the Division of Mines at least 10 working days prior to drilling.
4VAC25-150-680. Plats, core holes.
A. In addition to the requirements of 4VAC25-150-90, every plat for a corehole shall show:
1. The boundaries of the tract on which the corehole is located or is to be located;
2. Surface owners on the tract to be drilled and surface owners on the tracts where the surface is to be disturbed;
3. Coal owners and mineral owners on the tract to be drilled;
4. Coal operators who have registered operations plans with the department for activities located on the tract to be drilled; and
5. Any inhabited building, highway, railroad, stream, permitted surface mine or permitted mine opening within 500 feet of the proposed corehole.
B. If the corehole location is underlain by known coal seams, the plat shall locate the corehole and two permanent points or landmarks with reference to the mine coordinate system if one has been established for the area of the corehole location, and shall in any event show all other wells within the scope of the plat.
4VAC25-150-690. Operations plans, core holes.
In addition to the requirements of 4VAC25-150-100, every operations plan for a corehole shall describe the measures to be followed to protect water quality during the drilling, and the measures to be followed to protect any voids encountered during drilling.
4VAC25-150-700. Setback restrictions, core holes.
No permit shall be issued for any corehole to be drilled closer than 200 feet from an inhabited building, unless site conditions as approved by the director warrant the permission of a lesser distance, and there exists a lease or agreement between the operator and the owner of the inhabited building. A copy of the lease or agreement shall accompany the application for a permit.
4VAC25-150-711. Voids and lost circular circulation
zones.
A. Casing through voids.
1. When a corehole is drilled through a void, the hole shall
be drilled at least 30 feet below the void. The annular space shall be cemented
from the base of the casing up to the void and to the surface from the top
of the void every reasonable attempt shall be made to fill the annular
space from the top of the void to the surface; or it shall be cemented at
least 50 feet into the next higher string or strings of casing that are
cemented to the surface and be verified by a cement top log.
2. For good cause shown, the director may approve alternate casing procedures proposed by the permittee, provided that the director is satisfied that the alternative casing procedures are operationally equivalent to the requirements imposed by this section.
3. For good cause shown, the director may impose special requirements on the permittee to prevent communication between two or more voids.
B. Reporting of lost circulation zones. The permittee shall report to the director as soon as possible when an unanticipated void or groundwater horizon is encountered that results in lost circulation during drilling. The permittee shall take every necessary action to protect the lost circulation zone.
Part V
Gathering Pipelines
4VAC25-150-720. Applicability, gathering pipelines.
A. Part V (4VAC25-150-720 et seq.) of this chapter sets forth requirements unique to gathering pipelines. Permittees must comply with the standards for gathering pipelines in this part and the following standards in Part I:
1. All of Article 1, "General Information"; except 4VAC25-150-50, "Gas or oil in holes not permitted as a gas or oil well";
2. All of Article 2, "Permitting"; except 4VAC25-150-90, "Plats";
3. All of the sections in Article 3, "Enforcement";
4. 4VAC25-150-220, "Annual reports,"; of Article 4, "Reporting";
5. 4VAC25-150-230, 4VAC25-150-240, 4VAC25-150-250, 4VAC25-150-260, 4VAC25-150-270, 4VAC25-150-310, 4VAC25-150-350, 4VAC25-150-380, 4VAC25-150-410, 4VAC25-150-420, and 4VAC25-150-430 of Article 5, "Technical Standards"; and
6. 4VAC25-150-470, "Release of bond,"; of Article 6,
"Plugging and Abandonment.";.
B. A permit shall be required for installation and operation of every gathering pipeline and associated structures for the movement of gas or oil production from the wellhead to a previously permitted gathering line, a transmission or other line regulated by the United States Department of Transportation or the State Corporation Commission, to the first point of sale, or for oil, to a temporary storage facility for future transportation by a method other than a gathering pipeline.
C. Each gathering pipeline or gathering pipeline system may be permitted separately from gas or oil wells or may be included in the permit for the well being served by the pipeline.
4VAC25-150-730. General requirements for gathering pipelines.
A. Gathering pipelines shall be installed to be compatible with other uses of the area.
B. No permit shall be issued for a gathering pipeline to be
installed closer than 50 100 feet from any inhabited building or
railway, unless site conditions as approved by the director warrant the use
of a lesser distance and there exists a lease or agreement between the operator,
the inhabitants of the building and the owner of the inhabited building or
railway. A copy of the lease or agreement shall accompany the application
for a permit.
C. Materials used in gathering pipelines shall be able to withstand anticipated conditions. At a minimum this shall include:
1. All plastic gathering pipeline connections shall be fused, not coupled.
2. All buried gathering pipelines shall be detectable by magnetic or other remote means from the surface.
D. All new gathering pipelines shall be tested to maintain a minimum of 110% of anticipated pressure prior to being placed into service.
E. All gathering pipelines shall be maintained in good operating condition at all times.
4VAC25-150-740. Operations plans for gathering pipelines.
A. For a gathering pipeline, the operations plan shall be in a format approved by, or on a form prescribed by, the director.
B. On a form prescribed by the director, the operator shall indicate how risks to the public safety or to the site and adjacent lands are to be managed, and shall provide a short narrative, if pertinent.
4VAC25-150-750. Inspections for gathering pipelines.
Gathering pipelines shall be visually inspected annually by the permittee. The results of each annual inspection shall be maintained by the permittee for a minimum of three years and be submitted to the director upon request.
VA.R. Doc. No. R08-1318; Filed September 11, 2012, 9:15 a.m.
Title of Regulation: 4VAC25-160. Virginia Gas and Oil Board Regulations (amending 4VAC25-160-10, 4VAC25-160-30 through 4VAC25-160-70, 4VAC25-160-130, 4VAC25-160-190, 4VAC25-160-200).
Statutory Authority: § 45.1-361.15 of the Code of Virginia.
Effective Date: November 8, 2012.
Agency Contact: Michael Skiffington, Regulatory Coordinator, Department of Mines, Minerals and Energy, 1100 Bank Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TTY (800) 828-1120, or email mike.skiffington@dmme.virginia.gov.
Summary:
As a result of periodic review, the Department of Mines, Minerals and Energy and the Virginia Gas and Oil Board are amending 4VAC25-160, Virginia Gas and Oil Board Regulations, to make technical corrections, improve clarity, increase efficiency, and restore consistency with other chapters. Two symbols have been updated for consistency with current industry usage and available CAD technology.
Two minor changes were made since publication of the proposed regulation. One clarifies that the fee for filing pooling orders before the board is due for each order. The second deletes a requirement that resource owners in an area around a proposed well notify the board "by certified mail" that they wish to receive a copy of the pooling application. Mail and phone notice will suffice.
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.
4VAC25-160-10. Definitions.
The following words and terms, when used in this
chapter, shall have the following meanings, unless the context
clearly indicates otherwise:
"Act" means the Virginia Gas and Oil Act of 1990, Chapter 22.1 (§ 45.1-361.1 et seq.) of Title 45.1 of the Code of Virginia.
"Applicant" or "petitioner" means
a person or business who files an application, petition, appeal or other
request for board action with the Division of Gas and Oil.
"Board" means the Virginia Gas and Oil Board.
"Complete application" means all the materials required to be filed by the applicant under this chapter.
"Department" means the Department of Mines, Minerals and Energy.
"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.
"Directional survey" means a well survey that measures the degree of deviation of a hole, or distance, from the vertical and the direction of departure.
"Division" means the Division of Gas and Oil of the Department of Mines, Minerals and Energy.
"Division [ Director"
director" ] means the Director of the Division of Gas and Oil.
"Election" means the performance of an act within the time established or required by statute, order or regulation. An election required to be made by board order or regulation must be in writing and (i) be personally delivered to the person or agent of the person described in the order or regulation by the date established or required, or (ii) be mailed to the person or agent of the person described in the order or regulation at the address stated therein and be postmarked by the United States Postal Service before midnight on the date established or required.
"Field" means the general area underlain by one or more pools.
"Gas/oil ratio" means the product of the number of Mcf of natural gas produced from a well divided by the number of barrels of oil produced from the well as determined by a gas/oil ratio test.
"Gas well" means any well which produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.
"Inclination survey" means a well survey to determine the deviation, using the surface location of the well as the apex, of a well bore from the true vertical beneath the apex on the same horizontal subsurface plane.
"Mcf" means, when used with reference to natural gas, 1,000 cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and a temperature base of 60°F.
"Mine development plan" means a permit or license application filed with the Division of Mines or Mined Land Reclamation for legal permission to engage in extraction of coal resources.
"Oil well" means any well which produces or appears capable of producing a ratio of less than 6,000 cubic feet (6 Mcf) of gas to each barrel of oil, on the basis of a gas-oil ratio test.
"Petitioner" means any person or business who files a petition, appeal, or other request for action with the Division of Gas and Oil or the Virginia Gas and Oil Board.
"Pooling" means the combining of all interests or estates in a gas, oil or coalbed methane drilling unit for the development and operations thereof. Pooling may be accomplished either through voluntary agreement or through a compulsory order of the board.
"Respondent" means a person named in an application, petition, appeal or other request for board action and against whom relief is sought by the applicant, or a person who under the terms of a board order, is required to make an election.
"Unit operator" means the gas or oil owner designated by the board to operate in or on a pooled unit.
4VAC25-160-30. Administrative provisions.
A. The Virginia Gas and Oil Board shall meet on the third Tuesday of each calendar month unless no action is required by the board or unless otherwise scheduled by the board. All hearings shall be scheduled in accordance with the requirements for notice by publication in § 45.1-361.19 of the Code of Virginia. Except where otherwise established by the Act, the board may establish deadlines for filing materials for meetings or hearings scheduled on other than the third Tuesday of each month.
B. Applications to the board must be filed by the following deadlines:
1. All applications, petitions, appeals or other requests for board action must be received by the division at least 30 calendar days prior to the regularly scheduled meeting of the board. If the 30th day falls on a weekend or a legal holiday, the deadline shall be the prior business day.
2. When required, two copies of the following material must be filed with the division at least seven calendar days prior to the regularly scheduled meeting of the board in order for the application to be considered a complete application:
a. The affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 of the Code of Virginia and 4VAC25-160-40; and
b. Proof of notice by publication in accordance with 4VAC25-160-40 D.
C. A complete application that is not filed by the deadlines of this subsection shall be carried over to the next scheduled meeting of the board. A submission that does not contain a complete application shall not be considered by the board until the application is complete.
D. The division shall assign a docket number to each
application or petition at the time of payment receipt and filing,
and. The division shall notify the applicant of the completed
filing and assigned docket number. The docket number shall be referenced
when submitting material regarding the application or petition.
E. In addition to the other requirements of this chapter, applications to the board shall meet the following standards:
1. Each application for a hearing before the board shall be headed by a caption which shall contain a heading including:
a. "Before the Virginia Gas and Oil board Board";
b. The name of the applicant;
c. The relief sought; and
d. The docket number assigned by the division.
2. Each application shall be signed by the applicant, an authorized agent of the applicant, or an attorney for the applicant, certifying that, "The foregoing application to the best of my knowledge, information, and belief is true and correct."
3. Exhibits shall be identified by the docket number and an exhibit number and may be introduced as part of a person's presentation.
4. Persons Applicants shall submit 10 eight
sets of each application and exhibit exhibits. Each person
offering exhibits into evidence shall also have available a reasonably
sufficient number of exhibits for other persons who are subject to the
provisions of §§ 45.1-361.19 and 45.1-361.23 of the Code of Virginia, who
have notified the division [ by certified mail notice ]
of their request for copies of exhibits, and are expected to be in
attendance at the hearing.
F. Applications for the establishment and modification
of [ units a unit ], spacing or pooling shall be
accompanied by a $130 nonrefundable fee, payable to the Treasurer of Virginia.
G. All parties in any proceeding before the board are
entitled to appear in person or be represented by counsel or other qualified
representative, as provided for in the Administrative Process Act, §
2.2-4000 et seq. of the Code of Virginia.
4VAC25-160-40. Notice of hearings.
A. Each applicant for a hearing to establish an exception to statewide spacing under § 45.1-361.17 of the Code of Virginia shall provide notice by certified mail, return receipt requested, to all gas, oil, coal or mineral owners having an interest underlying any tract located within the distances provided in § 45.1-361.17 of the Code of Virginia or the distance to the nearest well completed in the same pool, whichever is less. Each applicant for a hearing to establish an exception to a well location provided for in a drilling unit established by an order of the board shall provide notice by certified mail, return receipt requested, to all gas, oil, coal or mineral owners having an interest underlying the unit where the exception is requested.
B. Each applicant shall include, in or with the mailed notice of the hearing required under § 45.1-361.19 of the Code of Virginia, the following information:
1. The name and address of the applicant and the applicant's counsel, if any;
2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;
3. A statement of the relief sought and proposed provisions of the order or proposed order;
4. Citations of statutes, rules, orders and decided cases supporting the relief sought;
5. A statement of the type of well or wells (gas, oil or coalbed methane gas);
6. a. For a pooling order, the notice should include: a plat
showing the size and shape of the proposed unit and boundaries of tracts within
the unit. The location of the proposed unit shall be shown in accordance with
the Virginia Coordinate System of 1927 1983, as defined in
Chapter 17 (§°55-287 et seq.) of Title 55 of the Code of Virginia, also known
as the State Plane Coordinate System. The proposed unit shall also be
located by taking the measured distance in feet from the unit to the nearest
2.5 minute longitude line to the east and the nearest 2.5 minute latitude line
to the north on the 7.5 minute (1:24,000) topographic map, with a notation of
the 7.5 minute topographic map name and series. The plat containing shall
include property lines taken from (i) deed descriptions and chain of title,
(ii) county courthouse records, or (iii) a physical survey for each land track
in the unit. The location of the well and the percentage of acreage in each
tract in the unit shall be certified by a licensed land surveyor or a
licensed professional engineer and attested by the applicant as to its
conformity to existing orders issued by the board;
b. For a field rule, the notice should include: a description of the pool or pools in the field, the boundaries of the field, information on the acreage and boundaries of the units proposed to be in the field and any proposed allowable production rates; or
c. For a location exception, the notice should include: a description of the proposed well location in relation to other wells within statewide spacing limits or in relation to the allowable area for drilling within a unit;
7. A description of the interest or claim of the respondent being notified;
8. A description of the formation or formations to be produced;
9. An estimate of the amount of reserves of the unit;
10. An estimate of the allowable costs in accordance with 4VAC25-160-100; and
11. How interested persons may obtain additional information or a complete copy of the application.
C. When after a diligent search the identity or location of any person to whom notice is required to be given in accordance with subsection A or B of this section is unknown at the time the applicant applies for a hearing before the board, the applicant for the hearing shall cause a notice to be published in a newspaper of general circulation in the county, counties, city, or cities where the land or the major portion thereof which is the subject of the application is located. The notice shall include:
1. The name and address of the applicant;
2. A description of the action to be considered by the board;
3. A map showing the general location of the area which
that would be affected by the proposed action or and a
description which that clearly describes the location or boundaries
of the area which that would be affected by the proposed action
sufficient to enable local residents to identify the area;
4. The date, time and location of the hearing at which the application is scheduled to be heard; and
5. How interested persons may obtain additional information or a complete copy of the application.
D. Notice of a hearing made in accordance with § 45.1-361.19 of the Code of Virginia or this section shall be sufficient, and no additional notice is required to be made by the applicant upon a postponement or continuance of the hearing.
E. Each applicant for a hearing to modify an order established under §°45.1-361.21 or § 45.1-361.22 of the Code of Virginia shall provide notice in accordance with §°45.1-361.19 of the Code of Virginia to each person having an interest underlying the tract or tracts to be affected by the proposed modification.
F. An applicant filing a petition to modify a forced pooling order established under § 45.1-361.21 or § 45.1-361.22 of the Code of Virginia to change the unit operator based on a change in the corporate name of the unit operator; a change in the corporate structure of the unit operator; or a transfer of the unit operator's interests to any single subsidiary, parent or successor by merger or consolidation is not required to provide notice. Other applicants for a hearing to modify a forced pooling order shall provide notice in accordance with § 45.1-361.19 of the Code of Virginia to each respondent named in the order to be modified whose interest may be affected by the proposed modification.
4VAC25-160-50. Applications for field rules.
Each application filed under § 45.1-361.20 of the Code of Virginia to establish or modify a field rule, a drilling unit or drilling units shall contain:
1. The name and address of the applicant and the applicant's counsel, if any;
2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;
3. A statement of the relief sought and the proposed provisions of the order or a proposed order;
4. Citations of statutes, rules, orders, and decided cases supporting the relief sought;
5. In the case where a field rule is proposed to be established or modified:
a. A statement of the type of field (gas, oil or coalbed methane gas);
b. A description of the proposed formation or formations subject to the petition; and
c. A description of the pool or pools included in the field,
based on geological and technical data, including the boundaries of the pool or
pools and field, shown in accordance with the Virginia Coordinate System of 1927
1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 of the
Code of Virginia, also known as the State Plane Coordinate System. The
boundaries of the pool or pools and field shall also be located by taking the
measured distance in feet from the unit to the nearest 2.5 minute longitude
line to the east and the nearest 2.5 minute latitude line to the north on the
7.5 minute (1:24,000) topographic map, with a notation of the 7.5 minute
topographic map name and series;
6. In the case where a drilling unit or units are proposed to be established or modified:
a. A statement of the acreage to be embraced within each drilling unit;
b. A description of the formation or formations to be produced by the well or wells in the unit or units; and
c. The boundaries of the drilling unit or units shown in accordance with subdivision 5 c of this section;
7. A statement of the amount of acreage to be included in the order;
8. A statement of the proposed allowable production rate or rates and supporting documentation, if applicable;
9. Evidence that any proposal to establish or modify a unit or units for coalbed methane gas will meet the requirements of § 45.1-361.20 C of the Code of Virginia;
10. An affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 of the Code of Virginia and 4VAC25-160-40; and
11. When required, proof of notice by publication in
accordance with 4VAC25-160-40 D C.
4VAC25-160-60. Applications for exceptions to minimum well spacing requirements.
Applications for an exception to statewide spacing under § 45.1-361.17 of the Code of Virginia or under a field rule issued by the board shall contain the following:
1. The name and address of the applicant and the applicant's counsel, if any;
2. In the case of an application for an exception to spacing established in a field rule, identification of the order governing spacing in the field;
3. A statement of the proposed location of the well in relation to wells permitted or for which a permit application is pending before the Division of Gas and Oil at the time of filing within the distances prescribed in §°45.1-361.17 of the Code of Virginia;
4. A description of the formation or formations to be produced by the well proposed for alternative spacing and the wells identified in subdivision 3 of this section;
5. A description of the conditions justifying the alternative spacing;
6. An affidavit demonstrating that due diligence was used to locate and serve persons in accordance with 4VAC25-160-40; and
7. When required, proof of notice by publication in accordance
with 4VAC25-160-40 D C.
4VAC25-160-70. Applications to pool interests in a drilling unit: conventional gas or oil or no conflicting claims to coalbed methane gas ownership.
A. Applications filed under § 45.1-361.21 of the Code of Virginia to pool interests in a drilling unit for conventional gas or oil or for coalbed methane gas where there are no conflicting claims to ownership of the coalbed methane gas, except as provided for in subsection B of this section, shall contain the following:
1. The name and address of the applicant and the applicant's counsel, if any;
2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;
3. A statement of the relief sought and proposed provisions of the order or a proposed order;
4. Citations of statutes, rules, orders, and decided cases supporting the relief sought;
5. A statement of the type of well or wells (gas, oil or coalbed methane gas);
6. The permit number or numbers, if any have been issued;
7. A plat showing the size and shape of the proposed unit and
boundaries of tracts within the unit, shown in accordance with the Virginia
Coordinate System of 1927 1983, as defined in Chapter 17 (§
55-287 et seq.) of Title 55 of the Code of Virginia, also known as the State
Plane Coordinate System. The proposed unit shall also be located by taking
the measured distance in feet from the unit to the nearest 2.5 minute longitude
line to the east and the nearest 2.5 minute latitude line to the north on the
7.5 minute (1:24,000) topographic map, with a notation of the 7.5 minute
topographic map name and series. Also included shall be the names of owners
of record of the tracts, and the percentage of acreage in each tract, certified
by a licensed land surveyor or a licensed professional engineer and attested by
the applicant as to its conformity to existing orders issued by the board;
8. A description of the status of interests to be pooled in the unit at the time the application is filed;
9. For an application to pool a coalbed methane gas unit, a statement of the percentage of the total interest held by the applicant in the proposed unit at the time the application for the hearing is filed;
10. A statement of the names of owners and the percentage of interests to be escrowed under § 45.1-361.21 D of the Code of Virginia for each owner whose location is unknown at the time the application for the hearing is filed;
11. A description of the formation or formations to be produced;
12. An estimate of production over the life of well or wells, and, if different, an estimate of the recoverable reserves of the unit;
13. An estimate of the allowable costs in accordance with 4VAC25-160-100;
14. An affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 of the Code of Virginia and 4VAC25-160-40 C; and
15. When required, proof of notice by publication in
accordance with 4VAC25-160-40 D C.
B. Applications to amend an order pooling interests in a drilling unit may be filed by written stipulation of all persons affected. The application is not required to contain the information specified in subsection A of this section, but shall contain the proposed amended language to the order, shown by interlineation.
C. After Within 45 days after the time for
election provided in any pooling order has expired, the unit operator shall
file an affidavit with the board stating whether or not any elections were
made. If any elections were made, the affidavit shall name each respondent
making an election and describe the election made. The affidavit shall state if
no elections were made or if any response was untimely. The affidavit shall be
accompanied by a proposed supplemental order to be made and recorded to
complete the record regarding elections. The affidavit and proposed
supplemental order shall be filed by the unit operator within 45 days of the
last day on which a timely election could have been delivered or mailed, or
within 45 days of the last date for payment set forth in the pooling order,
whichever occurs last. The applicant shall mail a true and correct copy of any
supplemental order to all persons identified in the supplemental order.
4VAC25-160-130. Appeals of the director's decisions.
A. Appeals of the division director's decisions shall be filed in writing, at the office of the division, in accordance with §§ 45.1-361.23 and 45.1-361.36 of the Code of Virginia.
B. A petition to appeal a decision of the division director shall contain:
1. The name and address of the petitioner and the petitioner's counsel, if any;
2. Identification of the decision being appealed, and the date the decision was issued;
3. A statement identifying the standing of the petitioner to appeal;
4. A statement setting forth the reasons for the appeal, including errors alleged in the director's decision and the reasons why the decision is deemed contrary to law or regulation;
5. A statement that the issues on appeal were in fact raised as required by § 45.1-361.36 B of the Code of Virginia;
6. A statement setting forth the specific relief requested; and
7. When a stay to any proposed activity allowed as a result of the director's decision is desired, a request for the stay and the basis for granting the stay.
C. Upon receipt of an appeal containing a request for a stay, the division director shall decide on the request in accordance with § 45.1-361.23 D of the Code of Virginia.
4VAC25-160-190. Civil charges.
A. Civil charges shall be provided for in accordance with § 45.1-361.8 C of the Code of Virginia.
B. The division director, after finding any violation of the Act, a regulation promulgated under the Act, or order of the director or board, or upon direction from the board, may recommend a civil charge against a gas, oil or geophysical operator and shall base the recommendation on the Civil Charge Calculation Procedure established by order of the board.
4VAC25-160-200. Surveys and tests.
A. Deviation tests.
1. An inclination survey shall be made on all rotary drilled wells located in accordance with a field rule established by the board. An inclination survey is not required for wells drilled in accordance with the distance limitations of § 45.1-361.17 of the Code of Virginia.
2. The first shot point shall be at a depth not greater than the bottom of the surface casing or, for a well drilled through a coal seam, at a depth not greater than that of the bottom of the coal protection string. Succeeding shot points shall be no more than 1,000 feet apart, or as otherwise ordered by the director.
3. Inclination surveys conforming to these requirements may be made either during the normal course of drilling or after the well has reached total depth. Survey data shall be certified in writing as being true and correct by the designated agent or person in charge of a permittee's Virginia operations, or the drilling contractor, and shall indicate the resultant lateral deviation as the maximum calculated lateral displacement determined at any inclination survey point in a horizon approved for production, by an order of the board or a permit approved by the director, assuming that all displacement occurs in the direction of the nearest boundary of the unit. The resultant lateral deviation shall be recorded on the drilling or completion report filed by the permittee.
4. If a directional survey determining the location of the bottom of the hole is filed upon completion of the well, it shall not be necessary to file the inclination survey data.
5. A directional survey shall be made when:
a. A well is directionally controlled and is thereby intentionally deflected from vertical;
b. The resultant lateral deviation of any well, calculated from inclination survey data, is greater than the distance from the center of the surface location of the well bore to the nearest boundary of the area where drilling is allowed in a unit established by the board; or
c. A well is drilled as an exception location and a directional survey is ordered by the board.
6. The board or the director, on their own initiative or at the request of a gas or oil owner on a contiguous unit or tract, may require the permittee drilling any well to make a directional survey of the well if there is reasonable cause therefor. Whenever a survey is required by the board or the director at the request of a contiguous owner and the permittee of the well and contiguous owner are unable to agree as to the terms and conditions for making the directional survey, the permittee shall pay for the survey if the bottom hole location is found to be outside of the area approved for drilling, and the contiguous owner shall pay for the survey if the bottom hole location is found to be inside of the area approved for drilling.
7. Directional surveys shall be run from total depth to the base of the surface casing or coal protection string, unless otherwise approved by the board or the director. In the event that the proposed or final location of the producing interval or intervals of any well is not in accordance with this section or a board order, the unit operator shall apply to the board for an exception to spacing. However, directional surveys to total depth shall not be required in cases where the interval below the latest survey is less than 500 feet, and in such an instance, a projection of the latest survey shall be deemed to satisfy board requirements.
8. The results of each inclination or directional survey made
in accordance with this section shall be filed by the permittee with the first
drilling or completion report required by the department division.
B. Flow potential and gas/oil ratio tests: conventional gas or oil wells.
1. If a gas or oil well appears capable of producing gas or
oil, the permittee shall conduct a potential flow test and a gas/oil ratio test
within 10 14 days after the well is completed and capable of
producing gas or oil. The permittee shall file the test results, electronically
or in writing, with the director division. The director
division director shall hold the test results confidential in accordance
with § 45.1-361.6 of the Code of Virginia.
2. If a permittee deepens or stimulates a well after the initial
potential flow test and gas/oil ratio test have been conducted, when determined
to be necessary by the permittee or when requested by the board, the permittee
shall conduct another potential flow test and gas/oil ratio test and, within 30
days after completing the test, file the results, in writing, with the director
division.
3. A back-flow method of determining open flow shall be used,
such as provided for in recommended by the Interstate Oil and Gas
Compact Commission, "Manual of Back-Pressure Testing of Gas Wells," 1979
2000. However, when a back-flow method is believed not to be feasible,
the permittee shall obtain prior approval from the director division,
and test the well in accordance with, an alternate method approved by the
director that does not entail excessive physical waste of gas.
C. Testing of coalbed methane gas wells. If a permittee
cannot test the potential flow of a coalbed methane gas well by a back-flow
method or complete the test within the time period required in subdivision B 1
of this section, the permittee may request approval from the director to
perform a coalbed methane gas production test. Such a test shall only be made
when the water production and the gas flow rates are stabilized for a period of
not less than 10 14 days prior to the test. The test shall be
conducted for a minimum of 24 hours in the manner approved by the director. The
permittee shall file the test results, electronically or in writing,
with the director division. The director division
director shall hold the test results confidential in accordance with §
45.1-361.6 of the Code of Virginia.
D. The board may, by order and after notice and hearing, require a permittee to complete other tests on any well.
VA.R. Doc. No. R08-1317; Filed September 6, 2012, 12:36 p.m.
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TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS
STATE BOARD OF JUVENILE JUSTICE
Proposed Regulation
Title of Regulation: 6VAC35-20. Regulations Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs (amending 6VAC35-20-10, 6VAC35-20-30, 6VAC35-20-35, 6VAC35-20-37, 6VAC35-20-50, 6VAC35-20-60, 6VAC35-20-69, 6VAC35-20-75, 6VAC35-20-80, 6VAC35-20-90, 6VAC35-20-92, 6VAC35-20-93, 6VAC35-20-94, 6VAC35-20-100, 6VAC35-20-110, 6VAC35-20-120, 6VAC35-20-150; adding 6VAC35-20-36, 6VAC35-20-36.1, 6VAC35-20-61, 6VAC35-20-85, 6VAC35-20-91, 6VAC35-20-115, 6VAC35-20-200, 6VAC35-20-210, 6VAC35-20-220, 6VAC35-20-230, 6VAC35-20-240; repealing 6VAC35-20-63, 6VAC35-20-65, 6VAC35-20-67).
Statutory Authority: §§ 16.1-233 and 66-10 of the Code of Virginia.
Public Hearing Information: No public hearings are scheduled.
Public Comment Deadline: December 7, 2012.
Agency Contact: Janet VanCuyk, Regulatory Coordinator, Department of Juvenile Justice, P.O. Box 1110, Richmond, VA 23218-1110, telephone (804) 371-4097, FAX (804) 371-0773, or email janet.vancuyk@djj.virginia.gov.
Basis: The board is entrusted with general authority to promulgate regulations by § 66-10 of the Code of Virginia, which states the board may "promulgate such regulations as may be necessary to carry out the provisions of this title and other laws of the Commonwealth administered by the Director or the Department" and "develop and establish programmatic and fiscal policies governing the operation of programs and facilities for which the Department is responsible under this law."
The board also establishes the substantive standards for juvenile court services unit (CSUs) (§§ 16.1-233, 16.1-234, 16.1-235, and 16.1-309.9 of the Code of Virginia), juvenile secure detention centers (§§ 16.1-249, 16.1-284.1, 16.1-291, 16.1-322.7, 16.1-309.9, and 16.1-309.10 of the Code of Virginia), juvenile group homes funded through Virginia Juvenile Community Crime Control Act (VJCCCA) (§§ 16.1-309.9 and 16.1-309.10 of the Code of Virginia), juvenile halfway houses (§ 66-24 of the Code of Virginia), and juvenile correctional center (JCCs), including juvenile books camps (§ 66-13 of the Code of Virginia) and privately managed JCCs (§ 66-25.3 of the Code of Virginia).
The department is vested with the duty to ensure compliance with standards set by the board. Section 16.1-249 of the Code of Virginia requires juvenile secure detention centers, group homes, and any other residential placement wherein any alleged delinquent juveniles are placed pursuant to an order by the court to be "approved by" the department. Additionally, post-dispositional detention centers in juvenile secure detention centers must be certified pursuant to § 66-25.4 of the Code of Virginia and residential facilities utilized for the care of juveniles in direct state care must be certified pursuant to § 66-24 of the Code of Virginia. Moreover, § 16.1-309.9 of the Code of Virginia authorizes the board to "prohibit, by its order, the placement of juveniles in any place of residence which does not comply with the minimum standards. It may limit the number of juveniles to be detained or housed in a detention home or other facility and may designate some other place of detention or housing for juveniles who would otherwise be held therein."
Additionally, the following sections of the Code of Virginia require the board to promulgate regulations for specific juvenile justice programs:
§ 16.1-233 requires the board to regulate CSU staff, including their appointment and function, with the goal of establishing, as much as practicable, uniform services for juvenile and domestic relations courts throughout the Commonwealth.
§ 16.1-234 requires the director to ensure that the minimum standards established by the board for CSUs are adhered to by state-operated CSUs.
§ 16.1-309.9 requires the board to regulate the "development, implementation, operation, and evaluation of the range of community-based programs, services, and facilities authorized" by VJCCCA. This section also requires the department to "periodically review all services established and annually review expenditures."
§ 16.1-309.10 authorizes the board to visit, inspect, and regulate detention centers, group homes, and other residential care facilities "for children in need of services or delinquent, or alleged delinquent established by a county, city, or any combination thereof."
§ 16.1-322.7 requires the board to "make, adopt and promulgate regulation" governing the operation of local or regional detention centers. This section also requires a regulation to cover the "methods of monitoring contractor-operated" facilities "by an appropriate state or local governmental entity or entities."
§ 66-13 allows the department "to establish, staff and maintain facilities for the rehabilitation, training and confinement" of juveniles committed to the department. This section also requires the board to set standards for boot camps.
§ 66-24 establishes the board as the licensing agency for "group homes or residential facilities providing care of juveniles in direct state care" and requires the board to "promulgate regulations for licensure or certification of community group homes or other residential care facilities that contract with or are rented for the care of juveniles in direct state care."
§ 66-25.4 authorizes the board to promulgate regulations governing privately operated JCCs.
Several of the aforementioned sections require the board to promulgate specific regulations; however, none specifically require the board to issue regulations governing the regulatory process generally. Thus, the enactment of the Certification Regulation is permissive. Nevertheless, the board and the department have followed a Certification Regulation since 1992 (before the department separated from the Department of Corrections). While there is no specific requirement for a Certification Regulation, the board and the department have continued this regulatory chapter as it is important to have clear, concise, and consistent rules, rights, and responsibilities for the involved parties throughout the Commonwealth, particularly in light of the fact that over 20 juvenile group homes, 24 juvenile secure detention centers, and three CSUs are locally or commission-operated.
Purpose: The Regulations Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs (the "Certification Regulation") sets forth the process by which the department and the board monitor compliance with the regulatory provisions applicable to residential facilities (local and state-operated), CSUs, and nonresidential programs and services in Virginia's juvenile justice system. It establishes (i) how the board will measure compliance with its regulations; (ii) thresholds for various regulatory actions available to the board; and (iii) minimum requirements for the department, as the board's regulatory agent, to monitor programs and report its findings. The regulation also provides for scheduled audits and unscheduled visits to ensure compliance with applicable regulations; an administrative review of audits; an appeals process in cases of disagreement with audit findings; and the issuance of variances under certain conditions.
Per the requirements in §§ 2.2-4017 and 2-2-4007.1 of the Code of Virginia and Executive Order 36 (2006), the department is required to conduct a "periodic review." The purpose of this review is to determine (1) whether the regulation is supported by statutory authority (as determined by the Office of the Attorney General) and (2) that the regulation is (a) necessary for the protection of public health, safety, and welfare; and (b) clearly written and easily understandable. This review must be completed every four years. The last comprehensive review of the Certification Regulation was completed in September 2003. Thus, the regulation must be reviewed in order to maintain compliance with the applicable statutes and Executive Order.
Additionally, the board is currently revamping its regulatory scheme relating to the requirements for residential programs regulated by the board (JCCs, juvenile secure detention centers, and juvenile group homes and halfway houses). The primary intent of this residential regulatory overhaul is to reduce confusion in applying the regulatory requirements in each type of facility. The existing regulatory provisions have been examined to determine whether each was (i) appropriate for the type of facility; (ii) clear in its intent and effect; and (iii) necessary for the proper management of the facility. Amendments were recommended to accommodate the type of facility's specific needs and to enhance program and service requirements to best provide for the residents. These regulations (6VAC35-71 for JCCs; 6VAC35-101 for juvenile secure detention centers; and 6VAC35-41 for juvenile group homes and halfway houses) are currently undergoing the Executive Branch review at the final stage of the regulatory process.
One of the changes approved by the board in the residential regulatory overhaul was to draft each regulation (one for each "type" of facility regulated) with the requirements for each facility, facility administrator, provider, or governing authority. In so doing, any responsibilities of the department, the regulatory authority, or the board currently included in the existing regulatory scheme (the Standards for Juvenile Residential Facilities (6VAC35-140) and the Standards for the Interim Regulation of Children's Residential Facilities (6VAC35-51)) are proposed to be removed (i.e., issuance of licenses/certification and sanction). It was determined that any appropriate provisions relating to the certification and licensure process should be contained in the Certification Regulation as it governs the process of regulating and certifying these facilities. Thus, the Certification Regulation must be amended to incorporate the necessary provisions currently provided for in other regulations. Since the Certification Regulation is (i) scheduled for its required periodic review and (ii) should be amended to incorporate those provisions deleted from the residential regulations applicable to the department and the board, the regulation will undergo a comprehensive review of each provision for appropriateness, effectiveness, clarity in intent, and effect, and will be modified to provide for all regulatory duties and responsibilities of the department and the board in the residential and nonresidential certification processes.
Finally, under the current regulation, the department conducts monitoring visits and audits of programs and facilities regulated by the board and the board makes the determination of whether a program or facility should be certified and, if so, the duration of the certification. In the current Certification Regulation, 6VAC35-20-100 details the actions that may be taken by the board regarding a program's or facility's certification status. What action may be taken is dependent upon any findings of noncompliance determined during the audit completed by department personnel.
Since the last review of the regulation, the authority to approve and certify a facility was reexamined to determine whether the certification function was administrative in nature and should be managed and whether certificates should be issued by the department rather than the board. The following sections of the Code of Virginia were examined: §§ 16.1-234, 16.1-235, 16.1-249, 16.1-278.4, 16.1-278.8, 16.1-284.1, 16.1-291, 16.1-309.9, 16.1-309.10, 66-10, 66-13, 66-24, and 66-25.1:3. After consultation with the Office of the Attorney General and Secretary of Public Safety, it was determined that (i) there is no general certification requirement (however, certification is required by the Department of Social Services and the Comprehensive Services Act for placement of juveniles in group homes and other certifications are required as stated in the "legal basis" section); (ii) the board establishes the substantive standards on which the programs and facilities are audited; (iii) the department ensures that the programs and facilities meet the board’s standards; and (iv) the board monitors the activities and effectiveness of the department and may prohibit placement or limit the number of juveniles placed in a facility that does not comply with its standards. The proposed language reflects this interpretation of the certification authority of the department, with oversight by the board.
Having programs and facilities in compliance with their regulatory requirements is essential to the health, safety, and welfare of juveniles served by or placed in the programs or facilities and staff employed therein. The Certification Regulation and proposed changes strengthen the process for monitoring, approving, and certifying programs and facilities in the juvenile justice system. The proposed changes establish clear, concise, and consistent rules, rights, and responsibilities for the involved parties throughout the Commonwealth, particularly in light of the fact that over 20 juvenile group homes, 24 juvenile secure detention centers, and three CSUs are locally or commission-operated. Having such a regulation is essential to protect the safety of juveniles participating in programs, and receiving services from and residing in juvenile residential facilities or nonresidential juvenile justice programs.
There are no known environmental benefits.
Substance: The following changes have been proposed for the Regulation Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs (the "Certification Regulation"):
1. 6VAC35-20-10 (Definitions): Update the definitions and terms for clarity and consistency with other regulations promulgated by the board and current standards of practice. Delete several definitions considered unnecessary in the regulation or not needing to be defined due to the common usage of the term. Add other definitions for clarity and consistency in usage throughout the regulation. Amend other definitions to conform:
a. Delete the following definitions: (i) Administrative probation; (ii) Administrative review; (iii) Certified; (iv) Mandatory standards; (v) Plan of action; (vi) Random sampling; (vii) Substantial compliance; (viii) Systemic deficiency; and (ix) Unresolved life, health, or safety violation.
b. Add the following definitions: (i) Audit team leader, (ii) Certification audit, (iii) Compliance documentation, (iv) Conditional certification, (v) Corrective action plan, (vi) Critical regulatory requirements, (vii) Juvenile residential facility or facility, (viii) Monitoring review, (ix) Office on Youth, (x) Regulatory requirement, (xi) Summary suspension order, (xii) VJCCCA program, (xiii) VJCCCA program or office on youth audit, (xiv) VJCCCA program or office on youth audit report, and (xv) Written.
2. 6VAC35-20-30 (Purpose):
a. Amend to include all Code of Virginia citations providing for the monitoring, approval, and certification of programs and facilities.
b. Clearly distinguish between the certification of CSUs and facilities and monitoring of VJCCCA programs and offices on youth.
c. State the Board's role in reviewing certification audit reports when a CSU or facility is in noncompliance with a regulatory requirement.
3. 6VAC35-20-35 (Guidance documents):
Incorporate technical changes to conform with other changes in the regulation.
4. 6VAC35-20-36 (Program or facility relationship to regulatory authority):
Incorporate the basic components of 6VAC35-51-230 (Relationship to regulatory authority) in the board's Regulation Governing Residential Programs as they are recommended for deletion in the pending overhaul of the residential regulations.
5. 6VAC35-20-36.1 (Department response to reports of health, welfare, or safety violations):
Insert the current provisions, with technical amendments, of 6VAC35-20-65. This is recommended because placement in this section is chronologically logical.
6. 6VAC35-20-37 (Director's authority to take immediate administrative action):
a. Make technical changes.
b. Add the ability for notifications to be by mail, electronic mail, or hand delivery.
7. 6VAC35-20-50 (Preaudit process for certification audits):
a. Rework the provision regarding notice to the CSU or facility administrator to reflect current practice.
b. Delete the provision relating to an administrative review audit as these audits are never performed.
8. 6VAC35-20-60 (Monitoring of programs and facilities):
a. Reduce the number of required on-site monitoring visits from two (one announced, one unannounced) to one scheduled per year.
b. Allow additional monitoring visits to be conducted at the request of the board, the department, or a program or facility administrator.
9. 6VAC35-20-61 (Self-audit of programs and facilities subject to the certification audit):
Add a requirement for CSUs and facilities to complete self-audits each year, except in the year subject to a certification audit.
10. 6VAC35-20-63 (Reports of monitoring visits):
Delete this section. The department must report to the board any health, welfare, and safety violation (per 6VAC35-20-36.1).
11. 6VAC35-20-65 (Reports required of life, health, and safety violations):
a. Move subsection A to 6VAC35-20-36.1.
b. Delete subsection B. The board's ability to decertify is provided for in 6VAC35-20-115.
12. 6VAC35-20-67 (Disputes of noncompliance findings):
Move section to 6VAC35-20-90 C.
13. 6VAC35-20-69 (Newly opened facilities and new construction, expansion, or renovation of
residential facilities):
a. Add a requirement for the potential facility administrator to request a review for conditional certification.
b. Cross-reference the applicable substantive regulations for facilities and the certification actions in 6VAC35-20-100.
14. 6VAC35-20-75 (Certification of individual programs or facilities):
a. Designate the director or designee as the individual responsible for issuing certificates.
b. Move provisions relating to post-certification action to and insert certificate action provisions currently provided for in 6VAC35-20-100.
15. 6VAC35-20-80 (Certification audit procedures):
a. Clarify the burden of proof requirements.
b. Incorporate the requirement for the certification audit to include a personal visit to the program or facility.
16. 6VAC35-20-85 (Determining compliance with individual regulatory requirements):
a. Create a new section specifically addressing the determination of compliance with individual regulatory requirements.
b. Incorporate the standards for compliance currently utilized by the Department of Corrections.
17. 6VAC35-20-90 (Certification audit findings):
a. Move requirements relating to certification audit reports and corrective action plans (in subsection C) to 6VAC35-20-91.
b. Require notice of the findings to the program administrator, the program's or facility's supervisory or governing authority, and the director or designee.
c. Incorporate the post-audit actions currently provided in 6VAC35-20-67 and 6VAC35-20-75.
18. 6VAC35-20-91 (Corrective action plans and certification audit reports):
a. Create a separate section containing all provisions relating to corrective action plans and certification audit reports.
b. Add components currently provided for in department procedures relating to timelines and required report components.
19. 6VAC35-20-92 (Variance request):
Include a requirement that any variance requested as a result of a finding of noncompliance in an audit must be submitted with the corrective action plan to be implemented if the variance is denied.
20. 6VAC35-20-93 (Waivers):
Clearly delineate circumstances when a waiver may be granted.
21. 6VAC35-20-94 (Appeal process):
a. Amend the time frames for submission and response.
b. Add components currently provided for in department procedures.
c. Include a requirement that any appeal of a finding of noncompliance does not negate the requirement to submit a corrective action plan.
22. 6VAC35-20-100 (Certification action):
a. Require the department to notify the program or facility administrator of the audit team's recommended certification action and the time, date, and location when certification action will be taken.
b. State that the facility administrator has the right to attend the director's or designee's review of the certification audit report and determination of certification action.
c. Set specific criteria and parameters regarding issuance of certificates depending on level, duration, and frequency of noncompliance.
23. 6VAC35-20-110 (Notice of certification action):
a. Delete the requirement for facilities to post the certificate. This is recommended for incorporation in the pending residential regulation overhaul.
b. Move the requirement to provide variance documentation to 6VAC35-20-80.
24. 6VAC35-20-115 (Board review of programs and facilities found in noncompliance):
Create a new section providing for the board's authority to review audit reports and to take appropriate action when a program or facility is found to be in noncompliance with a regulatory requirement.
25. 6VAC35-20-120 (Actions following decertification or denial of certification):
Clarify actions to be taken after a program or facility is decertified or denied certification; specifically, the provisions relating to department-operated and local, regional, and privately operated facilities.
26. 6VAC35-20-150 (Critical regulatory requirements for juvenile residential facilities):
Delete reference to outdated "mandatory requirements" and require the board to separately define critical regulatory requirements.
27. 6VAC35-20-200 (Monitoring of VJCCCA programs or offices on youth):
Require the department to set a schedule for monitoring VJCCCA programs and offices on youth.
28. 6VAC35-20-210 (VJCCCA programs and offices on youth self-evaluations):
Require VJCCCA programs and offices on youth to complete self-assessments.
29. 6VAC35-20-220 (VJCCCA program and office on youth audits):
Set criteria for VJCCCA program and office on youth audits.
30. 6VAC35-20-230 (VJCCCA program and office on youth audit findings):
a. Require the department to provide audit findings to the program contact with a copy to the program's supervisory authority.
b. Allow for program appeals of a finding of noncompliance.
c. Require the department to monitor the progress of any program found in noncompliance.
31. 6VAC35-20-240 (Effect of VJCCCA program or office on youth noncompliance):
State the specific effects of a finding of noncompliance.
Issues: Having programs and facilities in compliance with their regulatory requirements is essential to the health, safety, and welfare of juveniles served by or placed in the programs or facilities and staff employed therein. The Certification Regulation and proposed changes strengthen the process for monitoring, approving, and certifying programs and facilities in the juvenile justice system. The proposed changes establish clear, concise, and consistent rules, rights, and responsibilities for the involved parties throughout the Commonwealth, particularly in light of the fact that over 20 juvenile group homes, 24 juvenile secure detention centers, and three CSUs are locally or commission-operated. Having such a regulation is essential to protect the safety of juveniles participating in programs, and receiving services from and residing in juvenile residential facilities or nonresidential juvenile justice programs.
The proposed amendments have been vetted through an advisory committee consisting of individuals who would be affected by the changes. The proposed amendments would streamline the reporting requirements and would not affect the quality of services provided. The proposed amendments do not pose any disadvantages to the public or the Commonwealth.
Department of Planning and Budget's Economic Impact Analysis:
Summary of the Proposed Amendments to Regulation. The Board of Juvenile Justice (the Board) proposes to 1) transfer the certification authority from the Board to the Director of the Department of Juvenile Justice, 2) replace the unannounced monitoring visits with self audits for Court Service Units (CSUs) and facilities, 3) require Virginia Juvenile Community Crime Control Act (VJCCCA) programs and offices on youth to complete self-assessments, 4) reduce the time frame to resolve a certification appeal from 15 days to 10 days, 5) require the notice of the audit findings be sent to additional authorities, 6) remove the list of critical requirements for juvenile residential facilities from the regulations, and 7) clarify and reorganize numerous existing requirements.
Result of Analysis. There is insufficient data to accurately compare the magnitude of the benefits versus the costs. Detailed analysis of the benefits and costs can be found in the next section.
Estimated Economic Impact. These regulations establish the process by which the Department of Juvenile Justice (the Department) and the Board monitor compliance with the regulatory provisions applicable to residential facilities, Court Service Units (CSUs), and nonresidential programs and services in Virginia's juvenile justice system.
One of the proposed changes will move the certification authority from the Board to the Department. According to the Department, in consultation with the Office of the Attorney General and Secretary of Public Safety, a reexamination of the legal authority to approve and certify a facility revealed that the certification authority lies with the Department, with oversight by the Board when there is finding of noncompliance. Thus, the proposed changes will make the Director or designee responsible for issuing certifications when certification criteria are met. However, when a program or facility is found in noncompliance with applicable regulatory requirements the Board’s oversight will be required in the certification process.
This change will transfer some of the authority from the Board to the Director. While there are no significant direct economic effects expected from this particular change, this change is procedurally significant. Also, the Department notes that the Board may not have the subject matter expertise as the Director would have. Moreover, certification decisions may be made faster by the Director than by the Board since the Board meets a few times over a year while the Director or his designee would be available throughout the year. Finally, it could be argued that by approving these proposed changes, the Board reveals its willingness to transfer this authority to the Director.
Another proposed change will reduce the number of required onsite monitoring visits from two (one announced, one unannounced) to one scheduled per year for CSUs and facilities, except in the year subject to certification audit. However, the proposed changes also add that CSUs and facilities perform self audits. Thus, the proposed changes essentially replace the unannounced monitoring visits with the self audits. According to the Department, this change will replace approximately 35-40 unannounced monitoring visits with self audits. However, the Department indicates that many facilities have already been voluntarily conducting self audits. Thus, only a few facilities are expected to incur additional compliance costs as a result of this change. Also, the Department believes that cost of unannounced monitoring visits and self audits are comparable for the facilities. However, a reduction in administrative costs of the Department is expected as self audits cost the Department less than the unannounced on-site monitoring visits.
The proposed changes will also require VJCCCA programs and Offices on Youth to complete self-assessments. Currently, there are no required unannounced monitoring visits for these programs, but there are certain reporting requirements in the Virginia Juvenile Community Crime Control Act manual. According to the Department, the intent of the self audit is to capture the intent of the manual requirements. Thus, the Department does not expect additional compliance costs on these programs and localities in approximately 77 jurisdictions.
Another proposed change will reduce the time frame to resolve a certification appeal from 15 days to 10 days. This change may add to the administrative costs of the Department due to shortened time frame to make appeal decisions, but it is expected to help resolve a deficiency quicker. Under the regulations, facilities do not have to take the corrective action plans while the appeal is under review.
The proposed changes will also require the notice of the audit findings be sent to the program's or facility's supervisory or governing authority and the Director or designee in addition to the program administrator. While there may be small administrative costs associated with issuing additional notices, the Department expects that the dissemination of notices to additional authorities would help in addressing the deficiencies quicker.
Finally, the proposed changes will remove the list of critical requirements for juvenile residential facilities from the regulations and establish that "the board shall designate which regulatory requirements will be classified as critical regulatory requirements." According to the Department, the current list is outdated and the Board needs flexibility since changes to this list may occur frequently. Critical requirement designation is significant because 100 percent compliance is required with the critical requirements for certification. With the proposed change, the Board will be able to change what is considered as a critical requirement and possibly change a facility’s certification status without going through the regulatory review process. Ultimate economic effects of this change will depend on what the Board designates as a critical requirement. Since there is no information on what changes the Board may make to the list in the future, this change creates uncertainty for the regulated programs and facilities.
All of the remaining changes are either clarification or reorganization of existing requirements and are not expected to create any significant economic effects other than improving the clarity of the regulations.
Businesses and Entities Affected. There are 24 locally or commission-operated juvenile secure detention centers, two halfway houses, 23 locally-operated group homes, 77 local jurisdictions for programs, six state Juvenile Correctional Centers, 32 state-operated CSUs, and three locally-operated CSUs.
Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth.
Projected Impact on Employment. Replacing the unannounced monitoring visits with self audits for Court Service Units and facilities is expected to reduce the Department’s demand for labor.
Effects on the Use and Value of Private Property. No significant impact on the use and value of private property is expected.
Small Businesses: Costs and Other Effects. No direct significant costs and other effects on small businesses are expected.
Small Businesses: Alternative Method that Minimizes Adverse Impact. No direct adverse impact on small businesses is expected.
Real Estate Development Costs. No significant impact on real estate development costs is expected.
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 responsible Virginia Board of Juvenile Justice agency representatives have reviewed the Department of Planning and Budget's (DPB) Economic Impact Analysis of 6VAC35-20 - Regulations Governing the Certification Process (Certification Regulation). Regarding DPB's assessment that removing the critical requirements from the Certification Regulation creates uncertainty for the regulated programs and facilities, the Department of Juvenile Justice (Department) disagrees.
Under the current regulatory scheme, there is confusion as to what should be designated critical regulatory requirements because they are listed in the Certification regulation and not in the substantive regulations (6VAC35-51 and 6VAC35-140). Thus, when the substantive regulations are amended simultaneous changes may not be made to the Certification Regulation's designations. Removing the designations of critical requirements from the Certification Requirements will reduce confusion for the regulated entities. Additionally, in consultation with the regulated entities, it was agreed that having the Board retain the ability to designate would be appropriate as the decisions would be made in open meetings, subject to notice and public comment.
The agency has no additional comment regarding DPB's analysis.
Summary:
The proposed amendments include (i) separating the requirements for the certification of court service units and facilities and the auditing of VJCCCA programs and offices on youth; (ii) making the director or designee responsible for issuing certifications, with oversight by the board, when a program or facility is found in noncompliance with applicable regulatory requirements; (iii) reducing the number of required on-site monitoring visits from two (one announced, one unannounced) to one scheduled per year; (iv) adding a requirement for court service units and facilities to perform self audits; (v) clarifying pre-audit, audit, and post-audit procedures, including setting specific time frames; (vi) incorporating the requirements for corrective action plans and certification audit reports by including some requirements from the existing procedures and practices; (vii) setting specific criteria and parameters regarding issuance of certificates depending on level, duration, and frequency of noncompliance; (viii) adding a requirement for the program's or facility's supervisory or governing authority to be provided with notice of the certification action; (ix) incorporating the parameters for the board's review of programs and facilities found in noncompliance; (x) reworking the section regarding actions following decertification to track statutory authority; and (xi) removing the outdated list of "mandatory standards."
CHAPTER 20
REGULATIONS REGULATION GOVERNING THE MONITORING, APPROVAL, AND
CERTIFICATION OF JUVENILE JUSTICE PROGRAMS AND FACILITIES
Part I
Definitions and General Provisions
6VAC35-20-10. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Administrative probation" means the status
granted to a program or facility in an emergency situation at the discretion of
the director pending the next regularly scheduled board meeting.
"Administrative review" means the audit of the
administrative records of a local jurisdiction or governing commission. The
administrative review involves only a review of documentation housed at a
central office.
"Appeal of a finding of noncompliance" means
the action taken by a unit, facility or program administrator after an
a certification audit when there is disagreement with a team
finding of noncompliance with an individual regulatory requirement.
"Audit team leader" means the person designated by the director or designee to organize and facilitate the certification audit or the audit of a VJCCCA program or office on youth.
"Board" means the Virginia Board of Juvenile Justice.
"Certification" or "certified"
means the board's formal finding that a program meets (i) all
mandatory standards; (ii) an acceptable percentage of all other standards as
indicated in the chart at 6VAC35-20-100; and (iii) the requirements of
applicable board policies; and or facility is consequently
approved to operate for a specific period of time as provided for in
6VAC35-20-100.
"Certification action" means the department's decision to issue or deny certification or to decertify a program or facility as provided for in 6VAC35-20-100 or the board's decision to take action pursuant to 6VAC35-20-115.
"Certification audit" means an on-site visit by
the process by which designated personnel to assess a program's or
facility's compliance with applicable board standards and policies regulatory
requirements, which includes an on-site visit, the results of which are
reported to the board for in a certification audit report for
certification action as provided for in 6VAC35-20-100. All facilities and court
service units regulated by the board shall be subject to certification audits.
"Certification audit report" or "audit
report" means the official report of certification audit
findings prepared for review by the board by the audit team
leader as provided for in 6VAC35-20-90.
"Certification status" means the type of
certification approved by the board for issued to a given
program or facility, including which includes the period
of time specified in the certificate, during which the program or
facility is approved to operate and must maintain its standards
compliance levels and have acceptable plans of action compliance with
its regulatory requirements and any corrective action plan.
"Certified" means that the board has approved a
program to operate under the conditions set out in 6VAC35-20-100.
"Compliance" means meeting the requirements of a standard or an applicable board policy.
"Compliance documentation" means specific documents or information including records, reports, observations, and verbal responses to establish or confirm compliance with a regulatory requirement by a program or facility.
"Conditional certification" means a temporary certification status issued to a new or newly opened facility as provided for in 6VAC35-20-100.
"Corrective action plan" means a written document that, in accordance with 6VAC35-20-91, states what has been or will be done to bring all deficiencies into compliance with regulatory requirements.
"Critical regulatory requirements" means those regulatory requirements for programs or facilities, as defined by the board, that must be maintained at 100% compliance. Critical regulatory requirements were previously termed "mandatory standards."
"Decertified" means that a previously certified
program does not meet the requirements to be certified and is no longer
approved to operate a status imposed in accordance with 6VAC35-20-120
when it is determined that a program or facility has not met an acceptable
percentage of compliance with its regulatory requirements as provided for in
6VAC35-20-85.
"Deficiency" and "noncompliance" means
that the program or facility (i) does not meet, or has not
demonstrated that it meets, the requirements of a board standard or policy
regulatory requirements or (ii) does not comply with the Virginia
Juvenile Community Crime Control Act local plan approved by the board.
"Department" means the Virginia Department of Juvenile Justice.
"Director" means the Director of the Department of Juvenile Justice.
"Life, health, "Health, welfare, or
safety violation" means any action or omission that results in
noncompliance with a board standard or policy and causes an immediate and potentially
serious substantial threat to the life, health, welfare,
or safety of the youth juveniles or staff in juvenile
residential programs facilities.
"Juvenile residential facility" or "facility" means a publicly or privately operated facility or placement where 24 hour-per-day care is provided to residents who are separated from their legal guardians and that is certified pursuant to this chapter. As used in this regulation, the term includes juvenile group homes and halfway houses, juvenile secure detention centers, and juvenile correctional centers.
"Mandatory standards" means those standards of
performance for programs as defined by the board which must be maintained in
100% compliance at all times.
"Monitoring review" means a review by designated department personnel assessing the program's or facility's compliance with regulatory requirements. A monitoring review may be conducted via electronic means and does not require on-site examination of the program or facility. A monitoring review may be done in conjunction with a program's or facility's self-audit, which is provided for in 6VAC35-20-61.
"Monitoring visit" means an on-site review evaluation
and inspection by designated personnel to assess a program's or
facility's compliance with board-approved standards, policies and, when
applicable, Virginia Juvenile Community Crime Control Act local plan regulatory
requirements.
"Newly opened facility" means both (i) a
facility that is newly constructed and or (ii) an existing
facility that is being placed in service as a juvenile residential
program facility.
"Office on Youth" means nonresidential programs funded via the Virginia Delinquency Prevention and Youth Development Act (Chapter 3 (§ 66-26 et seq.) of Title 66 of the Code of Virginia).
"Plan of action" means a written document that
explicitly states what has been or will be done to bring all deficiencies into
compliance with board standards and policies.
"Probation" "Probationary
certification" means the temporary status granted to a program by
the board or facility to provide a period of time in which to come
into demonstrate compliance with standards regulatory
requirements.
"Program" means a juvenile residential facility,
court service unit, or a nonresidential service subject to standards
or policies of the board applicable regulatory requirements. For
the purpose of this regulation, VJCCCA programs and offices on youth are not
included in this definition.
"Program or facility administrator" means the
staff member individual responsible for the operation operations
of a program, or facility or institution subject to
regulatory requirements.
"Random sampling" means a system for selecting
programs for monitoring visits, by which all programs in a given category have
a similar likelihood of being selected for a visit, but which may not result in
any given program receiving a monitoring visit during any given period of time.
"Regulatory requirement" means a provision of a regulation promulgated by the board to which a program or facility must adhere. A section, subsection, or subdivision of a regulation may include multiple regulatory requirements as provided for in 6VAC35-20-85.
"Substantial compliance" means that the program
meets all applicable mandatory standards and at least 90% of all other
applicable standards.
"Summary suspension order" means an order issued by the director in accordance with § 66-24 of the Code of Virginia and 6VAC35-20-37 temporarily suspending a program's or facility's certification.
"Systemic deficiency" means that deficiencies
have been found in three or more separate but related standards and have been
cited by certification personnel as indicating that a program may have
significant problems in a given area such as recordkeeping, training, health
services, social services, security, etc.
"Unresolved life, health or safety violation"
means a life, health or safety violation that is not corrected in an approved
corrective plan of action or that has recurred after the life, health or safety
violation was noted during an interim monitoring visit.
"Variance" means a board action that relieves a
program or facility from having to meet a specific standard regulatory
requirement or develop a corrective action plan of action for
that standard, either permanently or regulatory requirement for a
determined period of time, when (i) waiving these requirements will not
result in a threat to the life, health or safety of juveniles or staff; (ii)
enforcement will create an undue hardship; (iii) the standard is not
specifically required by statute or by the regulations of another government
agency; (iv) the standard is not designated as mandatory by the board; and (v)
juveniles' care or services would not be adversely affected.
"VJCCCA program" means a nonresidential program established under the Virginia Juvenile Community Crime Control Act (Article 12.1 (§ 16.1-309.2 et seq.) of Chapter 11 of Title 16.1 of the Code of Virginia).
"VJCCCA program or office on youth audit" means the on-site visit by designated department personnel to assess a program funded through the Virginia Juvenile Community Crime Control Act (Article 12.1 (§ 16.1-309.2 et seq.) of Chapter 11 of Title 16.1 of the Code of Virginia) or the Virginia Delinquency Prevention and Youth Development Act (Chapter 3 (§ 66-26 et seq.) of Title 66 of the Code of Virginia) for compliance with the regulatory requirements as provided for in 6VAC35-150 (Regulation for Nonresidential Services) and 6VAC35-60 (Minimum Standards for Virginia Delinquency Prevention and Youth Development Act Grant Programs), as applicable.
"VJCCCA program or office on youth audit report" means an official report of a VJCCCA program or office on youth audit.
"Waiver" means a formal statement from the
department temporarily excusing a program or facility from meeting a nonmandatory
standard noncritical regulatory requirement pending board action on
a formal variance request.
"Written" means the required information is communicated in writing. Such writing may be available in either hard copy or electronic form.
6VAC35-20-30. Purpose.
This regulation prescribes how, in accordance with Code of
Virginia §§ 16.1-234, 16.1-309.1, 16.1-249, 16.1-309.9 B,
16.1-309.10, 16.1-349, and 66-10, 66-24, and 66-25.1:3 of the Code of
Virginia, (i) the Board and Department of Juvenile Justice department
will monitor and approve and audit juvenile residential facilities,
programs, VJCCCA programs, and offices on youth; (ii) the department will
certify residential facilities and nonresidential programs state-operated
and local court service units that are part of the Commonwealth's juvenile
justice system; and (iii) the board will review certification audit reports
of programs and facilities found in noncompliance with applicable regulatory
requirements.
6VAC35-20-35. Guidance documents.
To help programs and facilities meet all regulatory and
policy requirements, the department shall prepare guidance documents
compiling all standards and policies regulatory requirements
applicable to each type of program or facility subject to this chapter
and stating how compliance will be assessed. The guidance documents will serve
as the basis for monitoring visits, monitoring reviews, certification
audits, and the board's certification action and VJCCCA program or
offices on youth audits.
6VAC35-20-36. Program or facility relationship to regulatory authority.
A. The program or facility shall submit or make available to the audit team leader such reports and information required to establish compliance with applicable regulatory requirements. Documentation supporting compliance with regulatory requirements shall be retained by the program or facility from the date of the previous certification audit or VJCCCA program or office on youth audit.
B. The program or facility administrator shall notify the director or designee within five business days of any significant change in administrative structure or newly hired chief administrative officer or program or facility administrator or director.
C. The program or facility administrator shall, as required in the applicable guidance documents as prescribed in 6VAC35-20-35, notify the director or designee of the following:
1. Any serious incidents affecting the health, welfare, or safety of citizens, individuals under the supervision of the department, or staff;
2. Lawsuits against or settlements relating to the health, welfare, safety, or human rights of residents; and
3. Any criminal charges or reports of suspected child abuse or neglect against staff relating to the health, welfare, safety, or human rights of residents.
6VAC35-20-36.1. Department response to reports of health, welfare, or safety violations.
A. Whenever the department becomes aware of a health, welfare, or safety violation, the department shall take immediate action to correct the situation if not already done by the program or facility. The department's actions may include, but are not limited to, the following:
1. Reporting the situation to child protective services, the Virginia State Police or the law-enforcement agency with jurisdiction, or other enforcement authorities, as applicable and appropriate; or
2. Taking any action authorized in 6VAC35-20-37 for violations in a juvenile residential facility.
B. The department shall report to the board no later than its next regularly scheduled meeting (i) the nature and scope of the health, welfare, or safety violation and (ii) the action taken by the department or the program or facility to correct the violation.
6VAC35-20-37. Director's authority to take immediate administrative action.
A. Nothing in this regulation shall be construed to limit the
director's authority to take immediate administrative action in accordance with
law whenever (i) evidence is found of any life, health, welfare,
or safety violation or (ii) a program or facility is not in substantial
compliance with board-approved standards, policies, regulatory
requirements or local plan for the Virginia Juvenile
Community Crime Control Act programs requirements. Such
administrative action may include, but is not limited to (a) withholding funds;
(b) removing juveniles from the program or facility; or (c)
placing the program or facility on administrative probation probationary
certification status for up to six months pending certification action
review by the board pursuant to 6VAC35-20-115; or (d) summarily
suspending the certificate pursuant to subsection B of this section. In
taking such action, the department shall notify the program or facility
administrator, the administrative entity that to which the
program or facility reports to, and the board, in writing, of the
reason for the administrative action and the action the program or facility
must take to correct the situation violation.
B. In accordance with subsection A of this section and
pursuant to the provisions set forth in § 66-24 of the Code of Virginia,
the director may issue a preliminary summary order of suspension order
of the license or certificate of any group home or the
juvenile residential facility so regulated by the department.
board as follows:
1. Conditions A preliminary order of suspension may
be issued when conditions or practices existing exist in the home
or facility posing that pose an immediate and substantial
threat to the health, welfare, or safety, and welfare of the
residents include including, but not limited to, the following:
a. Violations of any provision of applicable laws or applicable regulations made pursuant to such laws;
b. Permitting, aiding, or abetting the commission of any
illegal act in the regulated home or facility;
c. Engaging in conduct or practices that are in violation of statutes related to abuse or neglect of children;
d. Deviating significantly from the program or services for
which a license or certificate was issued without obtaining prior
written approval from the regulatory authority or failing to correct such
deviations within the specified time; or
e. Engaging in a willful action or gross negligence that jeopardizes the care or protection of the resident.
2. The director shall immediately upon issuance of the
preliminary summary suspension order and without delay notify the licensee
or certificate holder verbally and by in writing via (i)
facsimile, (ii) electronic mail, or (iii) hand delivery of the issuance
of the preliminary order of suspension and the opportunity for a hearing before
the director or his designee within three working business
days of the issuance of the preliminary summary order of suspension order.
The chair of the board must be notified immediately when the director issues
a preliminary summary suspension order. In accordance with 6VAC35-20-36.1, the
director shall report the action taken to the board no later than its regularly
scheduled meeting.
a. The licensee or certificate holder may decline the
opportunity for an appeal to the director or his designee.
b. Whenever an appeal is requested and a criminal charge is
also filed against the appellant involving the same conduct, the appeal process
shall be stayed until the criminal prosecution is completed. During such stay,
the licensee's or certificate holder's right of access to the records of
the department regarding the matter being appealed shall also be stayed. Once
the criminal prosecution in court has been completed, the department shall
advise the appellant in writing of his right to resume his appeal within the timeframes
time frames provided by law and regulation.
3. The licensee or certificate holder may appear before
the director or his designee by personal appearance or by telephone. Any
documents filed may be transmitted by facsimile and the facsimile and any
signatures thereon shall serve, for all purposes, as an original document.
a. Upon request, the department shall provide the appellant a
summary of the information used in making its determination. Information
prohibited from being disclosed by state or federal law or regulation shall not
be released. In the case of any information being withheld, the licensee or
certificate holder shall be advised of the general nature of the information
and the reasons, of privacy or otherwise, that it is being withheld.
b. The director or his designee shall preside over the
appeal. With the exception of the director, no person whose regular duties include
substantial involvement with the certification or licensing of the
facilities shall preside over the appeal.
(1) The licensee or certificate holder may be
represented by counsel.
(2) The licensee or certificate holder shall be
entitled to present the testimony of witnesses, documents, factual data,
arguments, or other submissions of proof.
4. The director or his designee shall have the
authority to sustain, amend, or reverse the preliminary summary
suspension order. If sustained or amended, the order is considered final.
The director or his designee shall notify the licensee or
certificate holder in writing of the results of the appeal and of the right
to appeal the final order to the appropriate circuit court within 10 days
of the hearing decision. Notification of the results of the
appeal before the director or his designee shall be mailed certified
with return receipt to the licensee or certificate holder.
a. The chair of the board must be immediately notified when
the director issues a final order of summary suspension order. In
accordance with 6VAC35-20-65 6VAC35-20-36.1, the director shall
report the action taken to the board no later than its next regularly
scheduled meeting the action taken.
b. If the licensee or certificate holder is not satisfied,
the licensee or certificate holder may dispute the noncompliance finding
in accordance with 6VAC35-20-67 6VAC35-20-90.
Part II
Certification Audits of Programs and Facilities
6VAC35-20-50. Preaudit process for certification audits.
A. At least six months in advance of an a
certification audit, personnel designated by the director the
department shall notify each program or facility to be audited of
the scheduled audit date and the name of the designated audit team leader.
B. Up until At least 90 days before the
scheduled audit, the program or facility administrator may request that
the audit be rescheduled. Except as provided in 6VAC35-20-100, audits, even if
rescheduled, must occur before the expiration of the current certification,
unless specifically approved by the director.
C. Audit team members shall be appointed and notified of
their appointment at least 30 days prior to the scheduled audit. The program
administrator of the agency to be audited shall receive a list of the team
members.
D. At least 10 days prior to the scheduled audit, C.
The audit team leader shall provide the program or facility administrator with
a list of audit team members as soon as practicable, but no later than 10 days
before the scheduled certification audit. Upon notification of the audit team
members, the program or facility administrator may, for just
cause, request that one or more members of the audit team be replaced.
Every reasonable effort will be made to comply with the request. Any
subsequent addition or substitution of the audit team members shall be
communicated to the program or facility administrator as soon as practicable
and may be made subject to the mutual agreement of the audit team leader and
program or facility administrator.
E. In instances where several programs are operated under
the administration of a single commission, the certification team and the
program administrator may agree to an administrative review audit.
6VAC35-20-60. Monitoring visits of programs and
facilities.
A. All state and local programs or facilities
subject to standards regulations issued by the Board of
Juvenile Justice board shall be subject to periodic, scheduled monitoring
visits, scheduled and or monitoring reviews conducted in
accordance with written department procedures. Whenever deemed
necessary, the board may require that a monitoring visit be conducted of any
program.
B. The department shall annually submit to the board develop
a plan for monitoring programs and facilities subject to certification
audits, which shall provide for at least the following:
1. All residential programs, court service units and
offices on youth that are currently receiving state funding programs and
facilities that are subject to certification audits shall receive at least
one announced scheduled monitoring visit per year. A
certification audit may shall satisfy the requirement of a
scheduled monitoring visit. In addition, all residential programs and court
service units shall receive at least one unannounced monitoring visit per year.
2. All nonresidential programs established under the
Virginia Juvenile Community Crime Control Act (Article 12.1 of Title 16.1 of
the Code of Virginia) shall be reviewed at least once every two years to
determine compliance with the approved local plans and standards promulgated by
the board. Additional monitoring visits or monitoring reviews may be
conducted at the request of the board, department, or program or facility
administrator.
3. Individual nonresidential programs shall receive
monitoring visits according to the department's annual plan, which may provide
for random sampling of programs in various categories. However, during each
calendar year at least one nonresidential program in each Virginia Juvenile
Community Crime Control Act (VJCCCA) plan shall receive a monitoring visit.
6VAC35-20-61. Self-audit of programs and facilities subject to certification audits.
A. All programs and facilities subject to certification audits shall, in accordance with department procedures, conduct, except in the year the program or facility is subject to a certification audit, an annual self-audit for compliance with applicable regulatory requirements.
B. The self-audit reports shall be made available during the certification audit.
6VAC35-20-63. Reports of monitoring visits. (Repealed.)
The department shall report to the board in writing any
significant deficiencies identified through monitoring visits or other means
when a program has failed to take needed corrective action.
6VAC35-20-65. Reports required of life, health and safety
violations. (Repealed.)
A. Whenever department personnel become aware of a life,
health or safety violation, the department shall take immediate action to
correct the situation if the program has not already done so. Such action may
include but is not limited to reporting the situation to Child Protective
Services, the State Police, or other enforcement authorities as appropriate,
administrative probation, removal of residents or suspension of finding. The
department shall report to the board no later than its next regularly scheduled
meeting: (i) the nature and scope of the violation, and (ii) the action taken
by the department or the program to correct the deficiency.
B. When a life, health or safety violation has not been
adequately corrected, the board may take certification action up to and
potentially including decertification.
6VAC35-20-67. Disputes of noncompliance findings. (Repealed.)
Any program that is cited for noncompliance with
board-approved standards, policies or local VJCCCA plan may:
1. Request a variance in accordance with 6VAC35-20-92; or
2. Appeal the finding, in writing, within 10 days of
receiving notice of the finding, in accordance with department procedures and
6VAC35-20-94.
6VAC35-20-69. New Newly opened facilities and new
construction, expansion, or renovation of residential programs facilities.
A. When a newly opened facility seeks certification to allow the admission of residents, the facility administrator shall contact the director or designee to request a review of the facility for conditional certification.
B. The facility administrator and the department shall
follow the requirements of this chapter and department procedures in reviewing
a facility prior to admission of residents. New construction, expansions,
and renovations in all juvenile residential programs facilities,
whether or not the facility or its sponsor is seeking reimbursement for
construction or operations, shall conform to applicable the governing
provisions in of the board's Regulations for Local Juvenile
Residential Facility Construction and Reimbursement of Local Construction Costs
(6VAC35-30), and Standards for Interagency Regulation of Children's Residential
Facilities (22VAC42-10). In addition, the department shall consider the
facility's degree of compliance with the Guidelines for Minimum Standards in
Design and Construction of Juvenile Facilities. following regulations
and any applicable guidance documents related thereto:
1. Regulation Governing Juvenile Correctional Centers (6VAC35-71);
2. Regulation Governing Juvenile Secure Detention Centers (6VAC35-101);
3. Regulation Governing Juvenile Group Homes and Halfway Houses (6VAC35-41); and
4. Regulation Governing State Reimbursement of Local Juvenile Residential Facility Costs (6VAC35-30).
B. The department shall not approve the housing of
juveniles in a newly opened facility if the facility does not meet the
requirements for a conditional certification as provided in 6VAC35-20-100.
C. The department shall not approve the housing of
juveniles in any portion of a facility that has been modified through expansion
or renovation, until designated department staff visit the facility and verify
that:
1. The facility or applicable portion thereof complies with
all applicable mandatory standards and physical plant standards; and
2. The current certification issued by the board is
appropriate to the status of its program and construction.
C. A newly constructed, expanded, or renovated facility shall, except as provided in subsection D of this section, obtain conditional certification as provided in 6VAC35-20-100 prior to the placement of residents in the new facility or portion of an existing facility subject to the expansion or renovation.
D. The director or designee shall consider the request for certification within 60 days of receiving the request and report of the basic audit findings. Actions taken by the director or designee shall be governed by the provisions of 6VAC35-20-100.
6VAC35-20-75. Certification of individual programs or facilities.
A. The board director or designee shall
individually certify all (i) juvenile residential facilities, and
(ii) court service units and offices on youth that are currently
receiving state funding.
B. The department shall schedule and conduct certification
audits in sufficient time for the board to take action on the audit report
before a program's current certification expires. The department shall publish
procedures for naming audit team members, conducting on-site audits,
determining compliance, conducting exit interviews, reviewing and approving
corrective plans of action, and instructing programs how to request variances
or appeal findings.
C. Upon the completion of the audit, the certification
audit findings shall be reported to the program's administrator and sponsor and
to appropriate department personnel. The program administrator or sponsor may
appeal any of the certification audit findings in accordance with department
procedures that shall specify (i) the timeframes for filing the appeal and for
the department's response; and (ii) the department personnel responsible for
considering the appeal.
D. Appeals of audit findings that cannot be resolved by the
department shall be forwarded to the board for resolution as provided in
6VAC35-20-94.
E. Designated department personnel shall review and
approve plans of action to address deficiencies identified in the audit report,
and summaries of the approved plans of action shall be forwarded to the board
along with the audit report.
F. Requests for variances shall be forwarded to the board
along with the department's recommendation to approve or disapprove the
variance.
B. The director or designee may extend a current certification for a specified period of time pending a certification audit and the completion of an administrative review, provided the department is not aware of any health, welfare, or safety violations.
C. If a program's or facility's certification expires prior to the director's or designee's consideration of the certification audit report, the program's or facility's current certification status shall continue in effect until the director or designee takes certification action.
D. The director or designee may, upon the request of a program or facility administrator or the department, modify during the term of the certificate the conditions of a certificate relating to a program's or facility's certification status or capacity, the residents' age range or sex, the facility's location, or changes in the services offered and provided.
E. A certificate is not transferrable and automatically expires when there is a change of ownership or sponsorship of the program or facility.
F. When the program or facility ceases to operate, the program or facility administrator shall return the certificate to the director or designee. The department shall notify the board of the change in the program's or facility's status.
6VAC35-20-80. On-site Certification audit procedures.
A. The burden of providing proof of compliance with
standards rests with the program staff. Documentation created once the audit
has begun shall not be accepted. The program or facility shall
demonstrate substantial compliance as required in this chapter and by any
applicable guidance documents that require that the program or facility have no
areas of noncompliance that pose an immediate and direct danger to residents.
B. The audit team shall (i) visit the program or facility and (ii) review and examine sufficient documentation to adequately render a determination of compliance as provided for in 6VAC35-20-85.
1. The burden of providing proof of compliance with regulatory requirements rests with the program or facility staff.
2. A program or facility with an approved variance or waiver shall provide such documentation to the certification audit team.
B. 3. It is permissible to provide additional
documentation should the certification team request it; however, such
documentation must already exist when the audit begins. Once the audit is
concluded, any changes made by an agency will not change the compliance
determination for a given standard but instead become part of the program's
plan of action.
4. Compliance documentation shall be collected through documentation, interview, and observation.
6VAC35-20-85. Determining compliance with individual regulatory requirements.
A. During the audit process, the department shall determine whether the program or facility is compliant with each regulatory requirement. To be found in compliance, the following shall be shown:
1. The program or facility shall:
a. For critical regulatory requirements, demonstrate 100% compliance;
b. For noncritical regulatory requirements with multiple elements, the certification audit team will make a determination of compliance as indicated in the applicable compliance document that shall require (i) an acceptable percentage of compliance with the provision and (ii) an absence of any systemic noncompliance in any single element; or
c. For all noncritical regulatory requirements, demonstrate an acceptable percentage compliance as provided for in the applicable guidance document.
2. The program or facility shall not have:
a. Any circumstance or condition constituting a pattern of action that presents a concern for the health, welfare, or safety of the residents, program participants, or staff; or
b. Any circumstance or condition that presents an immediate threat to the health, welfare, or safety of the residents, program participants, or staff.
B. The determination of noncompliance shall be a decision made by the entire certification team in accordance with the applicable guidance document.
C. For purposes of calculating percentage of compliance, the determination of what constitutes individual regulatory requirements (i.e., section, subsection, subdivision, or element in a list in the regulatory chapter) will be specified in the applicable guidance document.
6VAC35-20-90. Certification audit reports findings.
A. Upon the completion of the audit, the certification audit findings shall be discussed with the program's or facility's administrator or designee.
A. B. A written report of the team's
findings from the certification audit shall be submitted to the
program administrator, within 10 working business days
following the compliance certification audit, to (i) the
program or facility administrator, (ii) the supervisory or governing authority
over the program or facility administrator, and (iii) to the director or
designee. Any finding of noncompliance with a regulatory requirement shall be
documented.
B. The program administrator shall develop a plan of
action to correct all noncompliance findings. The plan of action shall be
submitted to the department personnel as designated in department procedures
within 15 days of receipt of the report of the team's findings. In exceptional
situations, the designated department personnel may grant a 30-day extension to
a program administrator for the development of an action plan. C. Any
program or facility that is cited for noncompliance with a regulatory
requirement may within 10 business days of receiving the written report of the
findings for the certification audit:
1. Request in writing a variance in accordance with 6VAC35-20-92; or
2. Appeal the finding of noncompliance in writing and in accordance with department procedures and 6VAC35-20-94.
C. The department shall issue guidelines, including
timeframes, that provide a process for reviewing and approving plans of
corrective action, including those that are initially deemed unacceptable and
in need of refinement, in time for the plans to be included in the audit report
to the board. If an acceptable plan of action is not submitted within the
required time frame, the director or designee shall refer the matter to the
board for action.
D. Each certification audit report submitted to the board
shall contain:
1. The program's name, administrator, sponsor, location and
purpose;
2. A summary of the program's target audience, its relation
to other entities in the community and in the juvenile justice system, and
other information relevant to its operation;
3. The date of the certification audit and the names of the
audit team members;
4. Notation of all standards and policies for which
noncompliance was found, including especially notation of any life, health or
safety violations; a brief description of the circumstances, including
extenuating and aggravating factors; and supplemented, when appropriate, with
photographic evidence or other documentation; and
5. For each deficiency cited, a plan of corrective action
that states:
a. The action taken or required to correct the deficiency
and prevent its recurrence;
b. The person or agency responsible for the action; and
c. The deadline for taking the action.
6VAC35-20-91. Corrective action plans and certification audit reports.
A. For each finding of noncompliance, the program or facility administrator shall develop a corrective action plan.
1. The corrective action plan shall be submitted to the department within 30 days of receipt of the written certification audit findings. For good cause, the department may grant a 30-day extension to a program or facility administrator for the development of the corrective action plan.
2. The department shall issue guidelines that provide for (i) the format, (ii) any content not currently required by this section, and (iii) the process for the department's review and approval of corrective action plans.
3. The corrective action plan shall include the following:
a. A description of any extenuating or aggravating factors contributing to the noncompliant circumstances or conditions;
b. A description of each corrective action required or tasks required to correct the deficiency and prevent its recurrence;
c. The actual or proposed date of task completion; and
d. The identification of the person responsible for oversight of each element of the implementation of the corrective action plan.
If the corrective action proposed by the program or facility involves a request for a variance in accordance with 6VAC35-20-92, the corrective action plan must also state what action will be taken to meet or attempt to meet the regulatory requirement should the request for the variance be denied.
4. The program or facility administrator shall be responsible for developing and implementing a written corrective action plan.
5. If a finding of noncompliance results in a request for an appeal of the finding of noncompliance or a variance, documentation of the request for a variance or of the appeal of the finding of noncompliance should be attached to the corrective action plan.
B. Each certification audit report submitted to the director or designee shall contain:
1. The program's or facility's name, administrator, and location;
2. A summary of the program's or facility's population served, programs, and services provided;
3. The date of the certification audit and the names of the audit team leader and members; and
4. Notation of all regulatory requirements for which there was a finding of noncompliance as provided for in 6VAC35-20-85.
If there is a finding of noncompliance with a regulatory requirement, the report shall describe the noncompliance and incorporate the program's or facility's corrective action plan for each area of noncompliance. If a program or facility administrator fails to submit a corrective action plan within the time specified, the certification audit report, with audit team recommendations, shall be submitted to the director or designee for consideration.
C. The program or facility administrator shall submit to the audit team leader, upon completion of the corrective action plan, documentation confirming all corrective actions have been fully executed.
6VAC35-20-92. Variance request.
A. Any request for a variance must be submitted in
writing and. If the request is submitted subsequent to a finding of
noncompliance in a certification audit, the request must be submitted within 10
days of receiving the written report of the findings from the certification
audit. All requests shall include:
1. The nonmandatory standard noncritical regulatory
requirement for which a variance is requested;
2. The justification for the request;
3. Any actions taken to come into compliance;
4. The person and agency responsible for such action;
5. The date at which time compliance is expected; and
6. The specific time period requested for this variance;
and.
7. A draft plan of corrective action describing how the
program would meet the standard should the variance not be granted.
The department's recommendation to the board as to the
certification action to be taken shall address each of the program's variance
requests.
B. Documentation of any variance requests stemming from a finding of noncompliance in a certification audit shall be submitted along with the corrective action plan for correcting any deficiencies cited during the certification audit as provided for in 6VAC35-20-91.
C. A requested variance shall not be implemented prior to obtaining the approval of the board.
D. Requests for variances shall be placed on the agenda for consideration at the next regularly scheduled board meeting. The requested variance shall be accompanied by the department's recommendation to approve or disapprove the variance.
E. In issuing variances, the board shall specify the scope and duration of the variance.
6VAC35-20-93. Waivers.
A. When a program or facility has submitted a formal
variance request to the board concerning a nonmandatory standard noncritical
regulatory requirement, the director may, but is not required to, grant a
waiver temporarily excusing a program or facility from meeting the
requirements of the standard regulation when (i) the standard
regulatory requirement is not required by statute or by federal or state
regulations other than those issued by the board of juvenile justice;
(ii) noncompliance with the standard regulatory requirement will
not result in a threat to the life, health, welfare, or safety of
residents, the community, or staff; (iii) enforcement will create an
undue hardship; and (iv) juveniles' care or services would not be adversely
affected.
B. A waiver shall be granted only when the program or facility is presented with emergency conditions or circumstances making compliance with the regulatory requirement either impossible or impractical.
C. The waiver shall be in effect only until such time
as the board acts on the variance request. The board will act on the matter at
its first meeting following notice from the department director or
designee that a waiver has been granted.
C. D. The director or designee shall
promptly notify the board by first class mail of waivers granted,
and the rationale for so doing granting.
D. E. A program or facility will
not be cited for noncompliance with the requirements of a standard regulatory
requirement subject to a waiver during the time it operates pursuant to a
waiver approved by the director or designee.
6VAC35-20-94. Appeal process for a finding of noncompliance with an individual regulatory requirement.
If an appeal of any audit findings is being made, the
program administrator shall attach the appeal request to any plan of action and
submit the appeal to department personnel as designated in agency procedures
within 15 days of written notification of the audit findings.
A. A program or facility administrator may appeal a finding of noncompliance of an audit by submitting the appeal to the director or designee within 10 days of the written notification of the audit findings.
Department staff as designated in agency procedures B.
The manager for the certification team or designee shall contact the
program or facility administrator and make every effort to resolve the
appeal with the program administrator within 15 10 days of
receiving the appeal receipt of the appeal. If the program
administrator is not satisfied, he may submit a written request to department
staff as designated in department procedures within five days to have the
matter reviewed by the Board of Juvenile Justice at its next scheduled meeting.
The matter will be placed on the board's agenda pursuant to timeframes adopted
by the board for submission of agenda items.
C. If department personnel and the program or facility administrator are not able to informally resolve the issue on appeal, the request for an appeal shall be forwarded by the manager for the certification team or designee as soon as practicable to the director or designee.
1. The director or designee shall issue a decision on the appeal within 15 business days of receipt.
2. The program or facility administrator shall be informed as soon as practicable, but no later than the end of the next business day, of the director's or designee's decision.
D. If the appealed finding of noncompliance remains unresolved after exhaustion of the informal review and appeal to the director designee, the program or facility administrator may appeal the director's or designee's decision to the board. Upon request, the department shall place the appealed finding of noncompliance on the board's agenda for consideration at its next regularly scheduled meeting.
E. If the appeal is granted, the finding of noncompliance shall be removed from the certification audit report.
F. An appeal pursuant to this section does not negate the requirement to submit a corrective action plan, as required by 6VAC35-20-91, on the disputed regulatory requirement.
6VAC35-20-100. Board certification Certification
action.
A. The board may extend a current certification for a specified
period of time, pending a certification audit and the completion of
administrative reviews, provided the program meets all mandatory standards and
the board and the department are not aware of any life, health or safety
violations.
B. If a program's certification expires during a period
when the board does not meet, the program's current certification status shall
continue in effect until the board meets and takes certification action.
C. Once the board takes certification action, the board
will issue a certificate or letter clearly identifying the program, the
certification status, and the period of time during which the certification
will be effective unless the certificate is revoked or surrendered sooner.
D. For purposes of calculating percentage of compliance, a
standard will be identified either as a section of the Virginia Administrative
Code or a subsection identified by an uppercase letter (A, B, C, etc.). Thus,
whenever a section of a 6VAC35 regulation contains one or more subsections, each
subsection constitutes a distinct standard. Subdivisions (identified by
numerals (1, 2, 3, etc.) or lower case letters (a, b, c, etc.) are not separate
standards but are elements of the standard. When any element a, b, c or 1, 2, 3
is not met, the standard in which it appears is not met.
E. A Conditional Certification for up to six months will
be issued to a new program that:
1. Demonstrates 100% compliance with all mandatory
standards;
2. Demonstrates at least 90% compliance with all
nonmandatory standards;
3. Has acceptable plans of action for all noncompliances;
and
4. Has no unresolved life, health or safety violations.
F. A One-year Certification will be issued when a program
currently holds a Conditional Certification, a One-Year Certification, or a
Three-Year Certification, and:
1. Is in 100 % compliance with all mandatory standards;
2. Demonstrates at least 90% compliance with all other
standards;
3. Has acceptable plans of action for all noncompliance;
4. Has no unresolved life, health or safety violations; and
5. Has no more than one systemic deficiency.
G. A Three-year Certification will be issued when a
program currently holds a One-year Certification or a Three-year Certification
and the program:
1. Is in 100% compliance with all mandatory standards;
2. Demonstrates at least 95% compliance with all other
standards;
3. Has acceptable plans of action for all noncompliance;
4. Has no unresolved life, health or safety violations; and
5. Has no systemic deficiencies.
H. Any program, in any certification status, will be
placed on probation for up to six months when the program:
1. Is in less than 100% compliance with all mandatory
standards but has acceptable plans of action to address deficiencies;
2. Demonstrates less than 90% compliance with all other
standards;
3. Does not have acceptable plans of action for all
noncompliance;
4. Has one or more unresolved life, health or safety
violations; or
5. Has two or more systemic deficiencies.
I. Any program, regardless of current certification
status, will be decertified or denied certification when:
1. The program is in less than 100% compliance with all
mandatory standards without acceptable plans of action to address deficiencies;
2. The program demonstrates less than 90% compliance with
all other standards and does not have acceptable plans of action to address
deficiencies;
3. The program, if on probation or administrative
probation, has not corrected the circumstances that were cited in placing the
program on probation or administrative probation to the point that the program
would qualify for at least conditional certification; or
4. The program's staff have (i) committed, permitted, aided
or abetted any illegal act in the program; or (ii) violated child abuse or
neglect laws; or (iii) deviated significantly from the program or services for
which a certificate was issued without prior approval from the board; or (iv)
failed to correct any such deviations within the time specified by the board;
or (v) falsified records.
A. The department shall notify the program or facility administrator of (i) the date, time, and location the director or designee will take certification action relating to the program's or facility's certification audit and (ii) any recommendation of the audit team regarding the program's or facility's certification status. The program or facility administrator shall have the right to appear in person or by counsel or other qualified representative when the director or designee considers the audit report and makes a certification decision.
B. A conditional certification for up to six months will be issued to a new program or a newly opened facility that:
1. Demonstrates 100% compliance with (i) all critical regulatory requirements and (ii) any physical plant regulatory requirements;
2. Demonstrates at least 90% compliance with all noncritical regulatory requirements;
3. Has acceptable corrective action plans for all noncompliances; and
4. Has no unresolved health, welfare, or safety violations.
C. Upon review of the audit findings and any acceptable corrective action plans, the director or designee may take the following certification actions:
1. If the certification audit finds the program or facility in (i) 100% compliance with all regulatory requirements or (ii) less than 100% with a corrective action plan demonstrating the program or facility is in 100% compliance, the director or designee shall certify the facility for three years.
2. If the certification audit finds the program or facility in less than 100% compliance with all regulatory requirements and there (i) are no health, welfare, or safety violations and (ii) is an acceptable corrective action plan for any finding of deficiency, the director or designee shall certify the facility for a specific period of time, up to three years.
3. If the certification audit finds the program or facility in less than 100% compliance with all regulatory requirements and there is a health, welfare, or safety violation with an acceptable corrective action plan for any finding of deficiency, the director or designee shall continue the program's or facility's current certification for a specific period of time, with a status report to be provided within a specified period of time, not to exceed six months.
a. If the status report indicates no continued areas of noncompliance, the director or designee shall certify the facility for up to three years, subject to the provisions of subdivision C 7 of this section.
b. If the status report indicates any continued area of noncompliance, none of which is a health, welfare, or safety violation, the director or designee shall continue the program's or facility's certification with a status report required within a specific period of time, not to exceed six months.
(1) If the status report indicates no continued areas of noncompliance, the director or designee shall certify the program or facility for up to three years, subject to the provisions of subdivision C 7 of this section.
(2) If any area of noncompliance continues thereafter, the program or facility shall be placed on probationary certification status, subject to the applicable provisions of subdivision C 5 of this section.
c. If the status report indicates any continued area of noncompliance, any of which are health, welfare, or safety violations, the director or designee shall place the program or facility on probationary certification status, subject to the provisions of subdivision C 5 of this section.
4. If the certification audit finds the program or facility in less than 100% compliance and there are health, welfare, or safety violations without an acceptable corrective action plan for any finding of deficiency, the director or designee shall place the program or facility on probationary certification status, subject to the provisions of subdivision C 5 of this section.
5. When a program or facility is placed on probationary certification status, (i) the director or designee shall, taking into account the program's or facility's history of compliance with regulatory requirements, specify the duration of the probationary certification status and (ii) the department and program or facility shall provide a status report to the board at all meetings for the duration of this status.
a. If the status report indicates no continued areas of noncompliance, the director or designee shall certify the facility for up to three years, subject to the provisions of subdivision C 7 of this section.
b. If any area of noncompliance continues thereafter, the director or designee may (i) continue the probationary certification status, (ii) decertify the program or facility as provided for in 6VAC35-20-120, or (iii) take any other action provided for by law.
6. If the certification audit report indicates an immediate threat to the health, welfare, or safety to the residents of a facility, notwithstanding the foregoing provisions, the director or designee may decertify the program or facility as provided for in subsection E of this section and 6VAC35-20-120 or take any other action provided for by law.
7. If a program's or facility's certification status is continued after the initial period expires, the subsequent certification will be retroactive to the date of expiration, unless the director or designee specifically issues a certification with different terms.
D. The director or designee may, at any time, change a program's or facility's certification status upon notification of any noncompliance with any regulatory requirements.
E. Any program or facility, regardless of current certification status, may be decertified or denied certification when:
1. The program or facility has an unacceptable level of compliance as provided in the applicable guidance document with applicable regulatory requirements without acceptable corrective action plans to address deficiencies;
2. The program or facility, if on probation or administrative probation, has not corrected the circumstances that were cited in placing the program or facility on probation or administrative probation to the point that the program or facility would qualify for at least conditional certification;
3. The program's or facility's staff have (i) committed, permitted, aided or abetted any illegal act in the program or facility; (ii) violated child abuse or neglect laws; (iii) deviated significantly from the program or services for which a certificate was issued without prior approval from the director or designee; (iv) failed to correct any such deviations within the time specified by the director or designee; or (v) falsified records; or
4. If the program or facility fails to adequately correct the health, welfare, or safety violation per 6VAC35-20-36.1.
F. Once the director or designee takes certification action, the department shall issue a certificate or letter clearly identifying the program or facility, the certification status, and the period of time during which the certification will be effective unless the certificate is revoked or surrendered sooner. The program or facility administrator shall be informed, briefly and generally, of the factual or procedural basis when any program or facility is issued a probationary certification or is decertified.
G. A program's or facility's status shall remain in effect until subsequent action by the director or designee.
6VAC35-20-110. Notice of board certification
action.
A. Within two weeks of any certification action, a
designated officer or agent of the board the director or designee
shall send formal notice of the board certification action
to:
1. The program or facility administrator;
2. The program's sponsoring locality, commission or private
operator, as applicable or facility's supervisory or governing
authority; and
3. Designated department personnel; and
4. 3. Other state and local authorities, as
appropriate to the specific circumstances.
B. The program shall post the certificate or letter issued
by the board in a conspicuous place in the facility or program offices where it
is visible to the public.
C. All variances approved by the board shall be made
available at the program site to certification audit teams and department
personnel conducting on-site visits.
6VAC35-20-115. Board review of programs and facilities found in noncompliance.
A. When a program or facility is found in noncompliance with one or more regulatory requirements, the audit report with a statement of the director's or designee's certification action taken shall be placed on the agenda at the next regularly scheduled board meeting for oversight and review. The department shall provide the program or facility administrator with notice of the date and time of the board meeting.
B. Whenever a facility is found in noncompliance with one or more regulatory requirements, the board may enter an order, pursuant to § 16.1-309.9 B of the Code of Virginia, prohibiting or limiting the placement of children in the program or facility or take any other action provided by law. In addition to the reports required by this section and 6VAC35-20-100, the board may request the department or the program or facility administrator to provide a status update or report at subsequent board meetings.
6VAC35-20-120. Actions following decertification or denial of certification.
A. When a program or facility operated by the
department is decertified or denied certification, the program administrator
will take whatever actions are necessary to qualify the program for at least a
conditional certification within 90 days. If the program does not qualify for
at least conditional certification within 90 days, the department may
choose to close the program or facility or relocate the residents. The
procedure for such action shall be in compliance with all board, department,
state and federal regulations, policies, or requirements of law. If after 90
days the program has not met the requirements for at least conditional certification
and the department has not closed the program, the board shall recommend to the
Governor and the Secretary of Public Safety appropriate action to be taken
under the circumstances.
1. A report shall be sent to the board within 90 days after the decertification or denial detailing the actions taken by the department to (i) bring the program or facility into compliance with all regulatory requirements and (ii) protect the health, welfare, or safety of the residents.
2. If after 90 days the program or facility has not met the requirements for at least conditional certification and the department has not closed the program or facility, the board shall recommend to the Governor and the Secretary of Public Safety appropriate action to be taken under the circumstances.
B. When a program or facility that is locally, regionally, or privately operated is decertified or denied certification, the board and the department may take any and all of the following actions as appropriate to the circumstances:
1. The sponsor may be required to reorganize the program
structure or take necessary personnel action or any other steps as may be
necessary to qualify the program or facility for at least a conditional
certification within 90 days; and.
2. The Director of the Department director or
designee may, as applicable, reduce or suspend funding to the program or
facility in accordance with §§ 16.1-322.1, § 16.1-309.9
C, or § 66-30 of the Code of Virginia or may withdraw the approval
required by § 16.1-249 A (3) and (4) of the Code of Virginia; and.
3. The board may enter an order, pursuant to § 16.1-309.9 B of the Code of Virginia, prohibiting or limiting the placement of children in the program or facility.
4. The department may not utilize facilities that are decertified or denied certification.
6VAC35-20-150. Mandatory standards Critical
regulatory requirements for juvenile residential facilities.
The following standards, selected from Standards for
Juvenile Residential Facilities (6VAC35-140) and Standards for Interdepartmental
Regulation of Children's Residential Facilities (22VAC42), are designated as
"mandatory" as defined in 6VAC35-20-10. Programs that are subject to
these standards must be in 100% compliance with the following standards in
order to be approved to operate. Failure to comply with these mandatory
standards will result in enforcement actions in accordance with the Code of
Virginia and as set forth in this chapter.
1. 6VAC35-140-190
2. 6VAC35-140-340
3. 6VAC35-140-460
4. 6VAC35-140-660
5. 6VAC35-140-680
6. 6VAC35-140-690
7. 22VAC42-10-190
8. 22VAC42-10-300
9. 22VAC42-10-330 A, B and E
10. 22VAC42-10-490 B and C
11. 22VAC42-10-700 A and B
12. 22VAC42-10-710 B through I
13. 22VAC42-10-720
14. 22VAC42-10-730 A and C
15. 22VAC42-10-800
16. 22VAC42-10-960 C and D
17. 22VAC42-10-970
18. 22VAC42-10-1000.
The board shall designate which regulatory requirements will be defined as critical regulatory requirements.
Part 3 III
VJCCCA Programs and Offices on Youth Program Audits
6VAC35-20-200. Monitoring of VJCCCA programs or offices on youth.
The department shall develop a schedule for monitoring all VJCCCA programs or offices on youth that shall provide for at least one scheduled on-site VJCCCA program or office on youth audit every two years. Whenever deemed necessary or appropriate, additional monitoring visits or reviews may be schdduled.
6VAC35-20-210. VJCCCA programs and offices on youth self-evaluations.
A. All VJCCCA programs and offices on youth shall, in accordance with department procedures or manuals, do the following:
1. Conduct an annual self-evaluation; and
2. Provide the department with a written summary of (i) the self-evaluation process and (ii) the findings of the self-evaluation.
B. The department shall schedule each VJCCCA program or office on youth to conduct the self-evaluation and complete the report.
C. The department shall review each VJCCCA program's or office on youth's self-evaluation report and provide feedback to the VJCCCA program of office on youth.
6VAC35-20-220. VJCCCA program and office on youth audits.
A. During the program audit, the VJCCCA program or office on youth shall demonstrate an acceptable level of compliance, as provided in this chapter, with all (i) statutory requirements; (ii) the approved local plan; (iii) applicable regulatory requirements; and (iv) applicable department procedures or manuals.
B. The burden of proving compliance with the applicable requirements rests with the program staff.
C. Any finding of noncompliance shall be documented.
6VAC35-20-230. VJCCCA program and office on youth audit findings.
A. Upon completion of the VJCCCA program or office on youth audit, the VJCCCA program or office on youth audit findings shall be reported to the VJCCCA program plan contact or office on youth program director along with a copy to the individual with supervisory authority over that individual.
B. The VJCCCA program plan contact or office on youth program director may appeal the VJCCCA program or office on youth audit findings to the director or designee.
C. The department will monitor the progress of the VJCCCA program or office on youth in correcting the identified noncompliance through subsequent documentation and monitoring visits.
6VAC35-20-240. Effect of VJCCCA program or office on youth noncompliance.
A. If the department determines that a VJCCCA program or office on youth is not in substantial compliance, it may suspend all or any portion of the VJCCCA program's or office on youth's funding until there is compliance as provided in subsection C of § 16.1-309.9 of the Code of Virginia.
B. The department shall notify the person responsible for the daily administration of the VJCCCA program or office on youth of the intent to withhold funding prior to such withholding. The notification shall include the justification for the intended withholding and any corrective actions the VJCCCA program or office on youth must complete.
C. The VJCCCA program or office on youth may appeal to the director or designee the withholding of funding, in writing, within 10 business days of receiving notice of the department's intent to withhold the funding.
VA.R. Doc. No. R10-2208; Filed September 11, 2012, 12:04 p.m.
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STATE COUNCIL OF HIGHER EDUCATION FOR VIRGINIA
Proposed Regulation
Title of Regulation: 8VAC40-31. Regulations Governing Certification of Certain Institutions to Confer Degrees, Diplomas and Certificates (amending 8VAC40-31-10, 8VAC40-31-30 through 8VAC40-31-60, 8VAC40-31-100 through 8VAC40-31-200, 8VAC40-31-220, 8VAC40-31-260, 8VAC40-31-280, 8VAC40-31-310, 8VAC40-31-320; adding 8VAC40-31-165, 8VAC40-31-193, 8VAC40-31-195; repealing 8VAC40-31-300).
Statutory Authority: § 23-276.3 of the Code of Virginia.
Public Hearing Information: No public hearings are scheduled.
Public Comment Deadline: December 10, 2012.
Agency Contact: Linda H. Woodley, Director, Private & Out-of-State Postsecondary Education, State Council of Higher Education for Virginia, 101 N. 14th Street, 9th Floor, James Monroe Building, Richmond, VA 23219, telephone (804) 371-2938, FAX (804) 225-2604, or email lindawoodley@schev.edu.
Basis: The State Council of Higher Education for Virginia is granted explicit authority to promulgate regulations in § 23-276.3 of the Code of Virginia, which states: "The State Council of Higher Education for Virginia shall adopt, pursuant to the Administrative Process Act (§ 2.2-4000 et seq.) such regulations as may be necessary to implement the provisions of this chapter. The Council's regulations shall include, but need not be limited to, (i) procedures by which a school may apply for Council approval to confer degrees in Virginia; (ii) measures designed to ensure that all postsecondary schools that are subject to the provisions of this chapter meet minimal academic standards; (iii) protections for students pursuing postsecondary education opportunities in schools subject to the provisions of this chapter; and (iv) information to assist persons who rely on postsecondary degrees, diplomas, and certificates in judging the competence of individuals."
Purpose: The regulations governing private and out-of-state postsecondary institutions are designed to ensure the certified schools meet minimal academic standards, provide protections to students pursuing postsecondary educational opportunities at these schools, and provide information to persons who rely on postsecondary degrees in judging the competence of individuals. Amending, modifying, or deleting the current provisions of 8VAC40-31 will ensure that the certified institutions continue to provide a valuable service to, while protecting the welfare of, the citizens of the Commonwealth of Virginia.
Substance: The proposed regulations will enhance consumer protections for students attending certified schools. They clarify certain expectations for schools that had been unwritten previously. Certified schools will better understand equipment and facility requirements, actions that may result in the suspension or revocation of a school's certificate to operate, and standards regarding administrator and faculty requirements. The State Council of Higher Education (SCHEV) may defer to accreditor standards when such expectations may conflict with SCHEV requirements for accredited postsecondary institutions. The proposed regulations provide guidance to schools when closing to ensure student are allowed to complete their program of study via an approved teach-out arrangement. Finally, the proposed regulations will eliminate the noncompliance fee charged when a school is determined to be out of compliance, but add fees for services rendered by SCHEV staff toward the certified schools.
Issues: These regulations will strengthen or enhance protections of students attending certified postsecondary institutions operating within the Commonwealth of Virginia. Examples of regulatory changes that will strengthen or enhance student protections include: specific expectations of faculty and administrator qualifications, requirement that institutions use GAAP in its financial reporting, clarification of actions that may result in the suspension or revocation of an institution's certificate to operate, and description of requirements of a teach-out arrangement in the event of the closure of a certified school.
The regulatory action poses no disadvantages to the public or to the Commonwealth.
Department of Planning and Budget's Economic Impact Analysis:
Summary of the Proposed Amendments to Regulation. The State Council of Higher Education for Virginia (SCHEV) proposes to 1) revise the fee structure for private and out-of-state postsecondary institutions, 2) introduce required actions if a school loses its accreditation, 3) introduce a presumption of compliance if the standard of the accrediting agency is met, and 4) make numerous other changes to clarify existing requirements.
Result of Analysis. There is insufficient data to accurately compare the magnitude of the benefits versus the costs. Detailed analysis of the benefits and costs can be found in the next section.
Estimated Economic Impact. Private and out-of-state postsecondary institutions are required to obtain recertification every year and submit a recertification fee. The proposed regulations will reduce the recertification fee from $500 to $250 for schools whose annual gross tuition is $50,000 or less; maintain the recertification fee at $1,000 for schools whose annual gross tuition is greater than $50,000 but less than or equal to $100,000; increase the recertification fee from $1,500 to $2,500 for schools whose annual gross tuition is greater than $100,000 but less than or equal to $150,000; maintain the recertification fee at $2,500 for schools whose annual gross tuition is greater than $150,000 but less than or equal to $500,000; increase the recertification fee from $2,500 to $4,000 for schools whose annual gross tuition is greater than $500,000 but less than or equal to $1 million; and increase the recertification fee from $2,500 to $5,000 for schools whose annual gross tuition is greater than $1 million.
The proposed changes to the fee schedule also include elimination of $100/day (not to exceed $1,000) late fee, elimination of $1,000 noncompliance fee for each occurrence; increase of application withdrawal fee from $300 to $500 for career technical and to $1,000 for institutions of higher education; introduction of $100 fee for duplicate certificates; introduction of $100 fee for duplicate agent permits; introduction of $300 application fee for each additional branch; introduction of $100 application fee for each additional site; and introduction of $100 application fee for each additional program or modification to an existing program.
The net fiscal effect of the proposed fee changes is estimated to be a $131,500 increase in fees collected. According to SCHEV, these additional fees will help cover administrative costs. Also, the revised fee schedule is expected to more appropriately align the amount of fees generated with the staff time spent on different types of administrative activities. On the other hand, the postsecondary institutions may see a decrease or increase in their fees depending on the type of administrative action needed from SCHEV.
Another proposed change will introduce a list of required actions if a school loses its accreditation. Under the current rules, exemption from these regulations depends on a school having a valid accreditation. However, the current regulations are silent on what happens if a school loses its accreditation. The proposed regulations will add a list of actions that must be executed following the loss of accreditation which will ensure that the school will be subject to these regulations upon loss of accreditation. This proposed change is expected to reduce the ambiguity in cases where a school loses its accreditation and therefore enhance protections afforded to students.
The proposed changes will also introduce a presumption of compliance if the standard of the accrediting agency is met. Some of the standards such as refund policies established in these regulations may be different than the standards established in other states. SCHEV believes that standards varying from state to state increase the burden on schools operating in multiple states. To simplify compliance with the regulations, the proposed changes will presume that a school is in compliance with these regulations as long as the standard of the accrediting agency is met. It is worth noting that this change will also make the compliance with these regulations to rely on the rules and policies of entities other than SCHEV. Since the rules and policies of accrediting entities can change without SCHEVs approval and/or without going through the regulatory review process, the potential effects of this proposed change are subject to significant uncertainty.
Finally, SCHEV proposes numerous other changes to clarify existing requirements after conducting a periodic review. None of these changes are expected to create a significant economic effect other than improving the clarity of the regulations.
Businesses and Entities Affected. There are 343 private and out-of-state postsecondary institutions certified to operate in Virginia. Approximately 58,600 students enroll in these institutions.
Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth.
Projected Impact on Employment. The proposed regulations are not expected to have a direct impact on employment.
Effects on the Use and Value of Private Property. The proposed regulations may have a small negative or positive impact on the asset value of affected postsecondary institutions as some of the fees are increasing while some other are decreasing affecting profit streams.
Small Businesses: Costs and Other Effects. Of the 343 private and out-of-state postsecondary institutions, 194 are estimated to be small businesses based on gross revenues. The costs and other effects on the small businesses are the same as the ones discussed above.
Small Businesses: Alternative Method that Minimizes Adverse Impact. There is no known alternative method that accomplishes the same goals.
Real Estate Development Costs. The proposed regulations are not expected to have an impact on real estate development costs.
Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPBs best estimate of these economic impacts.
Agency's Response to Economic Impact Analysis: The State Council of Higher Education for Virginia concurs with the economic impact analysis prepared by the Virginia Department of Budget and Planning.
Summary:
The proposed regulations (i) exempt certain programs from State Council of Higher Education action, (ii) provide specific expectations of faculty and administrator qualifications, (iii) require a school to use generally accepted accounting principles in its financial reporting, (iv) clarify actions that may result in the suspension or revocation of a school's certificate to operate, and (v) describe requirements of a teach-out arrangement in the event of the closure of a certified school.
Part I
Definitions; Prohibitions; Advertising
8VAC40-31-10. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Academic credit" means the measure of the total time commitment an average student is expected to devote to learning per week of study. Generally, one unit of credit represents a total of three hours per week of in-class and out-of-class work (Carnegie Unit of Credit). In this context, an hour is defined as 50 minutes. Emerging delivery methodologies may necessitate determining a unit of undergraduate or graduate credit with nontime-based methods. These courses shall use demonstration of competency, demonstration of proficiency, or fulfillment of learning outcomes to ensure these courses are equivalent to traditionally delivered courses.
"Academic-vocational" refers to a noncollege degree school that offers degree and nondegree credit courses at a site in Virginia or via telecommunications equipment located in Virginia.
"Accreditation" means a process of external quality review used by higher education to scrutinize colleges, universities and educational programs for quality assurance and quality improvement. This term applies to those accrediting organizations recognized by the United States Department of Education.
"Adjunct faculty" means professional staff members of businesses, industries and other agencies and organizations who are appointed by institutions and schools on a part-time basis to carry out instructional, research or public service functions.
"Administrative capability" means a branch (i)
maintains or has access to all records and accounts; (ii) designates a named
site director has an administrator; (iii) maintains a local
mailing address; and (iv) offers courses that consist of a large number of
unit subjects that comprise a program of education or a set curriculum large
enough to allow pursuit on a continuing basis; and (iv) provides student
services, including but not limited to financial aid, admissions, career placement
assistance, or registration.
"Agent" means a person who is employed by any institution of higher education or noncollege degree school, whether such institution or school is located within or outside this Commonwealth, to act as an agent, solicitor, procurer, broker or independent contractor to procure students or enrollees for any such institution or school by solicitation in any form at any place in this Commonwealth other than the office or principal location of such institution or school.
"Avocational" means instructional programs that are not intended to prepare students for employment but are intended solely for recreation, enjoyment, personal interest, or as a hobby or courses or programs that prepare individuals to teach such pursuits.
"Branch" means an additional location, operated by a school with an approved existing site. A branch campus must have administrative capability exclusive of the main campus and adequate resources to ensure that the objectives of its programs can be met.
"Career-technical school" means a school that does not offer courses for degree credit at a site in Virginia or via telecommunication equipment located in Virginia; same as academic-vocational school.
"Certificate" or "diploma" means an
award that represents a level of educational attainment at or below the
associate degree level and that is given for successful completion of a
curriculum comprised of two or more courses the credential awarded by a
school upon the successful completion of a program that consists of one or more
technical courses, usually completed in less than 26 weeks, normally with a
single skill objective.
"Certification" means the process of securing authorization to operate a private or out-of-state postsecondary school or institution of higher education and/or degree, certificate, or diploma program in the Commonwealth of Virginia.
"Change of ownership" means the change in power within a school. Change of ownership may include, but is not limited to, the following situations: (i) sale of the school; (ii) merger of two or more schools if one of the schools is nonexempt; or (iii) change from profit to nonprofit or collective.
"CIP code" means the six-digit number assigned to each discipline specialty in the Classification of Instructional Programs (CIP) taxonomy maintained by the National Center for Education Statistics.
"Clock (or contact) hour" means a minimum of 50 minutes of supervised or directed instruction and appropriate breaks.
"College" means any institution of higher education that offers degree programs.
"Conditional certification" means a status that may be granted by the council to a school certified to operate in Virginia to allow time for the correction of major deficiencies or weaknesses identified in the school's administration that are of such magnitude that, if not corrected, may result in the suspension or revocation of the school's certificate to operate. During a period of conditional certification, a school may not enroll new students or confer any degrees, diplomas, or certificates.
"Council" means the State Council of Higher Education for Virginia.
"Course for degree credit" means a single course whose credits are applicable to the requirements for earning a degree, diploma, or certificate.
"Course registration materials" means any official documents provided to students for the purpose of formal enrollment into the school, a specific program, or a certain course.
"Credit" means (i) the quantitative measurement assigned to a course generally stated in semester hours, quarter hours, or clock hours or (ii) the recognition awarded upon successful completion of coursework.
"Credit hour" means a unit by which a school may measure its coursework. The number of credit hours assigned to a traditionally delivered course is usually defined by a combination of the number of hours per week in class, the number of hours per week in a laboratory, and/or the number of hours devoted to externship multiplied by the number of hours in the term. One unit of credit is usually equivalent to, at a minimum, one hour of classroom study and outside preparation, two hours of laboratory experience, or three hours of internship or practicum, or a combination of the three multiplied by the number of weeks in the term. Emerging delivery methodologies may necessitate determining a unit of undergraduate or graduate credit with nontime-based methods. These courses shall use demonstration of competency, demonstration of proficiency, or fulfillment of learning outcomes to ensure these courses are equivalent to traditionally delivered courses.
"Degree" means any earned award at the associate, baccalaureate, master's, first professional, or doctoral level that represents satisfactory completion of the requirements of a program or course of study or instruction beyond the secondary school level and includes certificates and specialist degrees when such awards represent a level of educational attainment above that of the associate degree level.
"Degree program" means a curriculum or course of study that leads to a degree in a discipline or interdisciplinary specialty and normally is identified by a six-digit CIP code number.
"Diploma" or "certificate" means
an award that represents a level of educational attainment at or below the
associate degree level and that is given for successful completion of a
curriculum comprised of two or more courses normally consists of up to
(i) 1,500 clock hours, (ii) 90 quarter hours, or (iii) 60 semester hours.
"Distance education" means education that uses the Internet, one-way transmission and two-way transmission through open broadcast, closed circuit, cable, microwave, broadband lines, fiber optics, satellite, or wireless communications; audio conferencing; or video cassettes, DVDs, and CD-ROMs to deliver instruction to students who are separated from the instructor and to support regular and substantive interaction between student and instructor.
"Existing institution" or "existing postsecondary school" means any postsecondary school that either (i) has been in operation in Virginia for two or more calendar years as of July 1, 2004, and has been certified to operate continuously during that period or (ii) has been approved to operate as a postsecondary school in another state, is accredited by an accrediting agency recognized by the United States Department of Education, and is certified to operate in Virginia.
"Full-time faculty" means a person whose: (i) employment is based upon an official contract, appointment, or agreement with a school; (ii) principal employment is with that school; and (iii) major assignments are in teaching and research. A full-time administrator who teaches classes incidental to administrative duties is not a full-time faculty member.
"Graduate credit hours" means credits hours earned for successful completion of courses beyond the baccalaureate level, generally awarded at the 500 series and above.
"Gross tuition collected" means all fees collected or received on either a cash or accrual accounting method basis for all instructional programs or courses, except for nonrefundable registration and application fees and charges for materials, supplies, and books that have been purchased by, and are the property of, the student.
"In-state institution" means an institution of higher education that is formed, chartered or established within Virginia. An out-of-state institution shall be deemed an in-state institution for the purposes of certification as a degree-granting institution if (i) the institution has no instructional campus in the jurisdiction in which it was formed, chartered, established, or incorporated and (ii) the institution produces clear and convincing evidence that its main or principal campus is located in Virginia.
"Institution of higher education" or
"institution" means any person, firm, corporation, association,
agency, institute, trust, or other entity of any nature whatsoever offering
education beyond the secondary school level that has received certification
from the council and either: (i) offers courses or programs of study or
instruction that lead to, or that may reasonably be understood to be applicable
to, a degree; (ii) operates a facility as a college or university or other
entity of whatever kind that offers degrees or other indicia of level of
educational attainment beyond the secondary school level; or (iii) uses
the term "college" or "university," or words of like
meaning, in its name or in any manner in connection with its academic affairs
or business; or (iv) offers approved courses of degree credit or programs of
study leading to a degree or offers degrees either at a site in Virginia or via
telecommunications equipment located within Virginia.
"Instructional faculty" means a person employed by a school who is engaged in instructional, research, or related activities.
"Site" "Instructional site"
means a location in Virginia where a postsecondary school (i) offers one or
more courses on an established schedule and (ii) enrolls two or more persons
who are not members of the same household. A site may or may not be a branch,
and may or may not have lacks administrative capability.
"Multistate compact" means any agreement involving two or more states to offer jointly postsecondary educational opportunities, pursuant to policies and procedures set forth by such agreement and approved by council.
"New institution" or "new postsecondary school" means any postsecondary school that seeks certification and has been in operation in Virginia for less than two calendar years as of July 1, 2004, and has neither operated in another state as a postsecondary institution nor has been approved to operate in another state as a postsecondary institution.
"Noncollege degree school" means any postsecondary school that offers courses or programs of study that do not lead to an associate or higher level degree at a site in Virginia or via telecommunications equipment located within Virginia. Such schools may be academic-career-technical or career-technical.
"Out-of-state institution" means an institution of higher education that is formed, chartered, established or incorporated outside Virginia.
"Part-time faculty" means a person whose: (i) annual employment is based upon an official contract, appointment, or agreement with a school and (ii) courseload of teaching assignments is of lesser quantity than that expected of a full-time faculty member and/or is of lesser quantity than the school's definition of a full load of courses.
"Postsecondary education" means the provision of formal instructional programs with a curriculum designed primarily for students who have completed the requirements for a high school diploma or equivalent or who are beyond the age of compulsory high school attendance. It includes programs of an academic, career-technical, and continuing professional education purpose, and excludes avocational and adult basic education programs.
"Postsecondary education activities" means researching, funding, designing, and/or conducting instructional programs, classes, or research opportunities, designed primarily for students who have completed the requirements for a high school diploma or its equivalent or who are beyond the age of compulsory high school attendance.
"Postsecondary school" or "school" means any entity offering formal instructional programs with a curriculum designed primarily for students who have completed the requirements for a high school diploma or its equivalent or who are beyond the age of compulsory high school attendance, and for which tuition or a fee is charged. Such schools include programs of academic, career-technical, and continuing professional education, and exclude avocational and adult basic education programs. For the purposes of this chapter, a "postsecondary school" shall be classified as either an institution of higher education as defined in this section or a noncollege degree school, as defined in this section.
"Private postsecondary career school" means any for-profit or nonprofit postsecondary career entity maintaining a physical presence in Virginia providing education or training for tuition or a fee that (i) augments a person's occupational skills, (ii) provides a certification, or (iii) fulfills a training or education requirement in one's employment, career, trade, profession, or occupation. Any entity that offers programs beyond the secondary school level, including programs using alternate modes of delivery, shall be included in this definition so long as tuition and fees from such programs constitute any part of its revenue.
"Program" means a curriculum or course of study in a discipline or interdisciplinary area that leads to a degree, certificate, or diploma.
"Program area" means a general group of disciplines in which one or more degree programs, certificates, or diplomas may be offered.
"Program of study" means a curriculum of two or more courses that is intended or understood to lead to a degree, diploma, or certificate. It may include all or some of the courses required for completion of a degree program.
"Proprietary school" means a privately owned and
managed, profit-making institution of higher education or noncollege degree
school.
"Provisional certification" means a preliminary approval status granted by the council to a new school applicant that has demonstrated substantial compliance with the provisions of this chapter pursuant to § 23-276 of the Code of Virginia. Such a status may include any conditions imposed by the council to ensure compliance with the provisions of this chapter. The provisionally certified school must demonstrate compliance with all conditions within one calendar year of the initial grant of provisional certification.
"Surety instrument" means a surety bond or a clean irrevocable letter of credit issued by a surety company or banking institution authorized to transact business in Virginia adequate to provide refunds to students for the unearned non-Title IV portion of tuition and fees for any given semester, quarter or term and to cover the administrative cost associated with filing a claim against the instrument.
"Teach-out agreement" means the process whereby a closed or closing school undertakes to fulfill its educational and contractual obligations to currently enrolled students.
"Telecommunications activity" means any course
offered by a postsecondary school or consortium of postsecondary schools where
the primary mode of instructional delivery to a site is by
television, videocassette or disc, film, radio, computer, or other
telecommunications devices.
"Unearned tuition" means the portion of tuition charges billed to the student but not yet earned by the institution; the unearned tuition represents future educational services to be rendered to presently enrolled students.
"University" means any institution offering programs leading to degrees or degree credit beyond the baccalaureate level.
"Vocational" refers to a noncollege degree school that offers only noncollege credit courses. Such schools have programs of instruction offering a sequence of courses that are directly related to the preparation of individuals for paid or unpaid employment in current or emerging occupations requiring other than a baccalaureate or advanced degree. Vocational education shall not include instructional programs intended solely for recreation, enjoyment, personal interest, or as a hobby, or courses or programs that prepare individuals to teach such pursuits.
8VAC40-31-30. Advertisements, announcements, and other promotional materials.
A. A school certified to operate by the council in accordance
with this chapter shall include in any print and electronic catalogs and
course registration materials (i) a clear statement that the council has
certified the school to operate in Virginia and (ii) a complete address of the
main campus and all branch locations within Virginia.
B. A school certified to operate by council in accordance with this chapter shall include in all publicity, advertisement, and promotional materials distributed to current or prospective students (i) a clear statement that the council has certified the school to operate in Virginia, (ii) the school's complete name as indicated on the Certificate to Operate, and (iii) the address of at least one branch campus located in Virginia.
C. A school with its main campus not located in Virginia that
has a physical presence in Virginia shall state in its course registration
materials print and electronic catalog distributed in Virginia that:
1. Each course or degree, diploma, or certificate program offered in Virginia is approved by the governing body of the school; and
2. The appropriate state agency, if any, in the state where the main campus of the school is located has granted whatever approval may be necessary for the school to:
a. Offer courses or degree, diploma, or certificate programs at the level for which credit is being awarded for those courses or programs in Virginia; and
b. Offer courses or degree programs outside its state;
c. Offer each course or degree, diploma, or certificate
program being offered in Virginia; and
d. b. Ensure that any credit earned for
coursework offered by the school in Virginia may be transferred to another
of the school's principal location locations outside Virginia
as part of an existing degree, diploma, or certificate program offered by the
school.
D. No advertisement, announcement, or any other material produced by or on behalf of a postsecondary school shall in any way indicate that the school is supervised, recommended, endorsed, or accredited by the Commonwealth of Virginia, by the State Council of Higher Education, or by any other state agency in Virginia.
Part II
Exemptions
8VAC40-31-40. State-supported institutions.
This chapter shall not apply to the institutions named in §§ 23-9.5 and 23-14 of the Code of Virginia, including their branches, divisions, or colleges, or to any state-supported institution of higher education that may be established by the Commonwealth of Virginia in the future.
8VAC40-31-50. Religious institutions.
A. The council shall exempt from the provisions of Chapter 21.1 (§ 23-276.1 et seq.) of Title 23 of the Code of Virginia any school whose primary purpose is to provide religious training or theological education, provided that the school:
1. Awards only degrees, diplomas, or certificates that (i) carry titles that indicate the school's primary purpose plainly upon their face and (ii) state that the school is excluded from the requirement of state certification; and
2. States plainly in its catalogs and other publications that (i) the school's primary purpose is to provide religious training or theological education; (ii) the school's degrees, diplomas, or certificates are so titled and worded; and (iii) the school is exempt from the requirement of state certification.
B. The title of each degree, diploma, or certificate awarded by a school that claims an exemption under the provisions of this section must reflect that the school's primary purpose is religious education.
1. The titles of religious degrees that may be awarded include, but are not limited to, (i) Bachelor of Education in a specific religion, (ii) Master of Divinity, and (iii) Doctor of Sacred Theology.
2. The titles of secular Secular degrees that
may not be awarded in any discipline, including religion, religious education,
and biblical studies,. Titles of secular degrees that may not be
awarded include, but are not limited to, (i) Associate of Arts, (ii)
Associate of Science, (iii) Associate of Applied Science, (iv) Associate of
Occupational Science, (v) Bachelor of Arts, (vi) Bachelor of Science, (vii)
Master of Arts, (viii) Master of Science, (ix) Doctor of Philosophy, and (x) Doctor
of Education.
C. Exemptions granted after July 1, 2002, will be for a maximum of five years. A school wishing to maintain an exempt status must reapply to council at least six months prior to the expiration of the exemption period. An exempt school shall not make claims of "approval," "endorsement," or other such terms by the council in any of its promotional materials. An exempt school shall clearly state in its catalogs and promotional materials that it is exempt from the requirements of state regulation and oversight.
D. A school that awards secular degrees in addition to religious degrees, certificates or diplomas, as defined in subsections A and B of this section, must comply with the provisions for certification for all nonreligious degree programs.
E. Each school requesting full or partial religious
exemption must apply on forms provided by and in a manner prescribed by the
council.
F. The council, on its own motion, may initiate formal or informal inquiries to confirm that this chapter is not applicable to a religious school if the council has reason to believe that the school may be in violation of the provisions of this section.
1. Any school that claims an exemption under subsections A and B of this section on the basis that its primary purpose is to provide religious training or theological education shall be entitled to a rebuttable presumption of the truth of that claim.
2. It shall be the council's responsibility to show that a school is not exempt under subsections A and B of this section.
3. The council assumes no jurisdiction or right to regulate religious beliefs under this chapter.
G. A school whose claim for exemption under subsections A and B of this section is denied by the council shall have the opportunity to appeal the council's action in accordance with 8VAC40-31-70.
8VAC40-31-60. Schools, programs, degrees, diplomas, and certificates exempt from council action.
A. The following activities or programs offered by schools
and not leading to a degree, diploma or certificate otherwise subject to
this chapter shall be exempt from its provisions:
1. Any school subject to the provisions of Chapter 16 (§ 22.1-319 et seq.) of Title 22.1 of the Code of Virginia.
2. Any honorary degree conferred or awarded by a school, as long as the degree (i) does not represent the satisfactory completion of all or any part of the requirements of a program or course of study and (ii) is normally regarded as one that is intended to be commemorative in nature in recognition of an individual's contributions to society. Such degree must state on its face that it is honorary in nature.
3. Any nursing education program offered by a school to the extent that the program is regulated by the Virginia Board of Nursing.
a. The Virginia Board of Nursing is the state agency authorized to license registered nurses and to approve nursing programs with regard to the adequacy of the curricula and resources for preparing students to take the licensing examination.
b. In order to offer a degree in nursing, a school must obtain council certification prior to seeking approval from the Virginia Board of Nursing.
4. Any professional program for professional or occupational training offered by a school to the extent that the program is (i) subject to approval by a regulatory board pursuant to Title 54.1 of the Code of Virginia; or (ii) subject to approval by any other state or federal agency; and (iii) offered by a school that is not seeking degree-granting status such that it would be required to obtain prior council certification.
5. Any course or program of study given by or approved by any professional body, fraternal organization, civic club, or benevolent order principally for continuing or professional education or similar purpose and for which no certificate, degree, or degree credit is awarded.
6. Any course or program of study conducted on a not-for-profit basis by firms or organizations for the training of their own employees only, provided that such instruction is offered at no charge to such employees and with no advertising for open enrollment.
6. 7. Courses or programs offered through
approved multistate compacts, including but not limited to the Southern
Regional Education Board's Electronic Campus.
7. 8. Those courses offered and delivered by a
postsecondary school that is accredited by an entity recognized by the U.S.
Department of Education (USDOE) for accrediting purposes, if such courses are
provided solely on a contractual basis for which no individual is charged
tuition and for which no advertising has been made for open enrollment.
8. 9. Any school, institute or course of
instruction offered by any trade association or any nonprofit affiliate of a
trade association on subjects related to the trade, business or profession
represented by such association.
9. 10. Any public or private high school
accredited or recognized by the Virginia Board of Education that has offered or
may offer one or more courses cited in this chapter if any tuition, fees and
charges made by the school are collected as may be permitted by Title 22.1 of
the Code of Virginia, in the case of a public school, or pursuant to
regulations prescribed by the relevant governing body of such private school.
10. 11. Tutorial instruction delivered and
designed to supplement regular classes for students enrolled in any public or
private school or to prepare an individual for an examination for professional
practice or higher education.
11. 12. Schools of fine arts or other
avocational courses that are conducted solely to further artistic appreciation,
talent, or for personal development or information and programs that prepare
individuals to teach such pursuits.
B. Notwithstanding the provisions of this section, if a school offers any nonexempt programs, the school as a whole, including all of its programs, is subject to the provisions of certification.
B. C. Notwithstanding the exemptions provided
in this section, a school may seek certification for an otherwise exempt
activity or program.
8VAC40-31-100. Role of the council staff.
A. The council staff shall:
1. Provide oversight and administration for purposes of compliance with Chapter 21.1 (§ 23-276.1 et seq.) of Title 23 of the Code of Virginia.
2. Review initial and annual certification requirements for all schools.
3. Perform random and periodic site school
visits to review, inspect and investigate school compliance.
4. Investigate as necessary all noncertified postsecondary school activities operating in the Commonwealth of Virginia.
5. Monitor the accreditation activities of all nonaccredited postsecondary schools operating in the Commonwealth of Virginia.
6. Investigate all written and signed complaints or adverse publicity or any situation that may adversely affect students or consumers.
7. Share with state or federal agencies and appropriate accrediting bodies information regarding the operation or closure of postsecondary schools operating in Virginia.
B. The executive director may delegate other responsibilities as deemed appropriate.
Part IV
Schools for which Certification is Required
8VAC40-31-110. Certain existing approvals and exemptions continued.
A. An institution of higher education that was approved or
authorized to confer degrees at a particular level or to offer one or more
degree programs or program areas may continue to confer those degrees and to
offer those programs until and unless the school's approval or authorization is
revoked by the council in accordance with 8VAC40-31-200 § 23.276.4 of
the Code of Virginia.
B. A Virginia institution that is approved or authorized
to confer degrees by the council, the Virginia Board of Education, or act of
the General Assembly of Virginia and is subject to the conditions of § 23-276.4
C of the Code of Virginia shall be subject to whatever conditions or stipulations
may have been imposed at the time the approval or authorization was granted
If authorization to grant or confer academic or professional degrees is
revoked for an institution otherwise exempt from the requirements of
certification, pursuant to § 23-276.4 C of the Code of Virginia, the
institution will be subject to the provisions of certification in place at the
time of the revocation.
8VAC40-31-120. Certification required for new and existing postsecondary schools.
A. Unless otherwise exempted from these regulations, all instructional offerings of a new or existing postsecondary school in Virginia are subject to this chapter, even when the credit awarded for those offerings may be transferred to a location outside Virginia.
B. A new postsecondary school must become certified to
operate prior to engaging in activities related to postsecondary education via
telecommunications activity, mail correspondence courses, or at a site location
within the Commonwealth.
1. The determination for certification of telecommunications activities or mail correspondence courses may be based upon, but not limited to, physical presence.
2. With the exception of degree programs, academic credit and other courses offered exclusively from outside the Commonwealth of Virginia through individual and private interstate communication, all telecommunications activities and mail correspondence courses are subject to the certification criteria required for all postsecondary schools.
C. Existing postsecondary schools must recertify compliance with certification criteria on an annual basis in order to continue offering postsecondary courses and programs.
D. Postsecondary schools operating branches in Virginia must certify each separately.
E. Noncertified postsecondary schools that seek to establish a postsecondary education consortium, agreement, partnership, or other similar arrangement with an existing certified postsecondary school must meet all requirements for certification as set forth in these regulations and must become certified to operate prior to engaging in postsecondary education activities within the Commonwealth of Virginia.
Part V
Certification Criteria
8VAC40-31-130. Application of certification criteria.
A. The certification criteria shall include, but not be limited to (i) procedures by which a postsecondary school may apply for certification and (ii) criteria designed to ensure that all postsecondary schools that are subject to this chapter meet minimal academic or career-technical standards.
B. Postsecondary schools, by notarized signature of the chief executive officer, will be responsible for certifying total compliance with certification criteria on an initial and annual basis.
C. Postsecondary schools must be in compliance with all local, state, and federal statutes, laws, and codes.
D. Initial site visit. Council staff shall conduct an initial site visit prior to certification. The school shall demonstrate that the facilities conform to all federal, state, and local building codes and that it is equipped with classrooms, instructional and resource facilities, and laboratories adequate for the size of the faculty and student body and adequate to support the education programs offered by the school.
E. Provisional certification. An initial certification applicant may be granted provisional certification for a period not to exceed one year during which time the institution shall meet all conditions established by council for provisional certification. During the period of provisional certification, the school:
1. May advertise, provided that all advertisements and promotional materials state that the school is Provisionally Certified to Operate by the State Council of Higher Education;
2. May recruit and register students, however, may not collect more than an initial nonrefundable fee of $100 from each student;
3. May recruit and hire faculty and staff; and
4. May not offer postsecondary instruction, or confer certificates, diplomas or degrees.
F. If the institution has not complied with all necessary standards and conditions within the period specified by the provisional certification, a new application for certification must be submitted.
8VAC40-31-140. Certification criteria for institutions of higher education.
A. This section shall apply to each institution of higher education for which certification is required.
B. In order to award a degree, the institution's programs must meet the following generally accepted minimum number of semester/quarter credit hours required to complete a standard college degree.
1. An associate degree shall be granted only after the successful completion of at least 60 semester hour or 90 quarter credit hours of collegiate level study.
2. A bachelor's degree shall be granted only after the successful completion of at least 120 semester hours or 180 quarter credit hours of collegiate level study.
3. A master's degree shall be granted only after the successful completion of the requirements for a bachelor's degree and at least 30 semester hours or 45 quarter credit hours of collegiate level study.
4. The doctoral degree shall be granted only after the successful completion of a minimum of three years of full-time graduate study or equivalent (90 semester hours or 135 quarter credit hours) beyond the bachelor's degree, including dissertation credits or research study.
5. Exceptions to these standards must be approved by the council. Proposed programs will be evaluated by the standards of similar programs in public or private postsecondary institutions.
6. A student shall complete a minimum of 30% of course work at the institution in order to be granted a degree from that institution.
7. An institution that awards life or work experience credit shall have its related transfer policy approved by the council. No more than 30% of the credit in a student's degree program may be awarded for life or work experience.
B. C. The course, program, curriculum and
instruction must be of quality, content and length to adequately achieve the
stated objective. Administrators and faculty must be qualified and
appropriately credentialed as follows:
1. For terminal occupational/technical programs leading to the Associate of Occupational Science (A.O.S.) degree, general education courses must compose at least 15% of the total credit hours required for the degree.
2. For terminal occupational/technical programs leading to the Associate of Applied Science (A.A.S.) degree, general education courses shall compose at least 25% of the total credit hours required for the degree.
3. All instructional faculty teaching in a terminal
occupational/technical program leading to the Associate of Applied Science
(A.A.S.) or Associate of Occupational Science (A.O.S.) degree shall:
a. If teaching general education courses, hold a baccalaureate
degree from an accredited college or university, plus at least 18 graduate
credit hours in the discipline being taught.
b. If teaching occupational/technical courses, hold either
(i) an associate degree or (ii) qualify for a faculty appointment by virtue of
scholarly or professional achievements.
4. 3. For all university parallel associate
degree programs, general education courses shall compose at least 25% of the
total credit hours required for the degree, and required courses in the major field
of study shall compose no more than 50% of the total credit hours required for
the degree in a specific discipline.
D. Faculty must be qualified and appropriately credentialed as follows:
1. All instructional faculty teaching in a terminal occupational/technical program leading to the Associate of Applied Science (A.A.S.) or Associate of Occupational Science (A.O.S.) degree shall:
a. If teaching general education courses, hold a baccalaureate degree from an accredited college or university, plus at least 18 graduate credit hours in the discipline being taught.
b. If teaching occupational/technical courses, hold either (i) an associate degree from an accredited college or university in the discipline being taught or (ii) qualify for a faculty appointment by virtue of scholarly or professional achievements.
5. 2. All instructional faculty teaching in a
college-transfer program at the associate level shall:
a. If teaching general education courses or in programs in the liberal arts and sciences, hold a baccalaureate degree from an accredited college or university, plus at least 18 graduate credit hours in the discipline being taught.
b. If teaching occupational/technical courses, hold a
baccalaureate degree from an accredtied college or university in the
discipline being taught or qualify by virtue of professional or scholarly
achievement.
6. 3. All instructional faculty members who
teach in programs at the baccalaureate level shall:
a. Hold a master's degree in the discipline being taught or hold a master's degree in an area other than that being taught with at least 18 graduate semester hours in the teaching discipline from an accredited college or university.
b. Exception to academic preparation requirements for instructional faculty may be made in instances where substantial documentation of professional and scholarly achievements and/or demonstrated competences in the discipline can be shown. The institution must document and justify any such exception.
7. 4. All instructional faculty teaching in a
program at the master's level or higher shall hold a doctoral or other terminal
degree from an accredited college or university. Exception to academic
preparation requirements for instructional faculty may be made in instances
where substantial documentation of professional and scholarly achievements
and/or demonstrated competences in the discipline can be shown. The institution
must document and justify any such exception.
C. E. In addition to the instructor
qualifications in subsection B D of this section, the institution
must certify that:
1. All instructional courses for degree credit require a minimum of 15 contact hours for each semester credit hour or a minimum of 10 contact hours for each quarter credit hour, or the equivalent, and an expectation for additional assignments beyond scheduled instructional activities.
2. The elective and required courses for each program are offered on a schedule and in a sequence that enables both full-time and part-time students to complete the program in a reasonable period of time.
3. The institution's instructional faculty at each site
location holds either full-time, part-time, or adjunct appointments.
4. The institution's academic programs shall ensure that: (i) a properly credentialed and course qualified instructor teaches each course; (ii) a credentialed and course qualified academic advisor is available to meet the concerns of the student, and that a student contact by any method will elicit a response from the advisor within a reasonable timeline; (iii) continual curriculum development and oversight for each major and concentration/track is maintained; and (iv) a program director is named and designated to oversee each program area.
5. A plan is in place that ensures interaction between student and faculty, and among students.
F. All senior administrators must be individually qualified by education, experience, and record of conduct to assure effective management, ethical practice, and the quality of degrees and services offered. The term "senior administrator" generally encompasses individuals who have administrative or managerial authority within an institution. This includes by function, but is not limited to titles of Chief Executive Officer, President, Chancellor, Dean, Provost, or Owner. Boards must collectively demonstrate financial, academic, managerial, and any necessary specialized knowledge, but individual members need not have all of these characteristics. Any controlling organization or owner is subject to this standard.
1. The senior administrators shall hold at least an earned baccalaureate degree from an accredited college or university and shall have sufficient experience to qualify for the position.
2. Each branch of the institution certified to operate in Virginia must designate one person as the branch/campus director.
a. The director must hold a baccalaureate degree from an accredited college or university with at least one year of experience in administration or institutional management.
b. Exception to academic preparation requirements for director may be made in instances where substantial documentation of professional and scholarly achievements and/or demonstrated competences in administration/institutional management can be shown. The institution must document and justify any such exception.
3. Duties of the director include, but are not limited to:
a. Be available at the school location for at least 50% of the operational time each week the school has students present unless an assistant director is available. If the school operates a site in Virginia, a director must be assigned to manage the site's operation; however, the director may designate a person at the site to handle day-to-day administrative matters in his absence.
b. Be responsible for the institution's program or programs, organization of classes, maintenance of the institutional facilities, maintenance of proper administrative records, signing documents pertaining to certification, and all other administrative matters related to certification.
c. Implicitly accepts knowledge of and responsibility for compliance with the Code of Virginia and its implementing regulations including, but not limited to, advertising, records maintenance, annual deadlines, and fee payments.
4. Senior administrators in the positions described in this section must be of good reputation and character. A person is considered of good reputation and character if:
a. The person has no felony convictions related to the operation of a school;
b. The person has not been convicted or pleaded guilty to a crime of fraud or theft under state or federal law within the previous 10 years; and has not had a judgment entered against him or her in his or her individual capacity in a civil action based upon any theory of fraudulent activity within the previous 10 years.
c. The person has not controlled or managed a postsecondary educational institution that has ceased operation during the past five years without providing for the completion of programs by its students or without providing tuition refunds; and
d. The person has not knowingly falsified or withheld information from the council.
5. Administrative personnel must be appropriately experienced, and educated in the field for which they are hired, or receive documented, relevant training within the first year of employment. Administrative personnel generally encompasses individuals that oversee areas as outlined in operational and administrative standards. This includes by function, but is not limited to, titles of financial aid administrator; director of admissions; director of education; business officer or manager; director of student services (including counseling and placement), and the registrar.
8VAC40-31-150. Certification criteria for career-technical schools.
A. The criteria in this section shall apply to each career-technical school for which certification is required.
B. The course, program, curriculum and instruction must be of quality, content and length to adequately achieve the stated objective.
Administrators and faculty C. Faculty, if
teaching technical courses for career-technical programs not leading to a
degree and not offered as degree credit, must either (i) hold an associate
degree related to the area of instruction from an accredited college
or university in the discipline being taught or (ii) possess a minimum of
two years of technical/occupational experience in the area of teaching
responsibility or a related area. The instructor must hold the appropriate
certificate or license in the field, if certification or licensure is required
to work in the field.
C. D. In addition to the instructor
qualifications in subsection B C of this section, the
career-technical school must certify that:
1. Courses of study conform to state, federal, trade, or manufacturing standards of training for the occupational fields in which such standards have been established or conform to recognized training practices in those fields.
2. A plan is in place that ensures interaction between student and faculty, and among students.
E. Administrators must demonstrate their qualifications for their particular responsibilities through educational background, relevant work experience, or record of accomplishments in previous educational work settings. Owners and administrators must be of good reputation and character. A person is considered of good reputation and character if:
1. The person has no felony convictions related to the operation of a school;
2. The person has not been convicted or pleaded guilty to a crime of fraud or theft under state or federal law within the previous 10 years; and has not had a judgment entered against him in his individual capacity in a civil action based upon any theory of fraudulent activity within the previous 10 years;
3. The person has not controlled or managed a postsecondary educational institution that has ceased operation during the past five years without providing for the completion of programs by its students or without providing refunds; and
4. The person has not knowingly falsified or withheld information from the council.
8VAC40-31-160. Certification criteria for all postsecondary schools.
A. The criteria in this section shall apply to all postsecondary schools for which certification is required. With regard to postsecondary schools that are accredited by an accrediting agency recognized by the U.S. Department of Education, the council may apply a presumption of compliance with criteria in this section if the school has complied with an accreditation standard directed to the same subject matter as the criteria. The council need not apply this presumption if the accreditation standard is deficient in satisfying an identifiable goal of the council. The council shall articulate reasons that the accreditation standard is deficient.
B. The postsecondary school shall have a clear, accurate, and comprehensive written statement, which shall be available to the public upon request. The statement minimally shall include the following items:
1. The history and development of the postsecondary school;
2. An identification of any persons, entities, or institutions that have a controlling ownership or interest in the postsecondary school;
3. The purpose of the postsecondary school, including a statement of the relative degree of emphasis on instruction, research, and public service as well as a statement demonstrating that the school's proposed offerings are consistent with its stated purpose;
4. A description of the postsecondary school's activities including telecommunications activities away from its principal location, and a list of all program areas in which courses are offered away from the principal location;
5. A list of all locations in Virginia at which the postsecondary school offers courses and a list of the degree and nondegree programs currently offered or planned to be offered in Virginia;
6. For each Virginia location, and for the most recent
academic year, the total number of students who were enrolled as well as the
total number and percentage of students claiming Virginia residence who
were enrolled in each program offered;
7. For each Virginia location, the total number of students
that completed/graduated from the school as of the end of the last academic
year and the total number and percentage of students claiming Virginia
residence who completed/graduated from each program offered by the school
as of the end of the last academic year;
8. For unaccredited institutions of higher education and
career-technical schools only, the total number of students claiming
Virginia residence who report employment in their field of study within (i)
six months of graduation/completion and (ii) one year of graduation/completion.
C. The postsecondary school or branch shall have a current, written document available to students and the general public upon request that accurately states the powers, duties, and responsibilities of:
1. The governing board or owners of the school;
2. The chief operating officer, president, or director at that
site branch in Virginia;
3. The principal administrators and their credentials at that site
branch in Virginia; and
4. The students, if students participate in school governance.
D. The postsecondary school shall have, maintain, and provide to all applicants a policy document accurately defining the minimum requirements for eligibility for admission to the school and for acceptance at the specific degree level or into all specific degree programs offered by the postsecondary school that are relevant to the school's admissions standards. In addition, the document shall explain:
1. The standards for academic credit or course completion given for experience;
2. The criteria for acceptance of transfer credit where applicable;
3. The criteria for refunds of tuition and fees;
4. Students' rights, privileges, and responsibilities; and
5. The established grievance process of the school, which shall indicate that students should follow this process and may contact council staff to file a complaint about the school as a last resort. The written policy shall include a provision that students will not be subjected to adverse actions by any school officials as a result of initiating a complaint.
E. The postsecondary school shall maintain records on all enrolled students. At a minimum, these records shall include:
1. Each student's application for admission and admissions records containing information regarding the educational qualifications of each regular student admitted that are relevant to the postsecondary school's admissions standards. Each student record must reflect the requirements and justification for admission of the student to the postsecondary school. Admissions records must be maintained by the school, its successors, or its assigns for a minimum of three years after the student's last date of attendance.
2. A transcript of the student's academic or course work at the school, which shall be retained permanently in either hard copy forms or in an electronic database with backup by the school, its successors, or its assigns.
3. A record of student academic or course progress at the school including programs of study, dates of enrollment, courses taken and completed, grades, and indication of the student's current status (graduated, probation, etc.) must be retained permanently. Any changes or alterations to student records must be accurately documented and signed by an appropriate school official.
4. A record of all financial transactions between each individual student and the school including payments from the student, payments from other sources on the student's behalf, and refunds. Fiscal records must be maintained for a minimum of three years after the student's last date of attendance. When tuition and fees are paid by the student in installments, a clear disclosure of truth-in-lending statement must be provided to and signed by the student.
5. A written, binding agreement transacted with another
school or records-maintenance organization with which the school is not
corporately connected for the preservation of students' transcripts by another
institution or agency, as well as for access to the transcripts, in the event
of school closure or revocation of certification in Virginia. State-supported,
public schools originating in a state other than Virginia and operating a
campus within Virginia may choose to enter into a written, binding agreement
regarding student records with the university system of which they are a part
The school shall make the documents referenced in subdivisions 1 through 4
of this subsection available to the student upon request. Academic transcripts
shall be provided upon request if the student is in good financial standing.
F. Each school shall provide or make available to students, prospective students, and other interested persons a catalog, bulletin, brochure, or electronic media containing, at a minimum, the following information:
1. The number of students claiming Virginia residency
enrolled in each program offered.
2. For each Virginia location, the total number of students
that completed/graduated from the school as of the end of the last academic
year and the total number and percentage of students claiming Virginia
residence who completed/graduated from each program offered by the school
as of the end of the last academic year.
3. A description of any financial aid offered by the school including repayment obligations, standards of academic progress required for continued participation in the program, sources of loans or scholarships, the percentage of students receiving federal financial aid (if applicable) and the average student indebtedness at graduation.
4. A broad description, including academic and/or career-technical objectives of each program offered, the number of hours of instruction in each subject and total number of hours required for course completion, course descriptions, and a statement of the type of credential awarded.
5. A statement of tuition and fees and other charges related to enrollment, such as deposits, fees, books and supplies, tools and equipment, and any other charges for which a student may be responsible.
6. The school's refund policy for tuition and fees pursuant to
subsection N of this section and the.
7. The school's procedures for handling complaints, including procedures to ensure that a student will not be subject to unfair actions as a result of his initiation of a complaint proceeding.
7. 8. The name and address of the school's
accrediting body, if applicable.
8. 9. The minimum requirements for satisfactory
completion of each degree level and degree program, or nondegree
certificates/diplomas.
9. 10. A statement that all school officials
accurately represent describes the transferability of any courses
or programs and that indicates whether any of the associate degrees offered
by the school are considered terminal degrees.
10. 11. A statement that ensures that all
school officials accurately represent represents the
transferability of any diplomas or, certificates, or degrees
offered by the school.
11. 12. If the institution offers programs
leading to the Associate of Applied Science or Associate of Occupational
Science degree, a statement that these programs are terminal
occupational/technical programs and that credits generally earned in these
programs are not applicable to other degrees.
12. 13. The academic or course work schedule for
the period covered by the publication.
13. 14. A statement that accurately details the
type and amount of career advising and placement services offered by the
school.
14. 15. The name, location, and address of the
main campus, branch or instructional site operating in Virginia.
G. The school must have a clearly defined process by which the curriculum is established, reviewed and evaluated. Evaluation of school effectiveness must be completed on a regular basis and must include, but not be limited to:
1. An explanation of how each program is consistent with the mission of the school.
2. An explanation of the written process for evaluating each degree level and program, or career-technical program, once initiated and an explanation of the procedures for assessing the extent to which the educational goals are being achieved.
3. Documented use of the results of these evaluations to improve the degree and career-technical programs offered by the school.
H. Pursuant to § 23-276.3 B of the Code of Virginia, the school must maintain records that demonstrate it is financially sound; exercises proper management, financial controls and business practices; and can fulfill its commitments for education or training. The school's financial resources should be characterized by stability, which indicates the school is capable of maintaining operational continuity for an extended period of time. The stability indicator that will be used is the USDOE Financial Ratio (composite score).
1. Institutions of higher education shall provide the results of an annual audited, reviewed or compiled financial statement. Career-technical schools shall provide the results of an annual audited, reviewed or compiled financial statement or the school may elect to provide financial information on forms provided by council staff. The financial report shall be prepared in accordance with generally accepted accounting principles (GAAP) currently in effect. The financial report shall cover the most recent annual accounting period completed.
2. The USDOE composite score range is -1.0 to 3.0. Schools with a score of 1.5 to 3.0 meet fully the stability requirement in subsection I of this section; scores between 1.0 and 1.4 meet the minimum expectations; and scores less than 1.0 do not meet the requirement and shall be immediately considered for audit.
I. Pursuant to § 23-276.3 B of the Code of Virginia, the
school shall have and maintain a surety instrument issued by a surety company
or banking institution authorized to transact business in Virginia that is
adequate to provide refunds to students for the unearned non-Title IV portion
of tuition and fees for any given semester, quarter or term and to cover the
administrative cost associated with the instrument claim. The instrument shall
be based on the non-Title IV funds that have been received from students or
agencies for which the education has not yet been delivered. This figure shall
be indicated in an audited or reviewed financial statements
statement as a Current (non-Title IV) Tuition Liability. A school
certified under this regulation shall be exempt from the surety instrument
requirement if it can demonstrate a USDOE composite financial responsibility
score of 1.5 or greater on its current financial statement; or if it can
demonstrate a composite score between 1.0 and 1.4 on its current financial
statement and has scored at least 1.5 on a financial statement in either of the
prior two years. The school's eligibility for the surety waiver shall be
determined annually, at the time of recertification.
1. Public postsecondary schools originating in a state other than Virginia that are operating a branch campus or instructional site in the Commonwealth of Virginia are exempt from the surety bond requirement.
2. New schools and unaccredited existing schools must complete
at least two five calendar years of academic instruction and/or
certification to qualify for the surety waiver/exemption.
3. Existing schools seeking a waiver of the surety instrument requirement must submit an audited financial statement for the most recent fiscal year end, that reflects the appropriate composite score as indicated in this subsection.
J. The school shall have a current written policy on faculty
accessibility that shall be distributed to all students. The school shall
ensure that instructional faculty are accessible to students for academic or
course advising at stated times outside a course's regularly scheduled class
hours at each site branch and throughout the period during which
the course is offered.
K. All recruitment personnel must provide prospective students with current and accurate information on the school through the use of written and electronic materials and in oral admissions interviews:
1. The school shall be responsible and liable for the acts of its admissions personnel.
2. No school, agent, or admissions personnel shall knowingly make any statement or representation that is false, inaccurate or misleading regarding the school.
L. All programs offered via telecommunications or distance education must be comparable in content, faculty, and resources to those offered in residence, and must include regular student-faculty interaction by computer, telephone, mail, or face-to-face meetings. Telecommunication programs and courses shall adhere to the following minimum standards:
1. The educational objectives for each program or course shall be clearly defined, simply stated, and of such a nature that they can be achieved through telecommunications.
2. Instructional materials and technology methods must be appropriate to meet the stated objectives of the program or course. The school must consider and implement basic online navigation of any course or program, an information exchange privacy and safety policy, a notice of minimum technology specification for students and faculty, proper system monitoring, and technology infrastructure capabilities sufficient to meet the demands of the programs being offered.
3. The school shall provide faculty and student training and support services specifically related to telecommunication activities.
4. The school shall provide for methods for timely interaction between students and faculty.
5. The school shall develop standards that ensure that accepted students have sufficient background, knowledge, and technical skills to successfully undertake a telecommunications program.
M. The school shall maintain and ensure that students have access to a library with a collection, staff, services, equipment and facilities that are adequate and appropriate for the purpose and enrollment of the school. Library resources shall be current, well distributed among fields in which the institution offers instructions, cataloged, logically organized, and readily located. The school shall maintain a continuous plan for library resource development and support, including objectives and selections of materials. Current and formal written agreements with other libraries or with other entities may be used. Institutions offering graduate work shall provide access to library resources that include basic reference and bibliographic works and major journals in each discipline in which the graduate program is offered. Career-technical schools shall provide adequate and appropriate resources for completion of course work.
N. In accordance with § 23-276.3 B of the Code of Virginia,
the school shall establish a tuition refund policy and communicate it to
students. Accredited institutions shall adhere to the tuition refund
requirements of their accrediting body, if required, and if those requirements
describe specific refund terms. Otherwise, accredited institutions, as well as
all other schools, shall adhere to the following tuition refund requirements:
Each school shall establish, disclose, and utilize a system of tuition and
fee charges for each program of instruction. These charges shall be applied
uniformly to all similarly-circumstanced students. This requirement does not
apply to group tuition rates to business firms, industry, or governmental
agencies that are documented by written agreements between the school and the
respective organization.
1. The school shall adopt a minimum refund policy relative to the refund of tuition, fees, and other charges. All fees and payments, with the exception of the nonrefundable fee described in subdivision 2 of this subsection, remitted to the school by a prospective student shall be refunded if the student is not admitted, does not enroll in the school, does not begin the program or course, withdraws prior to the start of the program, or is dismissed prior to the start of the program.
2. A school may require the payment of a reasonable nonrefundable initial fee, not to exceed $100, to cover expenses in connection with processing a student's enrollment, provided it retains a signed statement in which the parties acknowledge their understanding that the fee is nonrefundable. No other nonrefundable fees shall be allowed prior to enrollment.
3. The school shall provide a period of at least three business days, excluding weekends and holidays, during which a student applicant may cancel his enrollment without financial obligation other than the nonrefundable fee described in subdivision 2 of this subsection.
4. Following the period described in subdivision 3 of this subsection, a student applicant (one who has applied for admission to a school) may cancel, by written notice, his enrollment at any time prior to the first class day of the session for which application was made. When cancellation is requested under these circumstances, the school is required to refund all tuition paid by the student, less a maximum tuition fee of 15% of the stated costs of the course or program or $100, whichever is less. A student applicant will be considered a student as of the first day of classes.
5. An individual's status as a student shall be terminated
by the school not later than seven consecutive instructional days after the
last day on which the student actually attended the school. Termination may be
effected earlier by written notice. The date of the institution's
determination that the student withdrew should be no later than 14 calendar
days after the student's last date of attendance as determined by the
institution from its attendance records. The institution is not required to
administratively withdraw a student who has been absent for 14 calendar days.
However, after 14 calendar days, the institution is expected to have determined
whether the student intends to return to classes or to withdraw. In addition,
if the student is eventually determined to have withdrawn, the end of the
12-day period begins the timeframe for calculating the refunds. In the
event that a written notice is submitted, the effective date of termination will
shall be the date the student last attended classes of the
written notice. The school may require that written notice be transmitted
via registered or certified mail, or by electronic transmission provided
that such a stipulation is contained in the written enrollment contract. The
school may require that the parents or guardians of students under 18 years of
age submit notices of termination on behalf of their children or wards. The
school is required to submit refunds to individuals who have terminated their
status as students within 45 days after receipt of a written request or the
date the student last attended classes whichever is sooner. An institution that
provides the majority of its program offerings through distance learning shall
have a plan for student termination, which shall be provided to council staff
for review with its annual or recertification application.
6. In the case of a prolonged illness or accident, death in the family, or other special circumstances that make attendance impossible or impractical, a leave of absence may be granted to the student if requested in writing by the student or designee. No monetary charges or accumulated absences may be assessed to the student during a leave of absence. A school need not treat a leave of absence as a withdrawal if it is an approved leave of absence. A leave of absence is an approved leave of absence if:
a. The school has a formal, published policy regarding leaves of absence;
b. The student followed the institution's policy in requesting the leave of absence and submits a signed, dated request with the reasons for the leave of absence;
c. The school determines that there is a reasonable expectation that the student will return to the school;
d. The school approved the student's request in accordance with the published policy;
e. The school does not impose additional charges to the student as a result of the leave of absence;
f. The leave of absence does not exceed 180 days in any 12-month period; and
g. Upon the student's return from the leave of absence, the student is permitted to complete the coursework he began prior to the leave of absence;
7. If a student does not resume attendance at the institution on or before the end of an approved leave of absence, the institution must treat the student as a withdrawal and the date that the leave of absence was approved should be considered the last date of attendance for refund purposes.
6. 8. The minimum refund policy for a school
that financially obligates the student for a quarter, semester, trimester or
other period not exceeding 4-1/2 calendar months shall be as follows:
a. For schools that utilize an add/drop period, a student who withdraws during the add/drop period shall be entitled to 100% refund for the period.
b. For unaccredited schools and schools that do not utilize an add/drop period:
a. (1) A student who enters school but withdraws
during the first Ľ (25%) of the period is entitled to receive as a refund a
minimum of 50% of the stated cost of the course or program for the period.
b. (2) A student who enters a school but
withdraws after completing Ľ (25%), but less than ˝ (50%) of the period is
entitled to receive as a refund a minimum of 25% of the stated cost of the
course or program for the period.
c. (3) A student who withdraws after completing
˝ (50%), or more than ˝ (50%), of the period is not entitled to a refund.
7. 9. The minimum refund policy for a school
that financially obligates the student for the entire amount of tuition and
fees for the entirety of a program or course shall be as follows:
a. A student who enters the school but withdraws or is terminated during the first quartile (25%) of the program shall be entitled to a minimum refund amounting to 75% of the cost of the program.
b. A student who withdraws or is terminated during the second quartile (more than 25% but less than 50%) of the program shall be entitled to a minimum refund amounting to 50% of the cost of the program.
c. A student who withdraws or is terminated during the third quartile (more than 50% but less than 75%) of the program shall be entitled to a minimum refund amounting to 25% of the cost of the program.
d. A student who withdraws after completing more than three quartiles (75%) of the program shall not be entitled to a refund.
8. 10. The minimum refund policy for a school
that offers its programs completely via telecommunications or distance
education shall be as follows:
a. For a student canceling after the 5th calendar day following the date of enrollment but prior to receipt by the school of the first completed lesson assignment, all moneys paid to the school shall be refunded, except the nonrefundable fee described in subdivision 2 of this subsection.
b. If a student enrolls and withdraws or is discontinued after submission of the first completed lesson assignment, but prior to the completion of the program, minimum refunds shall be calculated as follows:
(1) A student who starts the program but withdraws up to and including completion of the first quartile (25%) of the program is entitled to receive as a refund a minimum of 75% of the stated cost of the course or program for the period.
(2) A student who starts the program but withdraws after completing up to the second quartile (more than 25%, but less than 50%) of the program is entitled to receive as a refund a minimum of 50% of the stated cost of the course or program for the period.
(3) A student who starts the program but withdraws after completing up to the third quartile (more than 50%, but less than 75%) of the program is entitled to receive as a refund a minimum of 25% of the stated cost of the course or program for the period.
(4) A student who withdraws after completing the third quartile (75%) or more of the program is not entitled to a refund.
c. The percentage of the program completed shall be determined by comparing the number of completed lesson assignments received by the school to the total number of lesson assignments required in the program.
d. If the school uses standard enrollment terms, such as semesters or quarters, to measure student progress, the school may use the appropriate refund policy as provided in subdivisions 8 or 9 of this subsection.
9. 11. Fractions of credit for courses completed
shall be determined by dividing the total amount of time required to complete
the period or the program by the amount of time the student actually spent in
the program or the period, or by the number of correspondence course lessons
completed, as described in the contract.
10. 12. Expenses incurred by students for
instructional supplies, tools, activities, library, rentals, service charges,
deposits, and all other charges are not required to be considered in tuition
refund computations when these expenses have been represented separately to the
student in the enrollment contract and catalogue, or other documents, prior to
enrollment in the course or program. The school shall adopt and adhere to
reasonable policies regarding the handling of these expenses when calculating
the refund and shall submit the policies to council staff for approval.
11. 13. For programs longer than one year, the
policy outlined in subdivisions 7 and 8 9, 10, and 11 of this
subsection shall apply separately for each academic year or portion thereof.
12. 14. Schools shall comply with the
cancellation and settlement policy outlined in this section, including
promissory notes or contracts for tuition or fees sold to third parties.
13. 15. When notes, contracts or enrollment
agreements are sold to third parties, the school shall continue to have the
responsibility to provide the training specified regardless of the source of
any tuition, fees, or other charges that have been remitted to the school by
the student or on behalf of the student.
O. The school shall keep official relevant academic
transcripts for all teaching faculty to document that each has the appropriate
educational credentials or other relevant documentation to support reported
experience in the area of teaching responsibility or documentation of.
In the event teaching qualification is based on professional competencies
and/or scholarly achievements, relevant documentation to support reported
experience must be retained by the school.
P. If an internship, externship, or production work is necessary as a part of the school's education program, the school must adhere to the following:
1. When programs contain internships or externships, in any form, the professional training must:
a. Be identified as part of the approved curriculum of the school and be specified in terms of expected learning outcomes in a written training plan.
b. Be monitored by an instructor of record during the entire period of the internship.
c. Not be used to provided labor or replacement for a permanent employee.
d. Be performed according to a specified schedule of time required for training including an expected completion date.
e. If the internship, externship, or production work is part of the course requirement, student may not be considered as a graduate or issued a graduation credential until the internship, externship, or production work has been satisfactorily completed.
2. When receiving compensation for services provided by students as part of their education program, the school must clearly inform customers that services are performed by students by (i) posting a notice in plain view of the public or (ii) requiring students to wear nametags that identify them as students while performing services related to their training.
Q. An institution shall notify council staff of the following occurrences no later than 30 days following said occurrence:
1. Addition of new programs or modifications to existing program. Program names must adhere to the CIP taxonomy maintained by the National Center for Education Statistics.
2. Addition a new branch location or instructional site.
3. Address change of a branch or instructional site in Virginia.
Notification of the above referenced occurrences shall be submitted in writing on forms provided by and in a manner prescribed by the council.
R. An institution shall notify the council of the following occurrences no later than 30 days following said occurrence.
1. Naming of new school president.
2. Naming of new campus or branch director.
3. Naming of person responsible for the regulatory oversight of the institution.
8VAC40-31-165. Equipment and facilities.
A. All buildings where courses of instruction are being conducted must comply with all municipal, county, state, and federal regulations as to fire, safety, health, and sanitation codes or regulations.
B. Lighting, heating, and ventilation must meet institutional needs. The equipment and facilities must be suitable to meet the training specified in the course content for the maximum student enrollment. Where applicable, all equipment, premises, and facilities must be maintained in conformity with state and federal rules and regulations.
C. Equipment shall be maintained in good working order.
Part VI
Certification Requirements
8VAC40-31-170. Initial certification, recertification, and change of ownership.
A. An institution shall not use the term "college" or "university" or words of similar meaning until it has received acknowledgment from council staff that the name is not in violation of 8VAC40-31-20.
1. A school may not use the term "college" in its name unless the school has been approved or seeks to offer programs at the associate degree or above.
2. A school may not use the term "university" in its name unless the school has been approved or seeks to offer programs at the master's degree or above.
3. The council may refuse to approve a name change when, in the council's judgment, the proposed name is likely to mislead the public about the school's identity or the nature of its programs.
1. 4. A school seeking certification must notify
council staff of its proposed name prior to filing such name with the State
Corporation Commission.
2. 5. Prior to receiving certification to
operate, a copy of the school's certificate from the Virginia State Corporation
Commission authorizing it to transact business in the Commonwealth under the
acknowledged name must be submitted to council staff.
B. A school shall not operate in the Commonwealth of Virginia without first receiving certification to operate from the council. Certified schools shall not enter into any agreement to deliver or develop courses or programs of study in Virginia with noncertified postsecondary schools.
C. An out-of-state postsecondary school seeking certification to operate in the Commonwealth of Virginia must secure written documentation from the higher education coordinating and/or approving agency in the state or country in which the school is formed, chartered, established, or incorporated indicating that the school is operating in good standing. If the school formerly operated in another state or country but is not operating there at the time of its application to operate in Virginia, the school must secure from the higher education coordinating and/or approving agency documentation that it closed in good standing and would be allowed to re-establish a postsecondary school in that state or country. These written documentations must be provided to council staff.
D. A school submitting its initial application for certification will have 180 days to complete the application process, after which time its application will be withdrawn by the council and it will receive a refund of the application fee minus the nonrefundable handling charge of $300.
E. All certifications shall expire on the certificate expiration date. Applications for recertification must be submitted to council staff at least 60 days prior to the expiration date of the current certification. If a school allows its certification to operate to expire, the school shall not be eligible for recertification and must submit an application for initial certification including the appropriate application fee.
F. Certification is not transferable. In the event of a change of ownership of a certified school, the new owner or governing body must secure certification. The school must apply for certification within 45 business days following a change of ownership. During the 45-day period and the time required for the council staff to process the new application, up to and not exceeding 90 days, the old certification shall remain in effect provided that no changes have been made in the academic programs, policies, or financial considerations such that the change would constitute or create a violation of council's policies.
1. The following constitutes a change of ownership:
a. Purchase of the entire school or assets of school.
b. Transfer, sale, or purchase of stock, membership, or other direct or beneficial ownership interest by a single entity or by multiple entities in a single transaction or a series of transactions that results in at least 51% change in control.
2. The acquisition of an interest in a certified school by bequest, descent, survivorship, or operation of law does not constitute a change of ownership. However, the person acquiring the ownership interest shall send written notice to the council of such acquisition within 30 days of its closing or validation. The council may determine on a case-by-case basis that other similar transfers may not constitute a change of ownership.
3. New school owners are responsible for maintaining and servicing all student records that were the responsibility of the prior owners of the school.
4. New school owners are responsible for resolving all student complaints that were the responsibility of the prior owners of the school or that were filed with the council prior to the final approval of the change of ownership.
5. New school owners are responsible for honoring the terms of current student enrollment agreements, institutional scholarships, or institutional grants for all students who were enrolled or taking classes at the time the change of ownership took place.
G. Council staff will process all applications, conduct the site visit, and provide notice to applicants within 45 business days of receipt of a completed application package. Approval of the certificate to operate by the council is subject to scheduling of council meetings and other factors affecting the agendas of council meetings.
H. Valid-through dates of Certificates to Operate and due dates of recertification applications are as follows:
1. Out-of-state private degree-granting and career-technical school certificates are valid for one year beginning on September 1 of the calendar year and ending on August 31 of the following calendar year. Applications are due not later than July 2.
2. Out-of-state public institution certificates are valid for one year beginning on September 15 of the calendar year and ending on September 14 of the following calendar year. Applications are due not later than July 16.
3. In-state private nonprofit institution certificates are valid for one year beginning on October 1 of the calendar year and ending on September 30 of the following calendar year. Applications are due not later than August 2.
4. In-state proprietary degree-granting and career-technical school certificates are valid for one year beginning on October 15 of the calendar year and ending on October 14 of the following calendar year. Applications are due not later than August 16.
5. In-state proprietary career-technical school certificates (letters A-D) are valid for one year beginning on November 1 of the calendar year and ending on October 31 of the following calendar year. Applications are due not later than September 2.
6. In-state proprietary career-technical school certificates (letters E-P) are valid for one year beginning on November 15 of the calendar year and ending on November 14 of the following calendar year. Applications are due not later than September 16.
7. In-state proprietary career-technical school certificates (letters Q-Z and others) are valid for one year beginning on December 1 of the calendar year and ending on November 30 of the following calendar year. Applications are due not later than October 2.
8VAC40-31-180. Application requirements.
A. Each certification to operate attests that the school is in compliance with Chapter 21.1 (§ 23-276.1 et seq.) of Title 23 of the Code of Virginia and with this chapter.
B. To apply for certification, the following information must be submitted:
1. A completed certification application form package
provided by council staff.
2. A statement regarding the school's accreditation status, if applicable.
a. Career-technical schools must provide a statement that the courses of study offered conform to state, federal, trade, or manufacturing standards of training for the occupational fields in which such standards have been established or that courses conform to recognized training practices in those fields.
b. Out-of-state institutions and career-technical schools requesting
initial certification must be accredited by an accrediting organization
recognized by the USDOE U.S. Department of Education (USDOE) and must
provide evidence that there has been no determination of limitation,
suspension, revocation, or termination by the USDOE, an accrediting body, or a
state regulatory body against the school within the past five years.
c. Unaccredited in-state institutions that offer courses for degree credit and existing unaccredited out-of-state career-technical schools must submit a plan of action for securing accreditation from an organization recognized by the USDOE, including the name of the accrediting organization and timeframe. In order to remain eligible for certification, the postsecondary school must secure, at a minimum, candidacy status or equivalent within three years of its initial date of certification, and initial accreditation no later than six years after initial certification. Changes to the plan of action timeframe for accreditation will be granted only at the discretion of the council.
d. Unaccredited in-state institutions that undergo a change of ownership during the time period covered by the plan of action for securing accreditation, and that wish to remain eligible for certification under new ownership, will remain on the plan of action timeframe established by the former ownership. This plan of action timeframe begins from the initial date of certification under the former ownership and encompasses the accreditation dates established in the plan of action put into place by the former ownership. No additional time will be granted for obtaining the minimum level of accreditation required of the plan of action due to the change in ownership. Changes to the plan of action timeframe for accreditation will not be granted except at the discretion of the council.
3. A transacted surety instrument form, with the State Council of Higher Education for Virginia named as the obligee.
4. A three-year projected budget that indicates that the school is capable of maintaining operational continuity for up to three years. The budget should demonstrate:
a. That the individual, partnership, or corporation that owns the school is solvent and has the financial capacity to support the operation; and
b. A positive net worth, accompanied by a reasonable debt to equity ratio.
4. 5. A completed checklist, signed and dated,
acknowledging full compliance with certification criteria, along with a
notarized attestation statement signed by the chief executive officer or
equivalent.
5. 6. A company check in the correct,
nonrefundable amount made payable to the Treasurer of Virginia.
6. 7. A copy of the school's certificate, if
incorporated, from the State Corporation Commission providing authorization to
transact business within the Commonwealth.
7. 8. For schools whose main campus is not in
Virginia, a copy of the school's authorization to operate from the state agency
in which its main campus is domiciled. No institution found to be operating
illegally in another state shall be certified to operate in Virginia. An
institution that has lost its legal authority to operate in another state shall
be required to submit written documentation that describes the circumstances
under which its authority was lost and to submit written documentation of the
steps taken to remedy these circumstances before making application for
certification in Virginia.
8. 9. A complete listing of all sites, along
with their addresses, phone numbers (if applicable), and programs offered at
the site.
9. 10. For new postsecondary school applicants,
a signed and notarized statement provided by the president or CEO, that attests
to any previous involvement in the operation of a postsecondary school or any
previous involvement by any administrator, owner, controlling shareholder, or
member of the school's governing board in the operation of a postsecondary
school. At a minimum, this statement shall include the name(s) of previous
schools, the dates of the involvement, the positions held within the school,
the location, the status (open/closed, and accredited/nonaccredited) of the
school, any known violation of federal or state financial aid rules by the
school, any known violations of the policies of an accreditor of the school,
any bankruptcy filings by the school, and conviction or civil penalty levied by
any legal entity in connection with this or any other educational entity in which
he was employed or invested.
10. 11. A complete list of all diploma,
certificate, or degree program offerings during the valid period of the
certification. This list shall consist of the number of hours required for
completion of each program, the Classification of Instructional Programs (CIP)
Code where applicable, and the type of program and degree.
a. New and unaccredited schools must also include their estimated annual enrollment projections and number of students per program; and
b. Schools that are renewing certificates to operate shall include from the previous year the following information:
(1) The number of degrees, certificates, or diplomas conferred
for each program offered by a the school at its Virginia
facility.
(2) The number of students graduating and the number enrolled at its Virginia facility.
c. Unaccredited institutions of higher education and career-technical schools shall include, from follow-up surveys of graduates, the number of students reporting placement in jobs relating to their field of study within six months; and one year of graduation.
C. An existing postsecondary school licensed by any other state agency empowered by the Code of Virginia to license the school, its teachers or curriculum, or both, must become certified prior to enrolling any student into a course for degree credit or program of study. The school must submit an application for certification to operate that shall contain all of the requirements outlined in 8VAC40-31-160 B and C.
D. When a branch campus or site of a school is under
different ownership or different school name than the main campus of the
school, the branch campus or site must submit an application for
certification to operate and must pay a separate certification fee than the
main campus of the school.
E. All proprietary postsecondary schools must provide evidence of a valid business license from the locality within which it seeks to operate. If and when council receives confirmation that a school is operating without the required business license, council shall take action as required by § 23-276.15 of the Code of Virginia.
F. All postsecondary schools seeking certification to operate in Virginia must undergo and successfully complete a site visit prior to the issuance of the certificate to operate.
8VAC40-31-190. Withdrawal of application by a postsecondary school.
A. A school that has submitted an application to the council may withdraw that application without prejudice at any time.
B. Withdrawal of an application by a school shall result in revocation by the council of all authorizations associated with that application that previously had been granted to the school.
C. A school that has withdrawn an application may submit, at any time and without prejudice, a new application to the council in accordance with Part V (8VAC40-31-130 et seq.) of this chapter.
D. A school that withdraws an application prior to receiving
notification of certification will receive a refund of the filing fee minus a
handling charge an administrative processing fee.
8VAC40-31-193. Loss of accreditation.
A. In the event of the loss of accreditation of a certified school, the council will move to revoke the school's Certificate to Operate.
B. The council may waive the revocation provided the school does the following within 30 days of the loss of accreditation:
1. Provide council staff with a copy of the accreditor's letter and full report explaining the reason for the revocation;
2. Provide council staff with a written explanation why the loss of accreditation should not impact the school's certification to operate in Virginia, and any supporting documentation; and
3. Submit to an audit to determine compliance with the council's regulations.
C. Council staff shall consider accreditor's report, the school explanation for the loss of accreditation, and the findings of the audit to prepare a report for the council which recommends:
1. Initiate revocation of the school's Certificate to Operate; or
2. Grant conditional certification, during which time the school may not enroll new students. The terms of the conditional certification will be fixed at staff discretion based upon their findings.
D. The school must maintain a surety instrument during the totality of the conditional certification period.
E. The school shall provide written notification to all enrolled students of its loss of accreditation from its accrediting body and of its provisional certification status with the council.
F. The school shall be eligible to apply for full certification upon meeting the following conditions:
1. Provide documentation that the issues causing the loss of accreditation have been resolved.
2. Demonstrate full compliance to the provisions of this chapter by virtue of an audit during the conditional certification period.
8VAC40-31-195. Suspension or revocation of certificate to operate.
A. The council may (i) suspend, revoke, or refuse to issue or renew a certificate to operate; (ii) modify the certificate to operate to conditional; or (iii) impose a penalty pursuant to § 23-276.12 of the Code of Virginia for any one or combination of the following:
1. Violation of any provision of this chapter pursuant to § 23-276 of the Code of Virginia, the council's minimum standards, or any rule made by the council.
2. Furnishing of false, misleading, deceptive, altered, or incomplete information or documents to the council.
3. Violation of any attestations made in an application for a certificate to operate.
4. Presenting to prospective students, either at the time of solicitation or enrollment, or through advertising, mail circulars, or telephone solicitation, misleading, deceptive, false, or fraudulent information relating to any program, employment opportunity, or opportunities for enrollment after entering or completing programs offered by the school.
5. Presenting to prospective students, either at the time of solicitation or enrollment, or through advertising, mail circulars, or telephone solicitation, misleading, deceptive, false, or fraudulent information relating financial aid offered by the school.
6. Failure to provide or maintain premises or equipment for offering programs in a safe and sanitary condition as required by law or by state regulations or local ordinances.
7. Refusal by an agent while performing duties common to agents to display his agent's permit upon demand of a prospective student or council staff member or other interested persons.
8. Failure to maintain financial resources adequate to conduct satisfactorily the courses of instruction offered or to retain an adequate, qualified instructional staff.
9. Offering training or programs other than those acknowledged by the council.
10. Illegal discrimination in the acceptance of students.
11. Failure to provide the council or council staff within a reasonable timeframe any information, records, or files pertaining to the operation of the school or recruitment and enrollment of students or in response to an audit.
12. Employment of enrolled students in any commercial activity from which the school derives revenue without reasonable remuneration to the students unless the students are engaging in activities that are an integral component of their educational program.
13. Engaging in or authorizing other conduct that constitutes fraudulent or criminal activity.
B. A school is entitled to exercise its rights under the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) prior to the denial, suspension, or revocation of its certificate to operate, pursuant to 8VAC40-31-220.
8VAC40-31-200. Audit requirements.
A. All certified postsecondary schools shall be subject to
random periodic audits. The purpose of such audit shall be to verify compliance
with certification criteria § 23.276 of the Code of Virginia and the
provisions outlined in this chapter.
B. At the discretion of council staff, an audit review committee shall consist of the executive director or designee and may:
1. Include individuals with the experience in the disciplines in which the school provides instruction; and/or
2. Consist of council staff.
C. Audits shall be random or triggered by, but not limited to, the following events:
1. Council staff concerns based on questionable information in the initial or recertification application.
2. Greater than average volume and frequency of negative student complaints or adverse publicity.
3. Difficulty securing accreditation within the specified time period.
4. Adverse action by the USDOE or the school's accrediting agency.
5. A USDOE composite financial responsibility score of less than 1.0.
D. Following an audit of the school, council staff shall prepare a report with recommendations for review by the council. If a school is found noncompliant, the council may:
1. Determine no action is necessary and have the report filed;
2. Change the status to probationary conditional
certification and require remedial action(s) within a specified timeframe;
3. Revoke or suspend certification Initiate
suspension or revocation of the school's certificate to operate.
Part VII
Procedures for Conducting Fact-Finding Conferences and Hearings
8VAC40-31-220. Procedural rules for the conduct of fact-finding conferences and hearings (§§ 2.2-4019 through 2.2-4030 of the Code of Virginia).
A. Fact-finding conference; notification, appearance, conduct.
1. Unless emergency circumstances exist that require immediate
action, no certification application shall be denied, suspended or revoked
no order shall be issued to refuse to grant a certification, to revoke or
suspend a prior certification, or to add conditions to any certification
except upon written notice stating the proposed basis for such
action and the time and place for a right of the affected parties to
appear at an informal fact-finding conference.
2. If a basis exists for a refusal to certify or a
suspension or a revocation of a certificate to operate If the council
determines that grounds exist to refuse to grant a certification, to revoke or
suspend a prior certification, or to add conditions to any certification,
the council shall notify, by certified mail or by hand delivery provide
written notice of its intention to take the proposed action to the
interested parties at the address of record maintained by the council. The
notice shall be sent by certified mail, return receipt requested, and shall
state the reasons for the proposed action.
3. Notification shall include the basis for the proposed
action and afford provide information about informal fact-finding
conference procedures, including the rights of interested parties the opportunity
to present written and oral information to the council that may have a bearing
on the proposed action at a fact-finding conference to (i) reasonable
notice thereof; (ii) appear in person or by counsel or other qualified
representative before the agency or its subordinates, or before a hearing
office for the informal presentation of factual data, argument, or proof; (iii)
have notification of any contrary fact bases or information in the possession
of the agency that can be relied upon in making an adverse decision; (iv)
receive a prompt decision; and (v) be informed briefly and generally in
writing, of the factual or procedural basis for an adverse decision. If no
withdrawal occurs, a an informal fact-finding conference shall be
scheduled at the earliest mutually agreeable date, but no later than 60 days
from the date of the notification. A school party wishing to
waive its right to a conference and proceed directly to formal hearing
shall notify the council at least 14 days before the scheduled conference.
4. If after consideration of information presented during an
informal fact-finding conference, the council determines that a basis
for action still exists, the interested parties shall be notified in writing
within 60 days of the informal fact-finding conference, via certified or
hand-delivered mail, of the decision, the factual or procedural basis
for the decision, and the right to appeal the decision by requesting
a formal hearing. Parties to the conference may agree to extend the report
deadline if more time is needed to consider relevant information.
5. Parties may enter into a consent agreement to settle the issues at any time prior to a formal hearing. If one party desires to enter into a consent agreement prior to the informal fact-finding conference or the formal hearing, as the case may be, then it shall give reasonable notice to the other party prior to the conference or hearing. A party's delay may result in denial of the proposed consent agreement.
6. Following execution of the consent agreement, council staff may make frequent attempts to determine whether the terms of the consent agreement are being implemented and whether its intended results are being achieved.
B. Hearing; notification, appearance, conduct.
1. If, after a the council renders a decision
following an informal fact-finding conference, a sufficient basis still
exists to deny, suspend or revoke a certification, interested parties shall be
notified by certified mail or hand delivery of the proposed action and of the
opportunity for a hearing on the proposed action. If an organization
interested party desires to request appeal the decision by
requesting a formal hearing, it shall notify the council within 14
days of receipt of a report on the conference the date of receipt of
the certified letter. Parties may enter into a consent agreement to
settle the issues at any time prior to, or subsequent to, an informal
fact-finding conference.
2. Parties to a formal hearing shall be given reasonable notice of the (i) time, place, and nature thereof; (ii) basic law under which the council contemplates its possible exercise of authority; and (iii) matters of fact and law asserted or questioned by the council.
2. 3. If an interested party or representative
fails to appear at a hearing, the hearing officer may proceed in the
party's/representative's absence and make a recommendation.
3. Oral and written arguments may be submitted to and
limited by the hearing officer. Oral arguments shall be recorded in an
appropriate manner.
4. The formal hearing shall be presided over by a hearing officer selected from a list prepared by the Executive Secretary of the Supreme Court and maintained in the office of the Executive Secretary of the Supreme Court.
5. In the formal hearing, the parties shall be entitled to be accompanied and represented by counsel, to submit oral and documentary evidence and rebuttal proofs, and to conduct cross-examination. The presiding officer at the formal hearing may (i) administer oaths and affirmations; (ii) receive probative evidence, exclude irrelevant, immaterial, insubstantial, privileged or repetitive proofs, rebuttal, or cross-examination, rule upon offers of proof, and oversee a verbatim recording of the evidence; (iii) hold conferences for the settlement or simplification of issued by consent; (iv) dispose of procedural requests; and (v) regulate and expedite the course of the hearing.
C. Hearing location. Hearings before a hearing officer shall be held, insofar as practical, in the county or city in which the school is located. Hearing officers may conduct hearings at locations convenient to the greatest number of persons or by telephone conference, videoconference or similar technology in order to expedite the hearing process.
D. Hearing decisions.
1. Recommendations of the hearing officer shall be a part of the record and shall include a written statement of the hearing officer's findings of fact and recommendations as well as the reasons or basis for the recommendations. Recommendations shall be based upon all the material issues of fact, law or discretion presented on the record.
2. Prior to the recommendation of the hearing officer, the parties concerned shall be given opportunity, on request, to submit in writing for the record (i) proposed findings and conclusions and (ii) a statement of reasons therefore. On request, opportunity shall be afforded for oral arguments to the hearing officer or to the council as it may permit in its discretion. The council shall receive and act on exceptions to the recommendation of the hearing officer prior to rendering a decision.
2. 3. The council shall review the
recommendation of the hearing officer and render a decision on the
recommendation within 30 days of receipt. The decision shall cite the
appropriate rule, relief or denial thereof as to each issue be served on
the parties concerned; become a part of the record; and briefly state the
findings, conclusions, reasons, or basis therefore upon the evidence presented
by the record and relevant to the basic law under which the council is
operating, together with the appropriate order, certificate to operate, or
denial thereof.
E. Agency representation. The executive director's designee may represent the council in an informal conference or at a hearing.
8VAC40-31-260. Fees.
A. All fees collected by council staff will be deposited in the State Treasury.
B. All fees are nonrefundable with the exception of withdrawal of an application in which case all fees will be refunded minus a reasonable handling charge of $300.
C. Fees must be paid with a company check and made payable to the Treasurer of Virginia.
D. The annual fee is based on the annual gross tuition received by each administrative branch of institutions certified to operate in Virginia. For out-of-state institutions certified to operate in Virginia, annual gross tuition means income generated from students enrolled at Virginia locations. The flat fee schedule is as follows:
|
New school orientation session, per person |
$150 |
|
Initial fee for all new institutions of higher education |
$6,000 |
|
Initial fee for all new career-technical schools |
$2,500 |
|
Annual fee for all unaccredited institutions of higher
education |
$6,000 |
|
Annual fee for all unaccredited out-of-state career-technical schools |
$2,500 |
|
Renewal fee for all postsecondary schools with an annual
gross tuition collected |
|
|
Renewal fee for all postsecondary schools with an annual
gross tuition collected greater than |
|
|
Renewal fee for all postsecondary schools with an annual
gross tuition collected greater than |
|
|
Renewal fee for all postsecondary schools with an annual
gross tuition collected |
|
|
Renewal fee for all postsecondary schools with an annual gross tuition collected greater than or equal to $1,000,000, as recorded on most recent financial statement |
$5,000 |
|
|
|
|
Returned check fee |
$35 |
|
|
|
|
Initial or renewed exemption application/request for name
acknowledgement/agent registration |
$300 |
|
Nonrefundable |
|
|
Request duplicate certificate to operate due to school name or address change |
$100 |
|
Request duplicate agent permit, to replace lost/stolen/misplaced permit |
$100 |
|
Application fee for each additional branch |
$300 |
|
Application fee for each additional site |
$100 |
|
Application fee for each additional program or modification to an existing program |
$100 |
E. If a late fee is assessed, the school must submit the
assessed fee, required certification fee and all required certification
documents prior to the issuance of the Certificate to Operate.
F. E. A school that submits a payment that is
returned for any reason must resubmit the required payment, any applicable late
fee, and the assessed returned check fee of $35 via a money order or certified
bank check only.
8VAC40-31-280. Closure of a postsecondary school.
A. The council, on its own motion, may authorize a
postsecondary school whose application for certification to operate is denied
in accordance with 8VAC40-31-200 to continue to offer instruction for degree
credit to all currently enrolled students until the end of the semester,
quarter, or other academic term during which certification is denied.
B. The council, on its own motion, may authorize a school whose certification is revoked in accordance with 8VAC40-31-200 to offer the coursework necessary for all currently enrolled students to complete their programs and to award degrees, certificates or diplomas to those students, provided that the school:
1. Offers degree coursework only to those students who
were enrolled at the time the school's certification was revoked; and
2. Offers all necessary coursework on a schedule that permits all currently enrolled students to complete their programs in a reasonable period of time.
C. When a school decides to voluntarily cease operations, it must immediately inform the council of the following:
1.The planned date for the termination of operations.
2. The planned date and location for the transfer of student records.
3. The name and address of the organization to receive and manage the student records and the name of the official who is designated to manage transcript requests. The organization designated for the preservation of the student records may not be corporately connected to the closing school. The council may receive student records, subject to subsection D of this section, if an appropriate depository has not been established.
4. Arrangements for the continued education of currently enrolled students via teach-out agreement or other practical solution. The teach-out plan shall consist of, but not be limited to, the following:
a. Identification of the school's official date of closure;
b. A listing by program of students enrolled at the time of the school's closure including addresses, telephone numbers, and estimated graduation dates for each student;
c. The status of all current refunds due and balances owed;
d. A listing of those students who had prepaid for any portion of their training and a calculation of the total amount that was prepaid by each student;
e. Signed agreement with one or more local educational institutions able to provide adequate education to all students in all programs; and
f. Procedures for awarding graduates their certificates, diplomas, or degrees.
5. A roster showing the name, address, and current academic
status of all enrolled students A listing of all former students,
including full name, last known mailing address, e-mail address, program of
study, dates of enrollment, date of completion, and credential awarded, if
applicable.
D. In the event of school closure or revocation of
certification, the council may facilitate the transfer of student records to
the designated repository the school shall make provisions for
transferring all official records of students to the council office, or secure
a location that will maintain the records permanently, notify all students of
this location and how they may obtain official copies. The records transferred
to the council office, or other depository, shall include the academic records
of each student, which should include:
1. Academic transcripts showing the basis of admissions, transfer credits, courses, credits, grades, graduation authorization, and student name changes for each student;
2. Transcripts of financial aid for each student, if maintained;
3. Foreign student forms for foreign students;
4. Veterans Administration records for veterans;
5. Copies of degrees, diplomas, and certificates awarded, if maintained;
6. One set of course descriptions for all courses offered by the school; and
7. Evidence of accreditation, if any, during the years covered by transcripts.
E. The council shall be responsible for securing and
preserving student records until the designated repository accepts the records.
The school shall notify all enrolled students of the pending closure
immediately, describing their financial obligations as well as their rights to
a refund or adjustment, and provisions made for assistance toward completion of
their academic programs, whether in the institution that is closing, or by
contract with another institution or organization to teach out the educational
programs. Such agreements must be approved by the council.
F. The council shall seek the advice of the Career College Advisory Board on matters relating to closures of its member schools.
8VAC40-31-300. Freedom of Information Act to apply. (Repealed.)
All materials submitted by a school in its application for
approval or in response to a request by the council for pertinent information
shall be subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.
of the Code of Virginia) and shall be available for public inspection in
accordance with the provisions of § 2.2-3704 of the Code of Virginia.
8VAC40-31-310. Student Tuition Guaranty Fund.
A. The executive director shall appoint in writing a Director of the Student Tuition Guaranty Fund.
B. The purpose of the fund is to reimburse tuition and
fees due students at schools previously approved under § 22.1-321 of the
Code of Virginia certified to operate when the school ceases to
operate.
C. Schools seeking initial certification after July 1, 2004, shall not be required to pay into the fund. All other schools that were certified to operate prior to July 1, 2004, under the provisions of § 22.1-321 of the Code of Virginia, shall be subject to the provisions valid at the time of its recertification.
D. A claim shall be made against the fund only if it arises
out of the cessation of operation by a school at which the student was enrolled
or was on an approved leave of absence at the time of the closure and the
closure prevented the student from completing the program of study for which he
enrolled on or after July 1, 2004. If the school holds a surety bond or
other guaranty instrument, filing a claim against the guaranty instrument shall
be the initial response. Claims shall be filed with the director of the
fund on forms prescribed by the council within three years after cessation of
operation by the school. Claims filed after that period shall not be
considered. Within a reasonable time after receipt of a claim, the director
shall give the school or its owners, or both, notice of the claim and an
opportunity to show cause, within 30 days, why the claim should not be
reimbursed in whole or part. The director may cause to be made other
investigation of the claim as he deems appropriate or may base his
determination, without further investigation, upon information contained in the
records of the council. Claims shall be limited to the unearned tuition
paid to the closing institution for which the student received no educational
instruction.
E. The director's determination shall be in writing and
shall be mailed to the claimant and the school or its owners, or both, and
shall become final 30 days after the receipt of the determination unless either
the claimant or the school, or its owners, within the 30-day period, files with
the director a written request for a hearing. Upon request, a hearing shall be
held and, subject to the authority of the director to exclude irrelevant or
other inappropriate evidence, the claimant and the school or its owners may
present such information as these parties deem pertinent. The director
will attempt to secure a teach-out agreement as outlined in 8VAC40-31-280 C 4
prior to issuing a refund of the unearned tuition to a student unable to
complete a program of study due to a school closure. If a teach-out agreement
cannot be secured, the director shall proceed with a claim against the closed
school's surety instrument.
F. The executive director shall administer the fund upon the following basis:
1. The assets of the fund may not be expended for any purpose other than to pay bona fide claims made against the fund;
2. All payments into the fund shall be maintained by the state comptroller who shall deposit and invest the assets of the fund in any savings accounts or funds that are federally or state insured, and all interests or other return on the fund shall be credited to the fund;
3. Payment into the fund shall be made in the form of a company or cashier's check or money order made payable to the "Student Tuition Guaranty Fund."
G. When a claim is allowed by the director, the executive director, as agent for the fund, shall be subrogated in writing to the amount of the claim and the executive director shall thereby be authorized to take all steps necessary to perfect the subrogation rights before payment of the claim. Refunds will be made, first, to the lender issuing student financial aid or the guarantor of the loan, and second, to the student. In the event no financial aid was involved, then refunds will be made to the student.
8VAC40-31-320. Agent registration.
A. Agents representing one or more noncertified accredited postsecondary schools must:
1. Register with the council prior to soliciting in Virginia; and
2. Pay an annual fee of $300 per school represented.
B. Agents representing noncertified unaccredited postsecondary schools shall not conduct business in Virginia.
C. Agents operating instructional sites in Virginia must seek council certification.
D. Agent permits expire on December 31 of each calendar year. An application for an agent permit renewal must be submitted to council staff at least 60 days prior to the expiration date.
E. Refusal by an agent to display his agent's permit upon request of a prospective student, council staff member, or other interested person may result in the revocation of the agent permit.
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 (8VAC40-31)
Institutional Certification Application Form: Religious
Exemption (rev. 10/04).
Institutional Certification Application Form (rev. 4/06).
Institutional Certification Checklist for Institutions of
Higher Education (rev. 10/04).
Institutional Certification Checklist for Postsecondary
Schools (rev. 4/06).
Enrollment Data Worksheet (eff. 8/06).
Institutional Sites Listing (rev. 4/06).
Acknowledgement of Prior Postsecondary Involvement (rev.
11/04).
Surety Instrument Calculation Worksheet (rev. 4/06).
Surety Bond (rev. 4/06).
Sample Clean Irrevocable Letter of Credit; Surety
Information and Bond Checklist (rev. 4/06).
Certificate, Diploma, or Degree Program Information (rev.
4/06).
Chart of Accounts; Income Statement; Balance Sheet.
Change of Location Application.
Change of Ownership Application.
Buyer/Seller Affidavit and Certification.
Statement of Responsibility of Refund Liability.
Report on the Closing of a Campus.
Institutional Change of Name Application.
Private Nonprofit School Financial Composite Score
Calculation Worksheet.
Proprietary School Financial Composite Score Calculation
Worksheet.
Acknowledgement of Prior Postsecondary Involvement (rev. 3/07).
Administrator Qualification (7/08).
Application for Agent Permit (9/09).
Certificate, Diploma, or Degree Program Information (rev. 2/12).
Change of Location Application (rev. 3/07).
Change of Ownership Application (rev. 3/07).
Chart of Accounts (rev. 3/07).
Directions for Preparing School Plan Report (undated).
Institutional Certification Application Form (rev. 8/08).
Institutional Certification Application Form: Religious Exemption (rev. 7/11).
Institutional Certification Checklist for Postsecondary Schools (rev. 7/07).
Institutional Change of Name Application (3/07).
Institutional Sites Listing (rev. 1/12).
Instructions for Completing Institutional Certification Applications (rev. 8/08).
Instructor Qualification (7/08).
Notification of Program Modification (rev. 2/12).
Program Notification (rev. 2/12).
Projected Accounting Budget (rev. 7/07).
Proprietary School Financial Composite Score Calculation Worksheet (undated).
Report on the Closing of a Campus (rev. 3/07).
Request for Name Acknowledgement (rev. 3/07).
School Catalog Checklist (rev. 8/08).
Sample Irrevocable Letter of Credit (rev. 3/07).
Surety Instrument Calculation Worksheet (rev. 2/11).
VA.R. Doc. No. R09-1980; Filed September 6, 2012, 3:42 p.m.
Final Regulation
REGISTRAR'S NOTICE: The University of Mary Washington is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4002 A 6 of the Code of Virginia, which exempts educational institutions operated by the Commonwealth.
Title of Regulation: 8VAC55-10. Prohibition of Weapons (adding 8VAC55-10-10, 8VAC55-10-20, 8VAC55-10-30).
Statutory Authority: § 23-91.40 Code of Virginia.
Effective Date: September 26, 2012.
Agency Contact: Mark Sandor, Agency Regulatory Coordinator, University of Mary Washington, Brent Hall, 1301 College Ave, Fredericksburg, VA 22401, telephone (540) 286-8121 or email msandor@umw.edu.
Summary:
This action implements the prohibition of weapons on University of Mary Washington property.
CHAPTER 10
PROHIBITION OF WEAPONS
8VAC55-10-10. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Police officer" means law-enforcement officials appointed pursuant to Article 3 (§ 15.2-1609 et seq.) of Chapter 16 or Chapter 17 (§ 15.2-1700 et.seq.) of Title 15.2, Chapter 17 (§ 23-232 et seq.) of Title 23, Chapter 2 (§ 29.1-200 et seq.) of Title 29.1, or Chapter 1 (§ 52-1 et seq.) of Title 52 of the Code of Virginia or sworn federal law-enforcement officers.
"University property" means any property owned, leased, or controlled by the University of Mary Washington.
"Weapon" means any (i) pistol, revolver, or other weapon designed or intended to propel a missile of any kind; (ii) any dirk, bowie knife, switchblade knife, ballistic knife, razor slingshot, spring stick, metal knucks, or blackjack; (iii) any flailing instrument consisting of two or more rigid parts connected in such manner as to allow them to swing freely, which may be known as nun chahka, nun chuck, nunchaku, shuriken, or fighting chain; or (iv) any disc, of whatever configuration, having at least two points or pointed blades that is designed to be thrown or propelled and that may be known as throwing star or oriental dart.
8VAC55-10-20. Possession of weapons prohibited.
Possession or carrying of any weapon by any person, except a police officer, is prohibited on university property in academic buildings, administrative office buildings, student residence buildings, dining facilities, or athletic facilities or while attending sporting, entertainment or educational events. Entry upon the aforementioned university property in violation of this prohibition is expressly forbidden.
8VAC55-10-30. Person lawfully in charge.
In addition to individuals authorized by university policy, University of Mary Washington police officers are lawfully in charge for the purposes of forbidding entry upon or remaining upon university property while possessing or carrying weapons in violation of this prohibition.
VA.R. Doc. No. R13-3385; Filed September 24, 2012, 10:31 a.m.
w –––––––––––––––––– w
STATE AIR POLLUTION CONTROL BOARD
Final Regulation
Titles of Regulations: 9VAC5-50. New and Modified
Stationary Sources (Rev. H05) (amending 9VAC5-50-240, 9VAC5-50-250,
9VAC5-50-260).
9VAC5-80. Permits for Stationary Sources (Rev. H05) (amending 9VAC5-80-1100 through 9VAC5-80-1140, 9VAC5-80-1150 through 9VAC5-80-1220, 9VAC5-80-1240 through 9VAC5-80-1300; adding 9VAC5-80-1105, 9VAC5-80-1255; repealing 9VAC5-80-1320).
Statutory Authority: § 10.1-1308 of the Code of Virginia; federal Clean Air Act (§§ 110, 112, 165, 173, 182, and Title V) 40 CFR Parts 51, 61, 63, 70, and 72.
Effective Date: November 7, 2012.
Agency Contact: Gary Graham, Department of Environmental Quality, P.O. Box 10009, Richmond, VA 23240, telephone (804) 698-4103, FAX (804) 698-4510, or email gegraham@deq.virginia.gov.
Background:
The regulation applies to the construction or reconstruction of new stationary sources or modifications (physical or operational changes) to existing ones. Exemptions are provided for smaller facilities. With some exceptions, the owner must obtain a permit from the agency prior to the construction or modification of the source. The owner of the proposed new or modified source must provide information as needed to enable the agency to conduct a preconstruction review in order to determine compliance with applicable control technology and other standards and to assess the impact of the net emissions from the facility on air quality. The regulation also provides the basis for the agency's final action (approval or disapproval) on the permit depending upon the results of the preconstruction review. The regulation provides a sourcewide perspective to determine applicability based upon the net emissions changes due to or directly resulting from the modification (physical or operational change at an existing stationary source). Procedures for making changes to permits are included. There are provisions that allow the use of a general permit. The regulation also allows consideration of additional factors for making Best Available Control Technology (BACT) determinations for sources subject to minor new source review.
Summary:
The primary change being made to the program is to convert from a permit applicability approach for modifications that looks at the net emissions increase due to or directly resultant from the physical or operational changes from all affected units to an approach that only looks at emissions increases from new and modified emissions units. Currently, applicability is based on the net emissions increase based on all the sourcewide emissions changes due to or directly resultant from the physical or operational change. The program would base permit applicability on the emissions increases from only those emissions units that undergo a physical or operational change in the project.
Secondary changes include (i) changes to the way that BACT determinations will be made, (ii) changes to the way that NSPS-affected facilities are exempted, (iii) removal of transportable engines from a nonroad engine exclusion, (iv) resolution of conflicting exemptions for reconstructed emissions units and modified emissions units, (v) exemption of short-term testing and remediation projects and aggregation of emissions units under some other exemptions, (vi) changes to the way that replacement emissions units are exempted, (vii) changes to certain exemption requirements for portable stationary sources, (viii) changes to the way that emission rates are calculated for certain exemptions, (ix) resolution of regulatory conflicts concerning open pit incinerators, and (x) clarification of other provisions of the minor new source review program.
Changes to the proposed regulation (i) revise the BACT definition; (ii) restore the exemption threshold for fuel burning units using natural gas; (iii) correct the fine particulate matter (PM2.5) exemption rate threshold for projects; (iv) provide for the exemption of small farm incinerators; (v) revise the definitions of construction, major modification, major stationary source, significant, and toxic pollutant; (vi) correct the provision for construction in planned incremental phases; (vii) simplify the provisions for permit invalidation; (viii) revise the definition of emergency; and (ix) make various style, numbering, and typographical corrections.
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.
Article 4
Standards of Performance for Stationary Sources (Rule 5-4)
9VAC5-50-240. Applicability and designation of affected facility.
A. The affected facilities in at stationary
sources to which the provisions of this article apply are facilities emissions
units that emit or cause air pollution are subject to the new
source review program.
B. The provisions of this article apply throughout the Commonwealth of Virginia.
C. The provisions of this article apply only to affected
facilities subject to the new source review program to any regulated air
pollutant except to the extent that it is regulated under 9VAC5-60 (Hazardous
Air Pollutant Sources). However, the exemption provided by this subsection does
not extend to other properties of the exempted pollutants that may require
regulation under 9VAC5-40 (Existing Stationary Sources) or 9VAC5-50 (New and
Modified Stationary Sources).
9VAC5-50-250. Definitions.
A. For the purpose of applying this article in the context
of the Regulations for the Control and Abatement of Air Pollution and subsequent
amendments or any orders issued by the board related uses, the words
or terms shall have the meanings given them in subsection C of this section.
B. As used in this article Unless otherwise
required by context, all terms not defined here herein shall
have the meanings given them in 9VAC5 Chapter 10 (9VAC5-10-), unless
otherwise required by context 9VAC5-80 (Permits for Stationary Sources),
9VAC5-10 (General Definitions), or commonly ascribed to them by recognized
authorities, in that order of priority.
C. Terms defined.
"Best available control technology" or
"BACT" means, as used in 9VAC5-50-260, a standard of
performance an emissions limitation (including a visible emission
standard) based on the maximum degree of emission reduction for any pollutant
which would be emitted from any proposed a new stationary source or
project which the board, on a case-by-case basis, taking into account
energy, environmental and economic impacts and other costs, determines is
achievable for such source the new stationary source or project
through the application of production processes or available methods, systems
and techniques, including fuel cleaning or treatment or innovative fuel
combustion techniques for control of such pollutant. In no event shall
application of best available control technology result in emissions of any
pollutant which would exceed the emissions allowed by any applicable standard
in Article 5 (9VAC5-50-400 et seq.) of this part or Article 1 (9VAC5-60-60 et
seq.) or Article 2 (9VAC5-60-90 et seq.) of Part II of 9VAC5 Chapter 60
9VAC5-60 (Hazardous Air Pollutant Sources). If the board determines that
technological or economic limitations on the application of measurement
methodology to a particular emissions unit would make the imposition of
an emission standard infeasible, a design, equipment, work practice,
operational standard, or combination of them, may be prescribed instead of
requiring the application of best available control technology. Such standard
shall, to the degree possible, set forth the emission reduction achievable by
implementation of such design, equipment, work practice or operation, and shall
provide for compliance by means which achieve equivalent results. In
determining best available control technology for stationary sources subject to
Article 6 (9VAC5-80-1100 et seq.) of Part II of 9VAC5 Chapter 80, consideration
shall be given to the nature and amount of the new emissions, emission control
efficiencies achieved in the industry for the source type, and the cost
effectiveness of the incremental emission reduction achieved. [ In
determining best available control technology for stationary sources subject to
Article 6 (9VAC5-80-1100 et seq.) of Part II of 9VAC5-80 (Permits for
Stationary Sources), consideration shall be given to the nature and amount of
the emissions, emission control efficiencies achieved in the industry for the
source type, total cost effectiveness, and where appropriate, the cost
effectiveness of the incremental emissions reduction achieved between control
alternatives. ]
"Lowest achievable emission rate" means for any
source, the more stringent rate of emissions based on the following:
1. The most stringent emissions limitation which is
contained in the implementation plan of any state for such class or category of
stationary source, unless the owner of the proposed stationary source
demonstrates that such limitations are not achievable; or
2. The most stringent emissions limitation which is
achieved in practice by such class or category of stationary source. This
limitation, when applied to a modification, means the lowest achievable
emissions rate for the new or modified emissions units within the stationary
source. In no event shall the application of this term permit a proposed new or
modified stationary source to emit any pollutant in excess of the amount
allowable under an applicable new source standard of performance.
"New source review (NSR) program" means a
preconstruction review and permit program (i) for new stationary sources or
modifications (physical changes or changes in the method of operation); (ii)
established to implement the requirements of §§ 110(a)(2)(C), 112 (relating to
permits for hazardous air pollutants), 165 (relating to permits in prevention
of significant deterioration areas), and 173 (relating to permits in nonattainment
areas) of the federal Clean Air Act and associated regulations; and (iii)
codified in Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et
seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.)
of 9VAC5 Chapter 80.
9VAC5-50-260. Standard for stationary sources.
A. No owner or other person shall cause or permit to be
discharged into the atmosphere from any affected facility any emissions in
excess of that resultant from using emissions limitations
representing best available control technology, as reflected in any term
or condition that may be placed upon the minor NSR permit approval
for the facility.
B. A new stationary source shall apply best available
control technology for each regulated pollutant that it would have the
potential to emit in amounts for which there would be an uncontrolled
emission rate equal to or greater than the levels in 9VAC5-80-1320 C
9VAC5-80-1105 C. For a new stationary source, a permit may be issued
pursuant to Article 6 (9VAC5-80-1100 et seq.) of Part II of 9VAC5-80 (Permits
for Stationary Sources) containing such terms and conditions as may be
necessary to implement a best available control technology determination for
any regulated air pollutant that may be emitted from any affected emissions
unit.
C. A modification project shall apply best
available control technology for each regulated pollutant for which it would
result in a net emissions increase at the source there would be an
increase in the uncontrolled emission rate equal to or greater than the levels
in 9VAC5-80-1105 D. This requirement applies to each proposed affected
emissions unit at which a net emissions increase in the pollutant would
occur in amounts equal to or greater than the levels in 9VAC5-80-1320 D as a
result of physical change or change in the method of operation in the unit in
the project. For a project, a permit may be issued pursuant to Article 6
(9VAC5-80-1100 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources)
containing such terms and conditions as may be necessary to implement a best
available control technology determination for any regulated air pollutant
emitted, or that may be emitted, from any affected emissions unit.
D. For the phased construction of new stationary
sources or projects, the determination of best available control
technology BACT determination shall be reviewed and modified, as
appropriate, at the latest reasonable time which occurs no later than 18 months
prior to commencement of construction of each independent phase of the new
stationary source or project. At such time, the owner of the applicable
stationary source or project may be required to demonstrate the adequacy
of any previous determination of best available control technology BACT
determination for the source affected emissions units.
Article 6
Permits for New and Modified Stationary Sources
9VAC5-80-1100. Applicability.
A. Except as provided in subsection C of this section, the
provisions of this article apply to the construction, reconstruction,
relocation or modification of any stationary source (i) the construction
of any new stationary source or any project (which includes any addition or
replacement of an emissions unit, any modification to an emissions unit or any
combination of these changes), and (ii) the reduction of any stack outlet
elevation at any stationary source.
B. The provisions of this article apply throughout the Commonwealth of Virginia.
C. The Except as provided in subdivision 3 of this
subsection, the provisions of this article do not apply to any stationary
source, emissions unit or facility that is exempt under the provisions of 9VAC5-80-1320
9VAC5-80-1105.
1. Exemption from the requirement to obtain a minor
NSR permit under this article shall not relieve any owner of the
responsibility to comply with any other applicable provisions of regulations of
the board or any other applicable regulations, laws, ordinances and orders of
the governmental entities having jurisdiction.
2. Any stationary source, emissions unit or facility
which is exempt from the provisions of this article based on the criteria in 9VAC5-80-1320
9VAC5-80-1105 but which exceeds the applicability thresholds for any
applicable emission standard in 9VAC5 Chapter 40 (9VAC5-40) 9VAC5-40
(Existing Stationary Sources) if it were an existing source or any
applicable standard of performance in 9VAC5 Chapter 50 (9VAC5-50) 9VAC5-50
(New and Modified Stationary Sources) shall be subject to the more
restrictive of the provisions of either the emission standard in 9VAC5
Chapter 40 (9VAC5-40) 9VAC5-40 (Existing Stationary Sources) or the
standard of performance in 9VAC5 Chapter 50 (9VAC5-50) 9VAC5-50 (New
and Modified Stationary Sources).
3. Any new stationary source or project that would be subject to the provisions of this article except for being exempt based on one or more of the criteria in 9VAC5-80-1105 may opt to be subject to this article notwithstanding the exemptions in 9VAC5-80-1105. The provisions of this article shall apply to the new stationary source or project as if the applicable exemption criteria did not apply. Opting in to the minor NSR program shall not affect the applicability of such exemptions to any subsequent project.
D. The Except as provided in 9VAC5-80-1105 C 3 and
D 3, fugitive emissions of a stationary source, to the extent quantifiable,
shall be included in determining whether it is subject to this article. The
provisions of this article do not apply to a stationary source or modification
that would be subject to this article only if fugitive emissions, to the extent
quantifiable, are considered in calculating the uncontrolled emissions rate of
the source or net emissions increase.
E. An affected facility subject to Article 5 (9VAC5-50-400
et seq.) of Part II of 9VAC5 Chapter 50 shall not be exempt from the provisions
of this article, except where:
1. The affected facility would be subject only to
recordkeeping or reporting requirements or both under Article 5 (9VAC5-50-400
et seq.) of 9VAC5 Chapter 50; or
2. The affected facility is constructed, reconstructed or
modified at a stationary source which has a current permit for similar affected
facilities that requires compliance with emission standards and other
requirements that are not less stringent than the provisions of Article 5
(9VAC5-50-400 et seq.) of 9VAC5 Chapter 50.
E. Where construction of a new stationary source or a project is accomplished in contemporaneous increments that individually are not subject to approval under this article and that are not part of a program of construction of a new stationary source or project in planned incremental phases approved by the board, all such increments shall be added together for determining the applicability of any particular change under the provisions of this article. An incremental change is contemporaneous with the particular change only if it occurs between the date five years before commencing construction on the particular change and the date that the emissions increase from the particular change occurs.
F. Regardless of the exemptions provided in this article, no owner or other person shall circumvent the requirements of this article by causing or allowing a pattern of ownership or development over a geographic area of a stationary source which, except for the pattern of ownership or development, would otherwise require a minor NSR permit.
G. No provision of this article shall be construed as exempting any stationary source or emissions unit from the provisions of the major new source review program. Accordingly, no provision of the major new source review program regulations shall be construed as exempting any stationary source or emissions unit from this article.
H. Unless specified otherwise, the provisions of this article are applicable to various sources as follows:
1. Provisions referring to "sources," "new
or modified sources, or both" or "stationary sources" are
applicable to the construction, relocation, replacement, reconstruction
or modification of all stationary sources (including major stationary sources
and major modifications) and the emissions from them to the extent that such
sources and their emissions are not subject to the provisions of the major new
source review program.
2. Provisions referring to "major stationary
sources" are applicable to the construction, relocation, or reconstruction
replacement of all major stationary sources subject to this article.
Provisions referring to "major modifications" are applicable to major
modifications of major stationary sources subject to this article.
3. In cases where the provisions of the major new source review program conflict with those of this article, the provisions of the major new source review program shall prevail.
4. Provisions referring to "state and federally enforceable" or "federally and state enforceable" or similar wording shall mean "state-only enforceable" for terms and conditions of a minor NSR permit designated state-only enforceable under 9VAC5-80-1120 F.
I. For sources subject to the federal hazardous air pollutant new source review program, the provisions of the federal hazardous air pollutant new source review program shall be implemented through this article and the applicable article of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources). Implementation of the federal hazardous air pollutant new source review program shall be independent of applicability and exemption criteria of this article. Additional details may be found in subdivisions 1, 2, and 3 of this subsection. Minor NSR permits shall be the administrative mechanism for issuing approvals under the provisions of federal hazardous air pollutant new source review program. Except as noted below, in cases where there are differences between the provisions of this article and the provisions of federal hazardous air pollutant new source review program, the more restrictive provisions shall apply. The provisions of 9VAC5-80-1150 and 9VAC5-80-1160 shall not apply to sources subject to the federal hazardous air pollutant new source review program. Other sections of this article also provide requirements relative to the application of this article to sources subject to the federal hazardous air pollutant new source review program, in which case those provisions shall prevail. This subsection applies only to the extent that the provisions of the federal hazardous air pollutant new source review program are not being implemented by other new source review program regulations of the board.
1. The provisions of 40 CFR 61.05, 40 CFR 61.06, 40 CFR 61.07, 40 CFR 61.08 and 40 CFR 61.15 for issuing approvals of the construction of any new source or modification of any existing source subject to the provisions of 40 CFR Part 61. These provisions of the federal hazardous air pollutant new source review program shall be implemented through this article and Article 1 (9VAC5 60 60 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).
2. The provisions of 40 CFR 63.5 for issuing approvals to construct a new source or reconstruct a source subject to the provisions of 40 CFR Part 63, except for Subparts B, D, and E. These provisions of the federal hazardous air pollutant new source review program shall be implemented through this article and Article 2 (9VAC5-60-90 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).
3. The provisions of 40 CFR 63.50 through 40 CFR 63.56 for issuing Notices of MACT Approval prior to the construction of a new emissions unit. These provisions of the federal hazardous air pollutant new source review program shall be implemented through this article and Article 3 (9VAC5-60-120 et seq.) of Part II of 9VAC5-60. Any information regarding how minor NSR permits are to be issued to a source category or portion of a source category subject to this element of the federal hazardous air pollutant new source review program under the provisions of this article may be found in Article 3 (9VAC5-60-120 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).
4. The provisions of 40 CFR 63.40 through 40 CFR 63.44 for issuing approvals to construct a new source or reconstruct a source listed in the source category schedule for standards and to construct a new major source or reconstruct a major source even if the source category is not listed in the source category schedule for standards. These provisions of the federal hazardous air pollutant new source review program shall not be implemented through this article but shall be implemented through Article 7 (9VAC5-80-1400 et seq.) of this part.
J. Unless otherwise approved by the board or prescribed in
the regulations of the board, when this article is amended, the previous
provisions of this article shall remain in effect for all applications that are
deemed complete under the provisions of 9VAC5-80-1160 B prior to [ (insert
the effective date of the amendment) November 7, 2012, ].
Any minor NSR permit applications that have not been determined to be complete
as of [ (insert the effective date of the amendment)
November 7, 2012, ] shall be subject to the new provisions of this
article.
K. The provisions of 40 CFR Parts 60, 61, and 63 cited in this article apply 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 Sources) and Article 1 (9VAC5-60-60 et seq.) and Article 2 (9VAC5-60-90 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).
L. The provisions of 40 CFR Parts 51, 58, 60, 61, and 63 cited in this article apply only to the extent that they are incorporated by reference in 9VAC5-20-21.
M. Particulate matter (PM2.5) emissions and particulate matter (PM10) emissions shall include gaseous emissions from a source or activity that condense to form particulate matter at ambient temperatures. On or after January 1, 2011, such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM2.5 and PM10 in minor NSR permits. Compliance with emissions limitations for PM2.5 and PM10 issued prior to this date shall not be based on condensable particulate matter unless required by the terms and conditions of the permit. Applicability determinations made prior to this date without accounting for condensable particulate matter shall not be considered in violation of this section.
9VAC5-80-1105. Permit exemptions.
A. The general requirements for minor NSR permit exemptions are as follows:
1. The provisions of this article do not apply to the following stationary sources or emissions units:
a. The construction of any stationary source or emissions unit that is exempt under the provisions of subsections B through F of this section. In determining whether a source is exempt from the provisions of this article, the provisions of subsections B through D of this section are independent from the provisions of subsections E and F of this section. A source must be determined to be exempt both under the provisions of subsections B through D of this section taken as a group and under the provisions of subsections E and F of this section to be exempt from this article.
b. Vegetative waste recycling/mulching operations that do not exceed 2100 hours of operation in any 12-month consecutive period at a single stationary source. To qualify as an exemption under this subdivision, the total rated capacity of all diesel engines at the source, including portable diesel engines temporarily located at the site, may not exceed 1200 brake horsepower (output).
c. The location of a portable emissions unit at a site subject to the following conditions:
(1) Any new emissions from the portable emissions unit are secondary emissions.
(2) The portable emissions unit is either subject to (i) a minor NSR permit authorizing the emissions unit as a portable emissions unit subject to this subdivision or (ii) a general permit.
(3) The emissions of the portable emissions unit at the site would be temporary.
(4) The portable emissions unit would not undergo modification or replacement that would be subject to this article.
(5) The portable emissions unit is suitable to the area in which it is to be located.
(6) Reasonable notice is given to the board prior to locating the emissions unit to the site identifying the proposed site and the probable duration of operation at the site. Such notice shall be provided to the board not less than 15 days prior to the date the emissions unit is to be located at the site unless a different notification schedule is previously approved by the board.
d. The reactivation of a stationary source unless a determination concerning shutdown has been made pursuant to the provisions of 9VAC5-20-220.
e. The use by any existing stationary source or emissions unit of an alternative fuel or raw material, if the following conditions are met:
(1) The owner demonstrates to the board that, as a result of trial burns at the owner's facility or other facilities or other sufficient data, the emissions resulting from the use of the alternative fuel or raw material supply are decreased. No demonstration will be required for the use of processed animal fat, processed fish oil, processed vegetable oil, distillate oil, or any mixture thereof in place of the same quantity of residual oil to fire industrial boilers.
(2) The use of an alternative fuel or raw material would not be subject to review under this article as a project.
2. The provisions of this article do not apply to the following stationary sources or emissions units provided the stationary source or emissions unit is (i) exempt under the provisions of subsections E and F of this section and (ii) meets any other applicable criteria or conditions set forth in this subdivision.
a. Replacement of an emissions unit subject to the following criteria:
(1) The replacement emission unit is (i) of an equal or lesser size and (ii) of an equal or lesser rated capacity as compared to the replaced emissions unit.
(2) The replacement emissions unit is functionally equivalent to the replaced emissions unit.
(3) The replacement emissions unit does not change the basic design parameters of the process operation.
(4) The potential to emit of the replacement emissions unit does not exceed the potential to emit of the replaced emissions unit. If the replaced emissions unit is subject to terms and conditions contained in a minor NSR permit, the owner may, concurrently with the notification required in subdivision (6) of this subdivision, request a minor amendment as provided in 9VAC5-80-1280 B 4 to that permit to apply those terms and conditions to the replacement emissions unit. However, the replacement emissions unit's potential to emit is not limited for the purposes of this subdivision unless (and until) the requested minor permit amendment is granted by the board.
(5) The replaced emissions unit is either removed or permanently shut down in accordance with the provisions of 9VAC5-20-220.
(6) The owner notifies the board, in writing, of the proposed replacement at least 15 days prior to commencing construction on the replacement emissions unit. Such notification shall include the size, function, and rated capacity of the existing and replacement emissions units and the registration number of the affected stationary source.
b. A reduction in stack outlet elevation provided that the stack serves only facilities that have been previously determined to be exempt from the minor NSR program.
3. In determining whether a facility is exempt from the provisions of this article under the provisions of subsection B of this section, the definitions in 9VAC5-40 (Existing Stationary Sources) that would cover the facility if it were an existing source shall be used unless deemed inappropriate by the board.
4. Any owner claiming that a facility is exempt from this article under the provisions of this section shall keep records as may be necessary to demonstrate to the satisfaction of the board that the facility was exempt at the time a minor NSR permit would have otherwise been required under this article.
B. Facilities as specified below shall be exempt from the provisions of this article.
1. Fuel burning equipment units (external combustion units, not engines and turbines) and space heaters in a single application as follows:
a. Except as provided in subdivision b of this subdivision, the exemption thresholds in subdivisions (1) through (4) of this subdivision shall be applied on an individual unit basis for each fuel type.
(1) Using solid fuel with a maximum heat input of less than 1,000,000 Btu per hour.
(2) Using liquid fuel with a maximum heat input of less than 10,000,000 Btu per hour.
(3) Using liquid and gaseous fuel with a maximum heat input of less than 10,000,000 Btu per hour.
(4) Using gaseous fuel with a maximum heat input of less
than [ 30,000,000 50,000,000 ] Btu per
hour.
b. In ozone nonattainment areas designated in 9VAC5-20-204 or ozone maintenance areas designated in 9VAC5-20-203, the exemption thresholds in subdivision a of this subdivision shall be applied in the aggregate for each fuel type.
2. Engines and turbines that are used for emergency purposes only and that do not individually exceed 500 hours of operation per year at a single stationary source as follows. All engines and turbines in a single application must also meet the following criteria to be exempt.
a. Gasoline engines with an aggregate rated brake (output) horsepower of less than 910 hp and gasoline engines powering electrical generators having an aggregate rated electrical power output of less than 611 kilowatts.
b. Diesel engines with an aggregate rated brake (output) horsepower of less than 1,675 hp and diesel engines powering electrical generators having an aggregate rated electrical power output of less than 1125 kilowatts.
c. Combustion gas turbines with an aggregate of less than 10,000,000 Btu per hour heat input (low heating value).
3. Engines that power mobile sources during periods of maintenance, repair, or testing.
4. Volatile organic compound storage and transfer operations involving petroleum liquids and other volatile organic compounds with a vapor pressure less than 1.5 pounds per square inch absolute under actual storage conditions or, in the case of loading or processing, under actual loading or processing conditions; and any operation specified below:
a. Volatile organic compound transfer operations involving:
(1) Any tank of 2,000 gallons or less storage capacity; or
(2) Any operation outside the volatile organic compound emissions control areas designated in 9VAC5-20-206.
b. Volatile organic compound storage operations involving any tank of 40,000 gallons or less storage capacity.
5. Vehicle customizing coating operations, if production is less than 20 vehicles per day.
6. Vehicle refinishing operations.
7. Coating operations for the exterior of fully assembled aircraft or marine vessels.
8. Petroleum liquid storage and transfer operations involving petroleum liquids with a vapor pressure less than 1.5 pounds per square inch absolute under actual storage conditions or, in the case of loading or processing, under actual loading or processing conditions (kerosene and fuel oil used for household heating have vapor pressures of less than 1.5 pounds per square inch absolute under actual storage conditions; therefore, kerosene and fuel oil are not subject to the provisions of this article when used or stored at ambient temperatures); and any operation or facility specified below:
a. Gasoline bulk loading operations at bulk terminals located outside volatile organic compound emissions control areas designated in 9VAC5-20-206.
b. Gasoline dispensing facilities.
c. Gasoline bulk loading operations at bulk plants:
(1) With an expected daily throughput of less than 4,000 gallons, or
(2) Located outside volatile organic compound emissions control areas designated in 9VAC5-20-206.
d. Account/tank trucks; however, permits issued for gasoline storage/transfer facilities should include a provision that all associated account/tank trucks meet the same requirements as those trucks serving existing facilities.
e. Petroleum liquid storage operations involving:
(1) Any tank of 40,000 gallons or less storage capacity;
(2) Any tank of less than 420,000 gallons storage capacity for crude oil or condensate stored, processed or treated at a drilling and production facility prior to custody transfer; or
(3) Any tank storing waxy, heavy pour crude oil.
9. Petroleum dry cleaning plants with a total manufacturers' rated solvent dryer capacity less than 84 pounds as determined by the applicable new source performance standard in 9VAC5-50-410.
10. Any addition of, relocation of, or change to a woodworking machine within a wood product manufacturing plant provided the system air movement capacity, expressed as the cubic feet per minute of air, is not increased and maximum control efficiency of the control system is not decreased.
11. Wood sawmills and planing mills primarily engaged in sawing rough lumber and timber from logs and bolts, or resawing cants and flitches into lumber, including box lumber and softwood cut stock; planing mills combined with sawmills; and separately operated planing mills that are engaged primarily in producing surfaced lumber and standard workings or patterns of lumber. This also includes facilities primarily engaged in sawing lath and railroad ties and in producing tobacco hogshead stock, wood chips, and snow fence lath. This exemption does not include any facility that engages in the kiln drying of lumber.
12. Exhaust flares at natural gas and coalbed methane extraction wells.
13. Temporary facilities subject to the following conditions:
a. The operational period of the temporary facility (the period from the date that the first pollutant-emitting operation is commenced to the date of shutdown of the temporary facility) is 12 months or less.
b. The uncontrolled emissions rate of any regulated air pollutant that would be emitted from the temporary facility during the operational period does not exceed the applicable exempt emission rate as set forth in 9VAC5-80-1105 C (exemption rates for new stationary sources) or 9VAC5-80-1105 D (exemption rates for projects). The uncontrolled emission rate may be calculated based upon the total number of hours in the operational period instead of 8760 hours. All temporary facilities that will be co-located at a stationary source shall be considered in the aggregate when calculating the uncontrolled emissions rate under this subdivision.
c. Upon completion of the operational period, the temporary facility shall be either (i) shut down in accordance with 9VAC5-20-220 or (ii) returned to its original state and condition unless, prior to the end of the operational period, the owner demonstrates in writing to the satisfaction of the board that the facility is exempt under 9VAC5-80-1105 C (exemption rates for new stationary sources) or D (exemption rates for new stationary projects) using 8760 hours of operation per year.
d. Not less than 30 calendar days prior to commencing the operational period, the owner shall notify the board in writing of the proposed temporary facility and shall provide (i) calculations demonstrating that the temporary facility is exempt under this subdivision and under 9VAC5-80-1105 E and F and (ii) proposed dates for commencing the first pollutant-emitting operation and shutdown of the temporary facility.
e. The owner shall provide written notifications to the board of (i) the actual date of commencing the first pollutant-emitting operation and (ii) the actual date of shutdown of the temporary facility. Notifications shall be postmarked not more than 10 days after such dates.
14. Open pit incinerators subject to [ Article
40 (9VAC5-40-5600 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources)
9VAC5-130 (Regulation for Open Burning) ] and used solely for the
purpose of disposal of clean burning waste and debris waste.
[ 15. Poultry or swine incinerators located on a farm where all of the following conditions are met:
a. Auxiliary fuels for the incinerator unit shall be limited to natural gas, liquid petroleum gas, and/or distilled petroleum liquid fuel. Solid fuels, waste materials, or residual petroleum oil products shall not be used to fire the incinerator.
b. The waste incinerated shall be limited to pathological waste (poultry or swine remains). Litter and animal bedding or any other waste materials shall not be incinerated.
c. The design burn rate or capacity rate of the incinerator shall be 400 pounds per hour or less of poultry or swine. This value shall apply only to the mass of the poultry or swine and shall not include the mass of the fuel.
d. The incinerator shall be used solely to dispose of poultry or swine originating on the farm where the incinerator is located.
e. The incinerator shall be owned and operated by the owner or operator of the farm where the incinerator is located.
f. The incinerator shall not be charged beyond the manufacturer's recommended rated capacity.
g. Records shall be maintained on site to demonstrate compliance with the conditions for this exemption, including but not limited to the total amount of pathological waste incinerated and the fuel usage on a calendar year quarterly basis. ]
C. The exemption of new stationary sources shall be determined as specified below:
1. New stationary sources with uncontrolled emission rates less than all of the emission rates specified below shall be exempt from the provisions of this article. The uncontrolled emission rate of a new stationary source is the sum of the uncontrolled emission rates of the individual affected emissions units. Facilities exempted by subsection B of this section shall not be included in the summation of uncontrolled emissions for purposes of exempting new stationary sources under this subsection.
|
Pollutant |
Emissions Rate |
|
Carbon Monoxide |
100 tons per year (tpy) |
|
Nitrogen Oxides |
40 tpy |
|
Sulfur Dioxide |
40 tpy |
|
Particulate Matter |
25 tpy |
|
Particulate Matter (PM10) |
15 tpy |
|
Particulate Matter (PM2.5) |
10 tpy |
|
Volatile organic compounds |
25 tpy |
|
Lead |
0.6 tpy |
|
Fluorides |
3 tpy |
|
Sulfuric Acid Mist |
6 tpy |
|
Hydrogen Sulfide (H2S) |
9 tpy |
|
Total Reduced Sulfur
(including H2S) |
9 tpy |
|
Reduced Sulfur Compounds
(including H2S) |
9 tpy |
|
Municipal waste combustor
organics (measured as total tetra-throughocta-chlorinated dibenzo-p-dioxins
and dibenzofurans) |
3.5 x 10-6 tpy |
|
Municipal waste combustor
metals (measured as particulate matter) |
13 tpy |
|
Municipal waste combustor
acid gases (measured as the sum of SO2 and HCl) |
35 tpy |
|
Municipal solid waste
landfill emissions (measured as nonmethane organic compounds) |
22 tpy |
2. If the particulate matter (PM10 or PM2.5) emissions for a stationary source can be determined in a manner acceptable to the board and the stationary source is deemed exempt using the emission rate for particulate matter (PM10 or PM2.5), the stationary source shall be considered to be exempt for particulate matter (PM). If the emissions of particulate matter (PM10 or PM2.5) cannot be determined in a manner acceptable to the board, the emission rate for particulate matter (PM) shall be used to determine the exemption status.
3. The provisions of this article do not apply to a new stationary source if all of the emissions considered in calculating the uncontrolled emission rate of the new stationary source are fugitive emissions.
D. The exemption of projects shall be determined as specified below:
1. A project that would result in increases in uncontrolled emission rates at the stationary source less than all of the emission rates specified below shall be exempt from the provisions of this article. The uncontrolled emission rate increase of a project is the sum of the uncontrolled emission rate increases of the individual affected emissions units. Uncontrolled emissions rate decreases are not considered as part of this calculation. Facilities exempted by subsection B of this section shall not be included in the summation of uncontrolled emissions for purposes of exempting projects under this subsection.
|
Pollutant |
Emissions Rate |
|
Carbon Monoxide |
100 tons per year (tpy) |
|
Nitrogen Oxides |
10 tpy |
|
Sulfur Dioxide |
10 tpy |
|
Particulate matter |
15 tpy |
|
Particulate matter PM10 |
10 tpy |
|
Particulate matter (PM2.5) |
[ |
|
Volatile organic compounds |
10 tpy |
|
Lead |
0.6 tpy |
|
Fluorides |
3 tpy |
|
Sulfuric Acid Mist |
6 tpy |
|
Hydrogen Sulfide (H2S) |
9 tpy |
|
Total Reduced Sulfur
(including H2S) |
9 tpy |
|
Reduced Sulfur Compounds
(including H2S) |
9 tpy |
|
Municipal waste combustor
organics (measured as total tetra-through octa-chlorinated dibenzo-p-dioxins
and dibenzofurans) |
3.5 x 10-6 tpy |
|
Municipal waste combustor
metals (measured as particulate matter) |
13 tpy |
|
Municipal waste combustor
acid gases (measured as the sum of SO2 and HCl) |
35 tpy |
|
Municipal solid waste
landfill emissions (measured as nonmethane organic compounds) |
22 tpy |
2. If the particulate matter (PM10 or PM2.5) emissions for a stationary source can be determined in a manner acceptable to the board and the stationary source is deemed exempt using the emission rate for particulate matter (PM10 or PM2.5), the stationary source shall be considered to be exempt for particulate matter (PM). If the emissions of particulate matter (PM10 or PM2.5) cannot be determined in a manner acceptable to the board, the emission rate for particulate matter (PM) shall be used to determine the exemption status.
3. The provisions of this article do not apply to a project if all of the emissions considered in calculating the uncontrolled emission rate increase of the project are fugitive emissions.
E. Exemptions for stationary sources of toxic pollutants not subject to the federal hazardous air pollutant new source review program shall be as follows:
1. Stationary sources exempt from the requirements of Article 5 (9VAC5-60-300 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources) as provided in 9VAC5-60-300 C 1, C 2, C 7, D, or E shall be exempt from the provisions of this article.
2. Facilities as specified below shall not be exempt, regardless of size or emission rate, from the provisions of this article.
a. Incinerators, unless (i) the incinerator is used
exclusively as air pollution control equipment, [ or ]
(ii) the incinerator is an open pit incinerator subject to [ Article
40 (9VAC5-40-5600 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources)
9VAC5-130 (Regulation for Open Burning) ] and used solely for the
disposal of clean burning waste and debris waste [ , or (iii) the
incinerator is a poultry or swine incinerator located on a farm and all of the
conditions of subdivision B 15 of this section are met ].
b. Ethylene oxide sterilizers.
c. Boilers, incinerators, or industrial furnaces as defined in 40 CFR 260.10 and subject to 9VAC20-60 (Hazardous Waste Regulations).
F. This subsection provides information on the extent to which any source category or portion of a source category subject to the federal hazardous air pollutant new source review program may be exempt from the provisions of this article.
1. This subdivision addresses those source categories subject to the provisions of 40 CFR 61.05, 40 CFR 61.06, 40 CFR 61.07, 40 CFR 61.08, and 40 CFR 61.15 that establish the requirements for issuing approvals of the construction of any new source or modification of any existing source subject to the provisions of 40 CFR Part 61. Any source category or portion of a source category subject to this element of the federal hazardous air pollutant new source review program shall be exempt from the provisions of this article if specifically exempted from that program by 40 CFR Part 61.
2. This subdivision addresses those source categories subject to the provisions of 40 CFR 63.5 that establish the requirements for issuing approvals to construct a new source or reconstruct a source subject to the provisions of 40 CFR Part 63, except for Subparts B, D, and E. Any source category or portion of a source category subject to this element of the federal hazardous air pollutant new source review program shall be exempt from the provisions of this article if specifically exempted from that program by 40 CFR Part 63.
3. This subdivision addresses those source categories subject to the provisions of 40 CFR 63.50 through 40 CFR 63.56 that establish the requirements for issuing notices of MACT approval prior to the construction of a new emissions unit listed in the source category schedule for standards. Any information regarding exemptions for a source category or portion of a source category subject to this element of the federal hazardous air pollutant new source review program may be found in Article 3 (9VAC5-60-120 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).
4. This subdivision addresses those source categories for which EPA has promulgated a formal determination that no regulations or other requirements need to be established pursuant to § 112 of the federal Clean Air Act in the source category schedule for standards. Any source category or portion of a source category subject to this element of the federal hazardous air pollutant new source review program shall be exempt from the provisions of this article.
9VAC5-80-1110. 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 here
herein shall have the meanings given them in 9VAC5 Chapter 10
(9VAC5-10) 9VAC5-10 (General Definitions), unless otherwise required
by context.
C. Terms defined.
"Allowable emissions" means the emission rate of
a stationary source calculated by using the maximum rated capacity of the
source (unless the source is subject to state and federally enforceable limits
which restrict the operating rate or hours of operation, or both) and the most
stringent of the following:
1. Applicable emission standards;
2. The emission limitation specified as a state and
federally enforceable permit condition, including those with a future
compliance date; and
3. Any other applicable emission limitation, including
those with a future compliance date.
"Addition" means the construction of a new emissions unit at or the relocation of an existing emissions unit to a stationary source.
"Affected emissions units" means the following emissions units, as applicable:
1. For a new stationary source, all emissions units.
2. For a project, the added, modified, and replacement emissions units that are part of the project.
"Applicable federal requirement" means all of, but
not limited to, the following as they apply to affected emissions units in
a source subject to this article (including requirements that have been
promulgated or approved by the administrator through rulemaking at the time of
permit issuance but have future-effective compliance dates):
1. Any standard or other requirement provided for in an implementation plan established pursuant to § 110, § 111(d), or § 129 of the federal Clean Air Act, including any source-specific provisions such as consent agreements or orders.
2. Any limit term or condition in any
construction permit issued under the new source review program or in any
operating permit issued pursuant to the state operating permit program. However,
those terms or conditions designated as state-only enforceable pursuant to
9VAC5-80-1120 F or 9VAC5-80-820 G shall not be applicable federal requirements.
3. Any emission standard, alternative emission standard,
alternative emission emissions limitation, equivalent emission
emissions limitation or other requirement established pursuant to § 112
or § 129 of the federal Clean Air Act as amended in 1990.
4. Any new source performance standard or other requirement established pursuant to § 111 of the federal Clean Air Act, and any emission standard or other requirement established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.
5. Any limitations and conditions or other requirement in a Virginia regulation or program that has been approved by EPA under Subpart E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112 of the federal Clean Air Act.
6. Any requirement concerning accident prevention under § 112(r)(7) of the federal Clean Air Act.
7. Any compliance monitoring requirements established pursuant to either § 504(b) or § 114(a)(3) of the federal Clean Air Act.
8. Any standard or other requirement for consumer and commercial products under § 183(e) of the federal Clean Air Act.
9. Any standard or other requirement for tank vessels under § 183(f) of the federal Clean Air Act.
10. Any standard or other requirement in 40 CFR Part 55 to control air pollution from outer continental shelf sources.
11. Any standard or other requirement of the regulations
promulgated to protect stratospheric ozone under Title VI of the federal Clean Air
Act, unless the administrator has determined that such requirements need not be
contained in a federal operating permit issued under this article.
12. With regard to temporary sources subject to 9VAC5-80-130, (i) any ambient air quality standard, except applicable state requirements, and (ii) requirements regarding increments or visibility as provided in Article 8 (9VAC5-80-1605 et seq.) of this part.
13. Any standard or other requirement under § 126 (a)(1) and (c) of the federal Clean Air Act.
"Begin actual construction" means initiation of permanent physical on-site construction of an emissions unit. This includes, but is not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operation, this term refers to those on-site activities other than preparatory activities which mark the initiation of the change. With respect to the initial location or relocation of a portable emissions unit, this term refers to the delivery of any portion of the portable emissions unit to the site.
"Clean wood" means uncontaminated natural or untreated wood. Clean wood includes but is not limited to byproducts of harvesting activities conducted for forest management or commercial logging, or mill residues consisting of bark, chips, edgings, sawdust, shavings, or slabs. It does not include wood that has been treated, adulterated, or chemically changed in some way; treated with glues, binders, or resins; or painted, stained, or coated.
"Commence," as applied to the construction,
reconstruction or modification of an emissions unit, means that the owner
has all necessary preconstruction approvals or permits and has either:
1. Begun, or caused to begin, a continuous program of actual
on-site construction, reconstruction or modification of the unit, to be
completed within a reasonable time; or
2. Entered into binding agreements or contractual obligations,
which cannot be canceled or modified without substantial loss to the owner, to
undertake a program of actual construction, reconstruction or modification
of the unit, to be completed within a reasonable time.
"Complete application" means that the application contains all the information necessary for processing the application and that the provisions of § 10.1-1321.1 of the Virginia Air Pollution Control Law have been met. Designating an application complete for purposes of permit processing does not preclude the board from requesting or accepting additional information.
"Construction" means fabrication, erection,
installation, demolition, relocation, addition, replacement, or installation
modification of an emissions unit that would result in a change in
the uncontrolled emission rate.
"Construction waste" means solid waste that is produced or generated during construction, remodeling, or repair of pavements, houses, commercial buildings, and other structures. Construction wastes include, but are not limited to, lumber, wire, sheetrock, broken brick, shingles, glass, pipe, concrete, paving materials, and metal and plastics if the metal or plastics are a part of the materials of construction or empty containers for such materials. Paints, coatings, solvents, asbestos, any liquid, compressed gases or semi-liquids, and garbage are not construction wastes.
"Debris waste" means wastes resulting from land clearing operations. Debris wastes include, but are not limited to, stumps, wood, brush, leaves, soil, and road spoils.
"Demolition waste" means that solid waste that is produced by the destruction of structures or their foundations, or both, and includes the same materials as construction wastes.
"Diesel engine" means, for the purposes of 9VAC5-80-1105 A 1 b, any internal combustion engine that burns diesel or #2 fuel oil to provide power to processing equipment for a vegetative waste recycling/mulching operation.
[ "Emergency" means, in the context of
9VAC5-80-1320 B 2 9VAC5-80-1105 B 2, a situation where immediate action
on the part of a source is needed and where the timing of the action makes it
impractical to meet the requirements of this article, such as sudden loss of
power, fires, earthquakes, floods or similar occurrences.
"Emergency" means a condition that arises from sudden and reasonably unforeseeable events where the primary energy or power source is disrupted or disconnected due to conditions beyond the control of an owner or operator of a facility including:
1. A failure of the electrical grid;
2. On-site disaster or equipment failure;
3. Public service emergencies such as flood, fire, natural disaster, or severe weather conditions; or
4. An ISO-declared emergency, where an ISO emergency is:
a. An abnormal system condition requiring manual or automatic action to maintain system frequency, to prevent loss of firm load, equipment damage, or tripping of system elements that could adversely affect the reliability of an electric system or the safety of persons or property;
b. Capacity deficiency or capacity excess conditions;
c. A fuel shortage requiring departure from normal operating procedures in order to minimize the use of such scarce fuel;
d. Abnormal natural events or man-made threats that would require conservative operations to posture the system in a more reliable state; or
e. An abnormal event external to the ISO service territory that may require ISO action. ]
"Emissions cap" means any limitation on the rate of emissions of any air pollutant from one or more emissions units established and identified as an emissions cap in any permit issued pursuant to the new source review program or operating permit program.
"Emissions limitation" means a requirement established by the board that limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emissions reduction, and any design standard, equipment standard, work practice, operational standard, or pollution prevention technique.
"Emissions unit" means any part of a stationary source which emits or would have the potential to emit any regulated air pollutant.
"Enforceable as a practical matter" means that the
permit contains emission emissions limitations that are
enforceable by the board or the department and meet the following criteria:
1. Are permanent;
2. Contain a legal obligation for the owner to adhere to the terms and conditions;
3. Do not allow a relaxation of a requirement of the implementation plan;
4. Are technically accurate and quantifiable;
5. Include averaging times or other provisions that allow at
least monthly (or a shorter period if necessary to be consistent with the
implementation plan) checks on compliance. This may include, but not be limited
to, the following: compliance with annual limits in a rolling basis, monthly or
shorter limits, and other provisions consistent with 9VAC5-80-1180 this
article and other regulations of the board; and
6. Require a level of recordkeeping, reporting and monitoring sufficient to demonstrate compliance.
"Existing stationary source" means any stationary source other than a new stationary source.
"Federal hazardous air pollutant new source review
program" means a program for the preconstruction review and approval of new
sources or expansions to existing ones the construction, reconstruction,
or modification of any stationary source in accordance with regulations
specified below and promulgated to implement the requirements of § 112
(relating to hazardous air pollutants) of the federal Clean Air Act.
1. The provisions of 40 CFR 61.05, 40 CFR 61.06, 40 CFR 61.07,
40 CFR 61.08 and 40 CFR 61.15 for issuing approvals of the construction of any
new source or modification of any existing source subject to the provisions of
40 CFR Part 61. These provisions of the federal hazardous air pollutant new
source review program shall be implemented through this article and Article 1
(9VAC5-60-60 et seq.) of 9VAC5 Chapter 60.
2. The provisions of 40 CFR 63.5 for issuing approvals to
construct a new source or reconstruct a source subject to the provisions of 40
CFR Part 63, except for Subparts B, D and E. These provisions of the federal
hazardous air pollutant new source review program shall be implemented through
this article and Article 2 (9VAC5-60-90 et seq.) of 9VAC5 Chapter 60.
3. The provisions of 40 CFR 63.50 through 40 CFR 63.56 for
issuing Notices of MACT approval Approval prior to the
construction of a new emissions unit. These provisions of the federal
hazardous air pollutant new source review program shall be implemented through
this article and Article 3 (9VAC5-60-120 et seq.) of 9VAC5 Chapter 60.
"Federally enforceable" means all limitations and
conditions which that are enforceable by the administrator and
citizens under the federal Clean Air Act or that are enforceable under other
statutes administered by the administrator. Federally enforceable limitations
and conditions include, but are not limited to, the following:
1. Emission standards, alternative emission standards,
alternative emission emissions limitations, and equivalent emission
emissions limitations established pursuant to § 112 of the federal
Clean Air Act, as amended in 1990.
2. New source performance standards established pursuant to § 111 of the federal Clean Air Act, and emission standards established pursuant to § 112 of the federal Clean Air Act before it was amended in 1990.
3. All terms and conditions (unless expressly designated as
state-only enforceable) in a federal operating permit, including any
provisions that limit a source's potential to emit, unless expressly
designated as not federally enforceable.
4. Limitations and conditions that are part of an implementation plan established pursuant to § 110, § 111(d) or § 129 of the federal Clean Air Act.
5. Limitations and conditions (unless expressly designated
as state-only enforceable) that are part of a federal construction permit
issued under 40 CFR 52.21 or any construction permit issued under regulations
approved by the EPA in accordance with 40 CFR Part 51 into the
implementation plan.
6. Limitations and conditions (unless expressly designated
as state-only enforceable) that are part of an a state
operating permit issued pursuant to a program approved by the EPA into an
implementation plan as meeting the EPA's minimum criteria for federal
enforceability, including adequate notice and opportunity for EPA and public
comment prior to issuance of the final permit and practicable enforceability.
where the permit and the permit program pursuant to which it was issued meet
all of the following criteria:
a. The operating permit program has been approved by the EPA into the implementation plan under § 110 of the federal Clean Air Act.
b. The operating permit program imposes a legal obligation that operating permit holders adhere to the terms and limitations of such permits and provides that permits that do not conform to the operating permit program requirements and the requirements of EPA's underlying regulations may be deemed not federally enforceable by EPA.
c. The operating permit program requires that all emissions limitations, controls, and other requirements imposed by such permits will be at least as stringent as any other applicable limitations and requirements contained in the implementation plan or enforceable under the implementation plan, and that the program may not issue permits that waive, or make less stringent, any limitations or requirements contained in or issued pursuant to the implementation plan, or that are otherwise federally enforceable.
d. The limitations, controls, and requirements in the permit in question are permanent, quantifiable, and otherwise enforceable as a practical matter.
e. The permit in question was issued only after adequate and timely notice and opportunity for comment by the EPA and the public.
7. Limitations and conditions in a Virginia regulation of
the board or program that has been approved by the EPA under Subpart
E of 40 CFR Part 63 for the purposes of implementing and enforcing § 112
of the federal Clean Air Act.
8. Individual consent agreements that the EPA has legal
authority to create.
"Federal operating permit" means a permit issued under the federal operating permit program.
"Federal operating permit program" means an operating permit system (i) for issuing terms and conditions for major stationary sources, (ii) established to implement the requirements of Title V of the federal Clean Air Act and associated regulations, and (iii) codified in Article 1 (9VAC5-80-50 et seq.), Article 2 (9VAC5-80-310 et seq.), Article 3 (9VAC5-80-360 et seq.), and Article 4 (9VAC5-80-710 et seq.) of this part.
"Fixed capital cost" means the capital needed to provide all the depreciable components.
"Fugitive emissions" means those emissions which
that could not reasonably pass through a stack, chimney, vent, or other
functionally equivalent opening.
"General permit" means a permit issued under this article that meets the requirements of 9VAC5-80-1250.
"Hazardous air pollutant" means (i) any air
pollutant listed in § 112(b) of the federal Clean Air Act, as amended by 40
CFR 63.60 Subpart C of 40 CFR Part 63, and (ii) incorporated by
reference into the regulations of the board at 9VAC5-60-92 B.
[ "Independent system operator" or "ISO" means a person that may receive or has received by transfer pursuant to § 56-576 of the Code of Virginia any ownership or control of, or any responsibility to operate, all or part of the transmission systems in the Commonwealth. ]
"Major modification" means any modification
defined as such in 9VAC5-80-1615 C or 9VAC5-80-2010 C, as may apply project
at a major stationary source that would result in a significant emissions
increase in any regulated air pollutant. For projects, the emissions
increase may take into consideration any state and federally enforceable permit
conditions that [ are in effect on the date the will
be placed in a permit resulting from a permit ] application
[ is ] deemed complete under the provisions of 9VAC5-80-1160
B.
"Major new source review (NSR) permit" means a permit issued under the major new source review program.
"Major new source review (major NSR) program" means a preconstruction review and permit program (i) for new major stationary sources or major modifications (physical changes or changes in the method of operation); (ii) established to implement the requirements of §§ 112, 165 and 173 of the federal Clean Air Act and associated regulations; and (iii) codified in Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and Article 9 (9VAC5-80-2000 et seq.) of this part.
"Major stationary source" means any stationary
source which that emits, or has the potential to emit, 100 tons
or more per year of any regulated air pollutant. For new stationary sources,
the potential to emit may take into consideration any state and federally
enforceable permit conditions that [ are in effect on the date
the will be placed in a permit resulting from a permit ] application
[ is ] deemed complete under the provisions of
9VAC5-80-1160 B.
"Minor new source review (NSR) permit" means a permit issued pursuant to this article.
"Minor new source review (minor NSR) program" means
a preconstruction review and permit program (i) for regulated air pollutants
from new stationary sources or modifications (physical changes or
changes in the method of operation) that do not qualify for projects
that are not subject to review under the major new source review program;
(ii) established to implement the requirements of §§ 110(a)(2)(C) and 112 of
the federal Clean Air Act and associated regulations; and (iii) codified in Article
6 (9VAC5-80-1100 et seq.) of this part this article. The minor NSR
program may also be used to implement the terms and conditions described in
9VAC5-80-1120 F 1; however, those terms and conditions shall be state-only
enforceable and shall not be applicable federal requirements.
"Modification" means any physical change in, or
change in the method of operation of, or addition to, a stationary source
that would result in a net emissions increase an emissions unit that
increases the uncontrolled emission rate of any regulated air pollutant
emitted into the atmosphere by the source unit or which that
results in the emission of any regulated air pollutant into the atmosphere not
previously emitted, except that the. The following shall not,
by themselves (unless previously limited by permit conditions), be
considered modifications physical changes or changes in the method of
operation under this definition:
1. Maintenance, repair and replacement which of
components that the board determines to be routine for a source type and
which does not fall within the definition of "reconstruction replacement";
2. An increase in the throughput or production rate of a unit (unless previously limited by any state enforceable and federally enforceable permit conditions established pursuant to this chapter), if that increase does not exceed the operating design capacity of that unit;
3. An increase in the hours of operation (unless previously limited by any state enforceable and federally enforceable permit conditions established pursuant to this chapter);
4. Use of an alternative fuel or raw material (unless
previously limited by any state enforceable and federally enforceable permit
conditions established pursuant to this chapter) if, prior to the date any
provision of the regulations of the board becomes applicable to the source
type, the source emissions unit was designed to accommodate that
alternative use. A source unit shall be considered to be designed
to accommodate an alternative fuel or raw material if provisions for that use
were included in the final construction specifications;
5. Use of an alternative fuel or raw material that the emissions unit is approved to use under any new source review permit;
6. The addition, replacement or use of any system or
device whose primary function is the reduction of air pollutants, except when a
system or device that is necessary to comply with applicable air pollution
control laws and, permit conditions or regulations is replaced by
a system or device which the board considers to be less efficient in the
control of air pollution emissions; or
6. 7. The removal of any system or device whose
primary function is the reduction of air pollutants if the system or device is
not (i) necessary for the source to comply with any applicable air
pollution control laws, permit conditions, or regulations or (ii) used
to avoid any applicable new source review program requirement.
8. A change in ownership at a stationary source.
"Modified source" means any stationary source
(or portion of it), the modification of which commenced on or after March 17,
1972.
"Necessary preconstruction approvals or permits"
means those permits or approvals required under federal air quality control
laws and regulations, and those air quality control laws and regulations which
are the NSR program that is part of the implementation plan.
"Net emissions increase" means the amount by
which the sum of the following exceeds zero: (i) any increase in the
uncontrolled emission rate from a particular physical change or change in the
method of operation at a stationary source and (ii) any other increases and
decreases in the uncontrolled emission rate at the source that are concurrent
with the particular change and are otherwise creditable. An increase or
decrease in the uncontrolled emission rate is concurrent with the increase from
the particular change only if it is directly resultant from the particular
change. An increase or decrease in the uncontrolled emission rate is not
creditable if the board has relied on it in issuing a permit for the source
under the new source review program and that permit is in effect when the
increase in the uncontrolled emission rate from the particular change occurs.
Creditable increases and decreases shall be federally enforceable or
enforceable as a practical matter.
"New source" means any stationary source (or
portion of it), the construction or relocation of which commenced on or after
March 17, 1972; and any stationary source (or portion of it), the
reconstruction of which commenced on or after December 10, 1976.
"New source review (NSR) permit" means a permit issued under the new source review program.
"New source review (NSR) program" means a
preconstruction review and permit program (i) for regulated air pollutants
from new stationary sources or modifications projects
(physical changes or changes in the method of operation); (ii) established to
implement the requirements of §§ 110(a)(2)(C), 112 (relating to permits
for hazardous air pollutants), 165 (relating to permits in prevention of
significant deterioration areas), and 173 (relating to permits in nonattainment
areas) of the federal Clean Air Act and associated regulations; and (iii)
codified in Article 6 (9VAC5-80-1100 et seq.) this article,
Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.) and
Article 9 (9VAC5-80-2000 et seq.) of this part. The NSR program may also be
used to implement the terms and conditions described in 9VAC5-80-1120 F 1;
however, those terms and conditions shall be state-only enforceable and shall
not be applicable federal requirements.
"New stationary source" means any stationary source to be constructed at or relocated to an undeveloped site.
"Nonroad engine" means any internal combustion engine:
1. In or on a piece of equipment that is self-propelled or serves a dual purpose by both propelling itself and performing another function (such as garden tractors, off-highway mobile cranes and bulldozers); or
2. In or on a piece of equipment that is intended to be
propelled while performing its function (such as lawnmowers and string
trimmers); or.
3. That, by itself or in or on a piece of equipment, is
portable or transportable, meaning designed to be capable of being carried or
moved from one location to another. Indications of transportability include,
but are not limited to, wheels, skids, carrying handles, dollies, trailers, or
platforms.
An internal combustion engine is not a nonroad engine if:
1. The the engine is used to propel a motor vehicle or a vehicle
used solely for competition, or is subject to standards promulgated under § 202
of the federal Clean Air Act; or.
2. The engine otherwise included in subdivision 3 above
remains or will remain at a location for more than 12 consecutive months or a
shorter period of time for an engine located at a seasonal source.
For purposes of this definition, a location is any single
site at a building, structure, facility or installation. Any engine (or
engines) that replaces an engine at a location and that is intended to perform
the same or similar function as the engine replaced will be included in
calculating the consecutive time period. An engine located at a seasonal source
is an engine that remains at a seasonal source during the full annual operating
period of the seasonal source. A seasonal source is a stationary source that
remains in a single location on a permanent basis (i.e., at least two years)
and that operates at the single location approximately three months (or more)
each year. This paragraph does not apply to an engine after the engine is
removed from the location.
"Plantwide applicability limitation (PAL)" means an emissions limitation expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established sourcewide in accordance with 9VAC5-80-1865 or 9VAC5-80-2144.
"PAL permit" means the state operating permit issued by the board that establishes a PAL for a major stationary source.
"Portable," in reference to emissions units, means
an emissions unit that is designed to have the capability of being moved from
one location to another for the purpose of operating at multiple locations and
storage when idle. Indications of portability include, but are not limited to,
wheels, skids, carrying handles, dollies dolly, trailers trailer,
or platforms platform.
"Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment, and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or its effect on emissions is state and federally enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source.
"Precursor pollutant" means the following:
(1) Volatile organic compounds and nitrogen oxides are precursors to ozone.
(2) Sulfur dioxide is a precursor to PM2.5.
(3) Nitrogen oxides are presumed to be precursors to PM2.5 in all PM2.5, unless the board determines that emissions of nitrogen oxides from sources in a specific area are not a significant contributor to that area's ambient PM2.5 concentrations.
(4) Volatile organic compounds and ammonia are presumed not to be precursors to PM2.5, unless the board determines that emissions of volatile organic compounds or ammonia from sources in a specific area are a significant contributor to that area's ambient PM2.5 concentrations.
"Process operation" means any method, form, action, operation, or treatment of manufacturing or processing, including any storage or handling of materials or products before, during, or after manufacturing or processing.
"Project" means any change at an existing stationary source consisting of the addition, replacement, or modification of one or more emissions units.
"Public comment period" means a time during which
the public shall have the opportunity to comment on the new or modified source
permit application information (exclusive of confidential information) for a
new stationary source or project, the preliminary review and analysis of
the effect of the source upon the ambient air quality, and the preliminary
decision of the board regarding the permit application.
"Reactivation" means beginning operation of an emissions unit that has been shut down.
"Reconstruction" means, for the sole purposes of 9VAC5-80-1210 A, B, and C, the replacement of an emissions unit or its components to such an extent that:
1. The fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable entirely new unit;
2. The replacement significantly extends the life of the emissions unit; and
3. It is technologically and economically feasible to meet the applicable emission standards prescribed under regulations of the board.
Any determination by the board as to whether a proposed replacement constitutes reconstruction shall be based on:
1. The fixed capital cost of the replacements in comparison to the fixed capital cost of the construction of a comparable entirely new unit;
2. The estimated life of the unit after the replacements compared to the life of a comparable entirely new unit;
3. The extent to which the components being replaced cause or contribute to the emissions from the unit; and
4. Any economic or technical limitations on compliance with
applicable standards of performance which that are inherent in
the proposed replacements.
"Regulated air pollutant" means any of the following:
1. Nitrogen oxides or any volatile organic compound;.
2. Any pollutant (including any associated precursor
pollutant) for which an ambient air quality standard has been promulgated;.
3. Any pollutant subject to any standard promulgated under §
111 of the federal Clean Air Act; 40 CFR Part 60.
4. Any pollutant subject to a standard promulgated under or
other requirements established under § 112 of the federal Clean Air Act
concerning hazardous air pollutants 40 CFR Part 61 and any pollutant
regulated under 40 CFR Part 63; or.
5. Any pollutant subject to a regulation adopted by the board.
"Relocation" means a change in physical location of a stationary source or an emissions unit from one stationary source to another stationary source.
"Replacement" means the substitution of an emissions unit for an emissions unit located at a stationary source, which will thereafter perform the same function as the replaced emissions unit.
"Secondary emissions" means emissions which occur
or would occur as a result of the construction, reconstruction, modification
or operation of a new stationary source or an emissions unit, but
do not come from the stationary source itself. For the purpose of this article,
secondary emissions must be specific, well-defined, and quantifiable; and must
affect the same general areas as the stationary source which that
causes the secondary emissions. Secondary emissions include emissions from any
off site support facility which that would not be constructed or
increase its emissions except as a result of the construction or operation of
the stationary source or emissions unit. Secondary emissions do not
include any emissions which that come directly from a mobile
source, such as emissions from the tailpipe of a motor vehicle, from a train,
or from a vessel.
"Significant" means:
[ a. 1. ] In reference to an
emissions increase, an increase in potential to emit that would equal or exceed
any of the following rates:
[ a. In ozone nonattainment areas classified as serious or severe in 9VAC5-20-204: ]
|
Pollutant |
Emissions Rate |
|
Carbon Monoxide |
100 tons per year (tpy) |
|
Nitrogen Oxides |
[ |
|
Sulfur Dioxide |
40 tpy |
|
Particulate Matter (PM) |
25 tpy |
|
Particulate Matter (PM10) |
15 tpy |
|
Particulate Matter (PM2.5) |
10 tpy |
|
Volatile organic compounds |
25 tpy |
|
Lead |
0.6 tpy |
[ b. In all other areas:
|
Pollutant |
Emissions Rate |
|
Carbon Monoxide |
100 tons per year (tpy) |
|
Nitrogen Oxides |
40 tpy |
|
Sulfur Dioxide |
40 tpy |
|
Particulate Matter (PM) |
25 tpy |
|
Particulate Matter (PM10) |
15 tpy |
|
Particulate Matter (PM2.5) |
10 tpy |
|
Volatile organic compounds |
40 tpy |
|
Lead |
0.6 tpy ] |
[ b. 2. ] In reference to an
emissions increase for a regulated air pollutant not listed in subdivision
[ a 1 ] of this definition, there is no
emissions rate that shall be considered significant.
[ c. 3. ] If the particulate
matter (PM10 or PM2.5) emissions for a stationary source
or emissions unit can be determined in a manner acceptable to the board and the
emissions increase is determined to be significant using the emission rate for
particulate matter (PM10 or PM2.5), the stationary source
or emissions unit shall be considered to be significant for particulate matter
(PM). If the emissions of particulate matter (PM10 or PM2.5)
cannot be determined in a manner acceptable to the board, the emission rate for
particulate matter (PM) shall be used to determine whether the emissions increase
is significant.
"Significant emissions increase" means, for a regulated air pollutant, an increase in emissions that is significant for that pollutant.
"Site" means one or more contiguous or adjacent properties under the control of the same person (or persons under common control).
"Source category schedule for standards" means the schedule (i) issued pursuant to § 112(e) of the federal Clean Air Act for promulgating MACT standards issued pursuant to § 112(d) of the federal Clean Air Act and (ii) incorporated by reference into the regulations of the board in subdivision 2 of 9VAC5-60-92.
"Space heater" means any fixed or portable, liquid or gaseous fuel-fired, combustion unit used to heat air in a space, or used to heat air entering a space, for the purpose of maintaining an air temperature suitable for comfort, storage, or equipment operation. Space heaters do not include combustion units used primarily for the purpose of conditioning or processing raw materials or product, such as driers, kilns, or ovens.
"State enforceable" means all limitations and
conditions which that are enforceable as a practical matter,
including any regulation of the board, those requirements developed pursuant to
9VAC5-170-160, requirements within any applicable order or variance, and any
permit requirements established pursuant to this chapter.
"State operating permit" means a permit issued under the state operating permit program.
"State operating permit program" means an operating permit program (i) for issuing limitations and conditions for stationary sources; (ii) promulgated to meet the EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for the EPA and public comment prior to issuance of the final permit, and practicable enforceability; and (iii) codified in Article 5 (9VAC5-80-800 et seq.) of this part.
"Stationary source" means any building, structure,
facility or installation which that emits or may emit any
regulated air pollutant. A stationary source shall include all of the
pollutant-emitting activities which that belong to the same
industrial grouping, are located on one or more contiguous or adjacent
properties, and are under the control of the same person (or persons under
common control) except the activities of any watercraft or any nonroad engine.
Pollutant-emitting activities shall be considered as part of the same
industrial grouping if they belong to the same "major group" (i.e., which
that have the same two-digit code) as described in the "Standard
Industrial Classification Manual," as amended by the supplement
(see 9VAC5-20-21).
"Synthetic minor source" means a stationary
source whose potential to emit is constrained by state enforceable and
federally enforceable limits, so as to place that stationary source below the
threshold at which it would be subject to permit or other requirements
governing major stationary sources in regulations of the board or in the
federal Clean Air Act that otherwise has the potential to emit regulated
air pollutants in amounts that are at or above those for major stationary
sources, as applicable, but [ that has taken a restriction so
is subject to restrictions such ] that its potential to emit is
less than such amounts for major stationary sources. Such restrictions must be
enforceable as a practical matter. The term "synthetic minor source"
applies independently for each regulated air pollutant that the source has the
potential to emit.
"Temporary facility" means a facility that (i) is operated to achieve a specific objective (such as serving as a pilot test facility, a process feasibility project, or a remediation project) and (ii) does not contribute toward the commercial production of any product or service (including byproduct and intermediate product) during the operational period. Portable emissions units covered by the exemption under 9VAC5-80-1105 A 1 c and facilities used to augment or enable routine production are not considered temporary facilities for the purposes of this definition.
"Toxic pollutant" means any air pollutant (i)
listed in § 112(b) of the federal Clean Air Act, as amended by Subpart C
of 40 CFR Part 63 and (ii) incorporated by reference into the regulations of
the board at [ subdivision 1 of ] 9VAC5-60-92 [ B ],
or any other air pollutant that the board determines, through adoption of
regulation, to present a significant risk to public health. This term excludes
asbestos, fine mineral fibers, radionuclides, and any glycol ether that does
not have a TLV®.
"Uncontrolled emission rate" means the emission rate from an emissions unit when operating at maximum capacity without air pollution control equipment. Air pollution control equipment includes control equipment that is not vital to its operation, except that its use enables the owner to conform to applicable air pollution control laws and regulations. Annual uncontrolled emissions shall be based on the maximum annual rated capacity (based on 8,760 hours of operation per year) of the emissions unit, unless the emissions unit or stationary source is subject to state and federally enforceable permit conditions that limit the annual hours of operation. Enforceable permit conditions on the type or amount of material combusted, stored, or processed may be used in determining the uncontrolled emission rate of an emissions unit or stationary source. The uncontrolled emission rate of a stationary source is the sum of the uncontrolled emission rates of the individual emissions units. Secondary emissions do not count in determining the uncontrolled emission rate of a stationary source.
"Undeveloped site" means any site or facility at which no emissions units are located at the time the permit application is deemed complete, or at the time the owner begins actual construction, whichever occurs first. An undeveloped site also includes any site or facility at which all of the emissions units have been determined to be shut down pursuant to the provisions of 9VAC5-20-220.
"Vegetative waste" means decomposable materials generated by land clearing activities and includes shrub, bush and tree prunings, bark, brush, leaves, limbs, roots, and stumps. Vegetative waste does not include construction or demolition waste or any combination of them.
"Vegetative waste recycling/mulching operation" means any activity related to size reduction or separating, or both, of clean wood or vegetative waste, or both, by grinding, shredding, chipping, screening, or any combination of them.
9VAC5-80-1120. General.
A. No owner or other person shall begin actual construction,
reconstruction or modification of, or operate, any new
stationary source or any project subject to this article without first
obtaining from the board a permit to construct and operate or to modify and
operate the source under the provisions of this article. The owner may
not construct or operate the stationary source or project contrary to the terms
and conditions of that permit.
B. Except as provided in 9VAC5-80-1320 9VAC5-80-1105
A 1 c, no owner or other person shall relocate any stationary source or
emissions unit from one stationary source to another without first obtaining
from the board a minor NSR permit to relocate the stationary
source or unit.
C. No Except as provided in 9VAC5-80-1105 A 2 b, no
owner or other person shall reduce the outlet elevation of any stack or chimney
which discharges any regulated air pollutant from an affected
facility emissions unit without first obtaining a minor NSR
permit from the board.
D. The board may combine the requirements of and the
permits for emissions units within a stationary source subject to the new
source review program into one permit. Likewise the board may require that
applications for permits for emissions units within a stationary source
required by any provision of the new source review program be combined into one
application. The board will take actions to combine permit terms and
conditions as provided in 9VAC5-80-1255. Actions to combine permit terms and
conditions involve relocating the terms and conditions contained in two or more
permits issued to single stationary source to a single permit document. Actions
to combine permit terms and conditions in and of themselves are not a mechanism
for making changes to permits; such actions shall be taken under 9VAC5-80-1260
as explained in subsection E of this section.
E. The board may incorporate the terms and conditions of a
state operating permit into a permit issued pursuant to this article. The
permit issued pursuant to this article may supersede the state operating permit
provided the public participation provisions of the state operating permit
program are followed. The board may incorporate the terms and conditions of a
permit issued pursuant to this article into a state operating permit provided
all of the permitted emissions units are operational and determined to be in
compliance in accordance with 9VAC5-80-1200. The board will take actions
to make changes to permit terms and conditions as provided in 9VAC5-80-1260.
Nothing in this subsection is intended to imply that once an action has been
taken to make a change to a permit, the resulting permit change may not be
combined with other terms and conditions in a single permit document as
provided in subsection D of this section.
F. All terms and conditions of any minor NSR permit issued
under this article shall be federally enforceable except those that are
designated state-only enforceable under subdivision 1 of this subsection. Any
term or condition that is not federally enforceable shall be designated as
state-only enforceable as provided in subdivision 2 of this subsection.
1. A term or condition of any minor NSR permit issued
under this article shall not be federally enforceable if it is derived from
or is designed to implement Article 2 (9VAC5-40-130 et seq.) of 9VAC5
Chapter 40 Part II of 9VAC5-40 (Existing Stationary Sources),
Article 2 (9VAC5-50-130 et seq.) of 9VAC5 Chapter 50 Part II of
9VAC5-50 (New and Modified Stationary Sources), or Article 4
(9VAC5-60-200 et seq.) or Article 5 (9VAC5-60-300 et seq.) of 9VAC5 Chapter
60 Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).
2. Any term or condition of any minor NSR permit issued
under this article that is not federally enforceable shall be marked in the
permit as state-only enforceable and shall only be enforceable only
by the board. Incorrectly designating a term or condition as state-only
enforceable shall not provide a shield from federal enforcement of a term or
condition that is legally federally enforceable.
G. Nothing in the regulations of the board shall be construed
to prevent the board from granting minor NSR permits for programs of
construction or modification of a new stationary source or project
in planned incremental phases. In such cases, all [ net emissions uncontrolled
emission rate ] increases from all emissions units covered by the
program shall be added together for determining the applicability of this
article.
H. For sources subject to the federal hazardous air
pollutant new source review program, the provisions of the federal hazardous
air pollutant new source review program shall be implemented through this
article and the applicable article of 9VAC5 Chapter 60 (9VAC5-60). Permits
issued under this article shall be the administrative mechanism for issuing
approvals under the provisions of federal hazardous air pollutant new source
review program. Except as noted below, in cases where there are differences
between the provisions of this article and the provisions of federal hazardous
air pollutant new source review program, the more restrictive provisions shall
apply. The provisions of 9VAC5-80-1150 and 9VAC5-80-1160 shall not apply to
sources subject to the federal hazardous air pollutant new source review
program. Other sections of this article also provide requirements relative to
the application of this article to sources subject to the federal hazardous air
pollutant new source review program, in which case those provisions shall
prevail. This subsection applies only to the extent that the provisions of the
federal hazardous air pollutant new source review program are not being
implemented by other new source review program regulations of the board.
9VAC5-80-1140. Applications.
A. A single application is required identifying at a minimum
each emissions unit subject to the provisions of this article in the
new stationary source or the project, or affected by the stack outlet elevation
reduction. The application shall be submitted according to procedures
acceptable to the board. However, where several emissions units are included
in one project, a single application covering all units in the project may be
submitted.
B. A separate application is required for each new stationary source or project.
C. For new stationary sources or for projects with phased development, a single application should be submitted covering the entire new stationary source or project.
D. Any application, form, report, or certification submitted to the board shall comply with the provisions of 9VAC5-20-230.
E. Any application submitted pursuant to this article shall contain a certification signed by the applicant as follows:
"I certify that I understand that the existence of a minor
new source review permit under this article does not shield the
source from potential enforcement of any regulation of the board governing the
major new source review program and does not relieve the source of the
responsibility to comply with any applicable provision of the major NSR new
source review program regulations."
9VAC5-80-1150. Application information required.
A. The board shall furnish application forms to applicants.
Completion of these forms serves as initial registration of new and modified
stationary sources and emissions units subject to this article.
B. Each application for a minor NSR permit shall
include such information as may be required by the board to determine the
effect of the proposed new stationary source or emissions unit
on the ambient air quality and to determine compliance with the any
emission standards which are applicable. The information required shall
include, but is not limited to, the following:
1. Company name and address (or plant name and address if different from the company name), owner's name and agent, and telephone number and names of plant site manager or contact or both.
2. A description of the source's processes and products (by Standard Industrial Classification Code).
3. All emissions of regulated air pollutants.
a. A minor NSR permit application shall describe all
emissions of regulated air pollutants emitted from any emissions unit or group
of emissions units to be covered by the permit in the new stationary
source or project or affected by the stack outlet elevation reduction. The
permit application shall include a description of all changes in uncontrolled
emissions from the project.
b. Emissions shall be calculated as required in the minor NSR permit application form or instructions or in a manner acceptable to the board.
c. Fugitive emissions shall be included in the minor NSR permit application to the extent quantifiable.
4. Emissions rates in tons per year and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method.
5. Information needed to determine or regulate emissions as follows: fuels, fuel use, raw materials, production rates, loading rates, and operating schedules.
6. Identification and description of air pollution control equipment and compliance monitoring devices or activities.
7. Limitations on source operation affecting emissions or any work practice standards, where applicable, for all regulated air pollutants at the source.
8. Calculations on which the information in subdivisions 3 through 7 of this subsection is based. Any calculations shall include sufficient detail to permit assessment of the validity of such calculations.
9. Any additional information or documentation that the board
deems necessary to review and analyze the air pollution aspects of the new
stationary source or emissions unit the project, or the stack outlet
elevation reduction, including the submission of measured air quality data
at the proposed site prior to construction, reconstruction or modification.
Such measurements shall be accomplished using procedures acceptable to the
board.
C. The above information and analysis shall be determined and presented according to procedures and using methods acceptable to the board.
9VAC5-80-1160. Action on permit application.
A. Prior to submitting an application for processing under subsections B through F of this section, the owner may request a nonbinding applicability determination as to which particular provisions of the new source review program are applicable. The request for the applicability determination shall include sufficient information as may be necessary for the board to make an applicability determination and may include the same information required for an application. Within 30 days after receipt of a request, the board will (i) notify the applicant of the applicability determination or (ii) provide a determination that the information provided by the owner is insufficient to make an applicability determination, along with the identification of any deficiencies.
B. Within 30 days after receipt of an application, the
board will notify the applicant of the status of the application. The
notification of the initial determination with regard to the status of the
application will be provided by the board in writing and will include (i) a
determination as to which provisions of the new source review program are
applicable, (ii) the identification of any deficiencies, and (iii) a
determination as to whether the application contains sufficient information to
begin application review. The determination that the application has sufficient
information to begin review is not necessarily a determination that it is
complete. Within 30 days after receipt of any additional information, the board
will notify the applicant in writing of any deficiencies in such information.
The date of receipt of a complete application for processing under subsection B
C of this section shall be the date on which the board received all
required information, including any applicable permit fees, and the
provisions of § 10.1-1321.1 of the Virginia Air Pollution Control Law have
been met, if applicable.
B. C. The board will normally process an
application according to the steps specified in subdivisions 1 through 4 of
this subsection. Processing time for these steps is normally 90 days following
receipt of a complete application. If a public hearing is required, processing
time is normally 180 days following receipt of a complete application. The
board may extend this time period if additional information is needed.
1. Complete the preliminary review and analysis in accordance with 9VAC5-80-1190 and the preliminary determination of the board. This step may constitute the final step if the provisions of 9VAC5-80-1170 concerning public participation are not applicable.
2. When required, complete the public participation requirements in accordance with 9VAC5-80-1170.
3. Consider the public comments received in accordance with 9VAC5-80-1170.
4. Complete the final review and analysis and the final determination of the board.
C. D. The board will normally take final action
on an application after completion of the applicable steps in subsection B
C of this section, except in cases where direct consideration of the
application by the board is granted pursuant to 9VAC5-80-25. The board will
review any request made under 9VAC5-80-1170 F, and will take final action on
the request and application as provided in Part I (9VAC5-80-5 et seq.) of this
chapter.
D. E. The board shall notify the applicant in
writing of its decision on the application, including its reasons, and shall
also specify the applicable emission limitations standards. These
emission limitations standards are applicable during any emission
testing conducted in accordance with 9VAC5-80-1200.
E. F. The applicant may appeal the decision
pursuant to Part VIII (9VAC5-170-190 et seq.) of 9VAC5 Chapter 170 9VAC5-170
(Regulation for General Administration).
F. G. Within five days after notification to
the applicant pursuant to subsection C E of this section, the
notification and any comments received pursuant to the public comment period
and public hearing shall be made available for public inspection at the same
location as was the information in 9VAC5-80-1170 E 1.
9VAC5-80-1170. Public participation.
A. No later than 15 days after receiving the initial
determination notification required under 9VAC5-80-1160 A B, the
applicant for a minor NSR permit for a new major stationary
source or a major modification shall notify the public of the proposed
major stationary source or major modification in accordance with
subsection B of this section.
B. The public notice required by subsection A of this section shall be placed by the applicant in at least one newspaper of general circulation in the affected air quality control region. The notice shall be approved by the board and shall include, but not be limited to, the following:
1. The source name, location, and type;
2. The pollutants and the total quantity of each which the applicant estimates will be emitted, and a brief statement of the air quality impact of such pollutants;
3. The control technology proposed to be used at the time of the publication of the notice; and
4. The name and telephone number of a contact person, employed by the applicant, who can answer questions about the proposed source.
C. Upon a determination by the board that it will achieve the desired results in an equally effective manner, an applicant for a minor NSR permit may implement an alternative plan for notifying the public to that required in subsections A and B of this section.
D. Prior to the decision of the board, minor NSR permit applications as specified below shall be subject to a public comment period of at least 30 days. At the end of the public comment period, a public hearing shall be held in accordance with subsection E of this section.
1. Applications for stationary sources of hazardous air
pollutants requiring a case-by-case maximum achievable control technology
determination under Article 3 (9VAC5-60-120 et seq.) of 9VAC5 Chapter 60
Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).
2. Applications for new major stationary sources and major modifications.
3. Applications for projects that would result in an increase in the potential to emit of any regulated air pollutant that would equal or exceed 100 tons per year, considering any state and federally enforceable permit conditions that will be placed on the source by a minor NSR permit.
4. Applications for new stationary sources which
or projects that have the potential for public interest concerning air
quality issues, as determined by the board in its discretion. The
identification of such sources may shall be made using the
following nonexclusive criteria:
a. Whether the new stationary source or project is opposed by any person;
b. Whether the new stationary source or project has resulted in adverse media;
c. Whether the new stationary source or project has generated adverse comment through any public participation or governmental review process initiated by any other governmental agency; and
d. Whether the new stationary source or project has generated adverse comment by a local official, governing body or advisory board.
4. 5. Applications for stationary sources for
which any provision of the minor NSR permit is to be based upon a good
engineering practice (GEP) stack height that exceeds the height allowed by
subdivisions 1 and 2 of the GEP definition. The demonstration specified in
subdivision 3 of the GEP definition must be available during the public
comment period and required by 9VAC5-50-20 H 3 shall be included in the
application.
E. When a public comment period and public hearing are required, the board shall notify the public, by advertisement in at least one newspaper of general circulation in the affected air quality control region, of the opportunity for the public comment and the public hearing on the information available for public inspection under the provisions of subdivision 1 of this subsection. The notification shall be published at least 30 days prior to the day of the public hearing. For permits subject to § 10.1-1307.01 of the Code of Virginia, written comments will be accepted by the board for at least 15 days after any hearing, unless the board votes to shorten the period.
1. Information on the minor NSR permit application (exclusive of confidential information under 9VAC5-170-60), as well as the preliminary review and analysis and preliminary determination of the board, shall be available for public inspection during the entire public comment period in at least one location in the affected air quality control region. Any demonstration included in an application specified in subdivision D 5 of this section shall be available for public inspection during the public comment period.
2. A copy of the notice shall be sent to all local air pollution control agencies having jurisdiction in the affected air quality control region, all states sharing the affected air quality control region, and to the regional administrator, U.S. Environmental Protection Agency.
3. Notices of public comment periods and public hearings for major stationary sources and major modifications published under this section shall meet the requirements of § 10.1-1307.01 of the Virginia Air Pollution Control Law.
F. Following the initial publication of the notice required under subsection E of this section, the board will receive written requests for direct consideration of the minor NSR permit application by the board pursuant to the requirements of 9VAC5-80-25. In order to be considered, the request must be submitted no later than the end of the public comment period. A request for direct consideration of an application by the board shall contain the following information:
1. The name, mailing address, and telephone number of the requester.
2. The names and addresses of all persons for whom the requester is acting as a representative (for the purposes of this requirement, an unincorporated association is a person).
3. The reason why direct consideration by the board is requested.
4. A brief, informal statement setting forth the factual nature and the extent of the interest of the requester or of the persons for whom the requester is acting as representative in the application or preliminary determination, including an explanation of how and to what extent such interest would be directly and adversely affected by the issuance, denial or revision of the permit in question.
5. Where possible, specific references to the terms and conditions of the permit in question, together with suggested revisions and alterations of those terms and conditions that the requester considers are needed to conform the permit to the intent and provisions of the Virginia Air Pollution Control Law.
G. The board will review any request made under subsection F
of this section, and will take final action on the request as provided in
9VAC5-80-1160 C D.
H. In order to facilitate the efficient issuance of permits
under Articles 1 (9VAC5-80-50 et seq.) and 3 (9VAC5-80-360 et seq.) of this part,
upon request of the applicant the board shall process the minor NSR
permit application under this article using public participation
procedures meeting the requirements of this section and 9VAC5-80-270 or
9VAC5-80-670, as applicable.
9VAC5-80-1180. Standards and conditions for granting permits.
A. No minor NSR permit will be granted pursuant to
this article unless it is shown to the satisfaction of the board that the
source will comply with the following standards:
1. The source shall be designed, built and equipped to comply
with standards of performance prescribed under 9VAC5 Chapter 50 (9VAC5-50-10
et seq.) 9VAC5-50 (New and Modified Stationary Sources) and with
emission standards prescribed under 9VAC5 Chapter 60 (9VAC5-60-10 et seq.)
9VAC5-60 (Hazardous Air Pollutant Sources);
2. For sources subject to the federal hazardous air pollutant
new source review program, the source shall be designed, built, and equipped to
comply with the applicable emission standard and other requirements prescribed
in 40 CFR Part 61 or 63 or Article 3 (9VAC5-60-120 et seq.) of 9VAC5 Chapter
60 Part II of 9VAC5-60 (Hazardous Air Pollutant Sources), as
applicable;
3. The source shall be designed, built and equipped to operate without preventing or interfering with the attainment or maintenance of any applicable ambient air quality standard and without causing or exacerbating a violation of any applicable ambient air quality standard; and
4. The source shall be designed, built and equipped to operate without causing a violation of the applicable provisions of regulations of the board or the applicable control strategy portion of the implementation plan.
B. Permits Minor NSR permits may be granted
to stationary sources or emissions units that contain emission caps provided
the caps are made enforceable as a practical matter using the elements set
forth in subsection D of this section. The emission caps may be considered
in determining whether a stationary source is a synthetic minor source.
C. Permits granted pursuant to this article Minor
NSR permits may contain emissions standards as necessary to implement the
provisions of this article and 9VAC5-50-260. The following criteria apply in
establishing emission standards to the extent necessary to assure that
emissions levels are enforceable as a practical matter:
1. Standards may include limits on the level, quantity, rate, or concentration or any combination of them for each affected pollutant.
2. In no case shall a standard result in emissions which would exceed the emissions rate based on the potential to emit of the emissions unit.
3. The standard may prescribe, as an alternative to or a
supplement to an emission limitation a limit prescribed under
subdivision 1 of this subsection, an equipment, work practice, fuels
specification, process materials, maintenance, or operational standard standards,
or any combination of them.
D. Permits issued under this article Minor NSR
permits will contain, but need not be limited to, any of the following
elements as necessary to ensure that the permits are enforceable as a practical
matter:
1. Emission standards.
2. Conditions necessary to enforce emission standards. Conditions may include, but not be limited to, any of the following:
a. Limit Limits on fuel sulfur content.
b. Limit Limits on production rates with time
frames as appropriate to support the emission standards.
c. Limit Limits on raw material usage rate.
d. Limits on the minimum required capture, removal and overall control efficiency for any air pollution control equipment.
3. Specifications for permitted equipment, identified as thoroughly as possible. The identification shall include, but not be limited to, type, rated capacity, and size. Specifications included in the permit under this subdivision are for informational purposes only and do not form enforceable terms or conditions of the permit unless the specifications are needed to form the basis for one or more of the other terms or conditions in the permit.
4. Specifications for air pollution control equipment installed or to be installed. Specifications included in the permit under this subdivision are for informational purposes only and do not form enforceable terms or conditions of the permit unless the specifications are needed to form the basis for one or more of the other terms or conditions in the permit.
5. Specifications for air pollution control equipment operating parameters and the circumstances under which such equipment shall be operated, where necessary to ensure that the required overall control efficiency is achieved. The operating parameters may include, but need not be limited to, any of the following:
a. Pressure indicators and required pressure drop.
b. Temperature indicators and required temperature.
c. pH indicators and required pH.
d. Flow indicators and required flow.
6. Requirements for proper operation and maintenance of any pollution control equipment, and appropriate spare parts inventory.
7. Stack Performance test requirements.
8. Reporting or recordkeeping requirements, or both.
9. Continuous emission or air quality monitoring requirements, or both.
10. Other requirements as may be necessary to ensure compliance with the applicable regulations.
9VAC5-80-1190. Application review and analysis.
No minor NSR permit shall be granted pursuant to
this article unless compliance with the standards in 9VAC5-80-1180 is
demonstrated to the satisfaction of the board by a review and analysis of the
application performed on a source-by-source basis as specified below:
1. Applications for new stationary sources and projects shall be subject to the following review and analysis:
a. A control technology review to determine if the source
emissions units will be designed, built and equipped to comply with all
applicable standards of performance prescribed under 9VAC5 Chapter 50 (9VAC5-50-10
et seq.) 9VAC5-50 (New and Modified Stationary Sources).
b. An air quality analysis to determine the impact of pollutant emissions as may be deemed appropriate by the board.
2. Applications for stationary sources of hazardous toxic
air pollutants shall be subject to a control technology review to determine if
the source will be designed, built and equipped to comply with all applicable
emission standards prescribed under 9VAC5 Chapter 60 (9VAC5-60-10 et seq.)
9VAC5-60 (Hazardous Air Pollutant Sources).
3. Applications under 9VAC5-80-1120 C (concerning stack outlet elevation reduction) shall be subject to an air quality analysis to determine the impact of applicable criteria pollutant emissions as may be deemed appropriate by the board.
4. Applications for sources subject to the federal hazardous
air pollutant new source review program shall be subject to a control
technology review to determine if the source will be designed, built and
equipped to comply with all applicable emission standards prescribed under 40
CFR Part 61 or 63 or Article 3 (9VAC5-60-120 et seq.) of 9VAC5 Chapter 60
Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).
9VAC5-80-1200. Compliance determination and verification by performance testing.
A. For stationary sources other than those specified in subsection B of this section, compliance with standards of performance shall be determined in accordance with the provisions of 9VAC5-50-20 and shall be verified by performance tests in accordance with the provisions of 9VAC5-50-30.
B. For stationary sources of hazardous air toxic
pollutants, compliance with emission standards shall be determined in
accordance with the provisions of 9VAC5-60-20 and shall be verified by emission
tests in accordance with the provisions of 9VAC5-60-30.
C. Testing required by subsections A and B of this section
shall be conducted by the owner within 60 days after achieving the maximum
production rate at which the new or modified source will be operated,
but not later than 180 days after initial startup of the source; and 60 days
thereafter the board shall be provided by the owner with one or, upon request,
more copies of a written report of the results of the tests.
D. For sources subject to the provisions of 40 CFR Part 60, 61 or 63, the compliance determination and performance test requirements of subsections A, B and C of this section shall be met as specified in those parts of Title 40 of the Code of Federal Regulations.
E. For sources other than those specified in subsection D of this section, the requirements of subsections A, B and C of this section shall be met unless the board:
1. Specifies or approves, in specific cases, the use of a reference method with minor changes in methodology;
2. Approves the use of an equivalent method;
3. Approves the use of an alternative method, the results of which the board has determined to be adequate for indicating whether a specific source is in compliance;
4. Waives the requirement for testing because, based upon a
technical evaluation of the past performance of similar source types, using
similar control methods, the board reasonably expects the new or modified
source to perform in compliance with applicable standards; or
5. Waives the requirement for testing because the owner of the source has demonstrated by other means to the board's satisfaction that the source is in compliance with the applicable standard.
F. The provisions for the granting of waivers under subsection E of this section are intended for use in determining the initial compliance status of a source. The granting of a waiver does not obligate the board to grant any waivers once the source has been in operation for more than one year beyond the initial startup date.
G. The granting of a waiver under this section does not shield the source from potential enforcement of any permit term or condition, applicable requirement of the implementation plan, or any other applicable federal requirement promulgated under the federal Clean Air Act.
9VAC5-80-1210. Permit invalidation, suspension, revocation and enforcement.
A. In addition to the sources subject to this article, the provisions of this section shall apply to sources specified below:
1. Any stationary source (or portion of it), the construction, modification, or relocation of which commenced on or after March 17, 1972.
2. Any stationary source (or portion of it), the reconstruction of which commenced on or after December 10, 1976.
B. A minor NSR permit granted pursuant to
this article shall become invalid if a program of continuous construction,
reconstruction or modification is not commenced within [ the latest of
the following time frames: 1. Eighteen 18 ] months from the
date the minor NSR permit is granted [ ;. ]
[ 2. Nine months from the date of the issuance of the
last permit or other authorization (other than minor NSR permits)
granted pursuant to this article) from any governmental entity; or
3. Nine months from the date of the last resolution of any
litigation concerning any such permits or authorizations (including minor
NSR permits) granted pursuant to this article). ]
B. C. A minor NSR permit granted
pursuant to this article shall become invalid if a program of construction,
reconstruction or modification is discontinued for a period of 18 months or
more, or if a program of construction, reconstruction or modification is not
completed within a reasonable time. This provision does not apply to the period
between construction of the approved phases of a the phased
construction of a new stationary source or project; each phase must
commence construction within 18 months of the projected and approved
commencement date.
C. D. The board may extend the periods
prescribed in subsections A B and B C of this
section upon a satisfactory demonstration that an extension is justified.
Provided there is no substantive change to the application information, the
review and analysis, and the decision of the board, such extensions may be
granted using the procedures for minor amendments in 9VAC5-80-1280.
D. E. Any owner who constructs or operates a new
or modified source subject to this section not in accordance with
the terms and conditions of any permit to construct or operate, or any owner of
a new or modified source subject to this article section
who commences construction or operation without receiving a permit hereunder,
shall be subject to appropriate enforcement action including, but not limited
to, any specified in this section.
E. Permits issued under this article F. Minor NSR
permits shall be subject to such terms and conditions set forth in the
permit as the board may deem necessary to ensure compliance with all applicable
requirements of the regulations of the board.
F. G. The board may revoke any minor NSR
permit if the permittee:
1. Knowingly makes material misstatements in the permit application or any amendments to it;
2. Fails to comply with the terms or conditions of the permit;
3. Fails to comply with any emission standards applicable to an emissions unit included in the permit;
4. Causes emissions from the stationary source which result in
violations of, or interfere with the attainment and maintenance of, any ambient
air quality standard; or fails to operate in conformance with any applicable
control strategy, including any emission standards or emission emissions
limitations, in the implementation plan in effect at the time that an
application is submitted; or
5. Fails to comply with the applicable provisions of this article.
G. H. The board may suspend, under such
conditions and for such period of time as the board may prescribe, any minor
NSR permit for any of the grounds for revocation contained in subsection F
G of this section or for any other violations of the regulations of the
board.
H. I. The permittee shall comply with all terms
and conditions of the minor NSR permit. Any permit noncompliance
constitutes a violation of the Virginia Air Pollution Control Law and is
grounds for (i) enforcement action or (ii) suspension or revocation.
I. J. Violation of the regulations of the board
shall be grounds for revocation of minor NSR permits issued under
this article and are subject to the civil charges, penalties and all other
relief contained in Part V (9VAC5-170-120 et seq.) of 9VAC5 Chapter 170 9VAC5-170
(Regulation for General Administration) and the Virginia Air Pollution
Control Law.
J. K. The board shall notify the applicant in
writing of its decision, with its reasons, to change, suspend or revoke a minor
NSR permit, or to render a minor NSR permit invalid.
K. L. Nothing in the regulations of the board
shall be construed to prevent the board and the owner from making a mutual
determination that a minor NSR permit is invalid or revoked prior to any
final decision rendered under subsection J K of this section.
L. M. Nothing in the regulations of the board
shall be construed to prevent the board and the owner from making a mutual
determination that a minor NSR permit is rescinded because all of the
statutory or regulatory requirements (i) upon which the permit is based or (ii)
that necessitated issuance of the permit are no longer applicable.
M. N. Except with respect to minor NSR
permits issued in accordance with Article 3 (9VAC5-60-120 et seq.) of 9VAC5
Chapter 60 Part II of 9VAC5-60 (Hazardous Air Pollutant Sources),
the provisions of subsections A, B and C B, C, and D shall not
apply to sources subject to the federal hazardous air pollutant new source
review program.
9VAC5-80-1220. Existence of permit no defense.
The existence of a minor NSR permit under this
article shall not constitute defense to a violation of the Virginia Air
Pollution Control Law or the regulations of the board and shall not relieve any
owner of the responsibility to comply with any applicable regulations, laws,
ordinances and orders of the governmental entities having jurisdiction.
9VAC5-80-1240. Transfer of permits.
A. No person shall transfer a minor NSR permit from one location to another, or from one piece of equipment to another.
B. In the case of a transfer of ownership of a stationary source, the new owner shall abide by any current minor NSR permit issued to the previous owner. The new owner shall notify the board of the change in ownership within 30 days of the transfer.
C. In the case of a name change of a stationary source, the owner shall abide by any current minor NSR permit issued under the previous source name. The owner shall notify the board of the change in source name within 30 days of the name change.
D. The provisions of this section concerning the transfer of
a minor NSR permit from one location to another shall not apply to the
relocation of portable emission emissions units that are exempt
from the provisions of this article by 9VAC5-80-1320 A 1 c 9VAC5-80-1105
A 1 c.
E. The provisions of this section concerning the transfer of a minor NSR permit from one piece of equipment to another shall not apply to the replacement of an emissions unit that is exempt from the provisions of this article by 9VAC5-80-1105 A 2 a.
9VAC5-80-1250. General permits.
A. The requirements for issuance of a general permit are as follows:
1. The board may issue a general permit covering a stationary source or emissions unit category containing numerous similar stationary sources or emissions units that meet the following criteria:
a. All stationary sources or emissions units in the category shall be essentially the same in terms of operations and processes and emit either the same pollutants or those with similar characteristics.
b. Stationary sources or emissions units shall not be subject to case-by-case standards or requirements.
c. Stationary sources or emissions units shall be subject to the same or substantially similar requirements governing operation, emissions, monitoring, reporting, or recordkeeping.
2. Stationary sources or emissions units operating under the authority of a general permit shall comply with all requirements applicable to other permits issued under this article.
3. General permits shall (i) identify the criteria by which stationary sources or emissions units may qualify for the general permit and (ii) describe the process for stationary sources or emissions units to use in applying for the general permit.
4. General permits shall be issued in accordance with §
2.2-4006 A [ 9 8 ] of the Administrative Process Act.
5. In addition to fulfilling the requirements specified by law, the notice of public comment shall include, but not be limited to, the following:
a. The name, address and telephone number of a department contact from whom interested persons may obtain additional information including copies of the draft general permit;
b. The criteria to be used in determining which stationary sources or emissions units qualify for coverage under the general permit;
c. A brief description of the stationary source or emissions unit category that the department believes qualifies for coverage under the general permit including, but not limited to, an estimate of the number of individual stationary sources or emissions units in the category;
d. A brief description of the application process to be used by owners of stationary sources or emissions units to request coverage under the general permit; and
e. A brief description of the public comment procedures.
B. The requirements for application for coverage under a general permit are as follows:
1. Stationary sources or emissions units which qualify for
coverage under a general permit may apply to the board for coverage under the
terms of the general permit. Stationary sources or emissions units that do not
qualify for coverage under a general permit shall apply for a minor NSR
permit issued under the other provisions of this article.
2. The application shall meet the requirements of this article and include all information necessary to determine qualification for and to assure compliance with the general permit.
3. Stationary sources or emissions units that qualify for coverage under the general permit after coverage is granted to other stationary sources or emissions units in the category addressed by the general permit shall file an application with the board using the application process described in the general permit. The board shall grant authority to operate under the general permit to the stationary source or emissions unit if it determines that the stationary source or emissions unit meets the criteria set out in the general permit.
C. The requirements for granting authority to operate under a general permit are as follows:
1. The board shall grant authority to operate under the conditions and terms of the general permit to stationary sources or emissions units that meet the criteria set out in the general permit covering the specific stationary source or emissions unit category.
2. Granting authority to operate under a general permit to a stationary source or emissions unit covered by a general permit shall not require compliance with the public participation procedures under 9VAC5-80-1170.
3. A response to each general permit application may be provided at the discretion of the board. The general permit may specify a reasonable time period after which the owner of a stationary source or emissions unit that has submitted an application shall be deemed to be authorized to operate under the general permit.
4. Stationary sources or emissions units authorized to operate under a general permit may be issued a letter, a certificate, or a summary of the general permit provisions, limits, and requirements, or any other document which would attest that the stationary source or emissions unit is authorized to operate under the general permit.
5. The general permit shall specify where the general permit and the letter, certificate, summary or other document shall be maintained by the source.
D. The stationary source or emissions unit shall be subject
to enforcement action under 9VAC5-80-1210 for operation without a minor NSR
permit issued under this article if the stationary source or emissions
unit is later determined by the board not to qualify for the conditions and
terms of the general permit.
9VAC5-80-1255. Actions to combine permit terms and conditions.
A. General requirements for actions to combine permit terms and conditions are as follows:
1. Except as provided in subdivision 3 of this subsection, the board may take actions to combine permit terms and conditions as provided under subsections B through E of this section.
2. Requests to combine permit terms and conditions may be initiated by the permittee or by the board.
3. Under no circumstances may an action to combine permit terms and conditions be used for any of the following:
a. To combine the terms and conditions of (i) a federal operating permit, (ii) a PAL permit, or (iii) any permit that is or will be part of the implementation plan.
b. To take an action to issue a permit or change a permit for the fabrication, erection, installation, demolition, relocation, addition, replacement, or modification of an emissions unit that would result in a change in emissions that would otherwise (i) be subject to review under this article or (ii) require a permit or permit amendment under the new source review program.
c. To allow any stationary source or emissions unit to violate any federal requirement.
B. The board may take actions to combine the terms and conditions of state operating permits and new source review permits, along with any changes to state operating permits and new source review permits.
C. If the board and the owner make a mutual determination that it facilitates improved compliance or the efficient processing and issuing of permits, the board may take an action to combine the terms and conditions of permits for emissions units within a stationary source into one or more permits. Likewise the board may require that applications for permits for emissions units within a stationary source required by any permit program be combined into one application.
D. Actions to combine the terms and conditions of permits are subject to the following conditions:
1. Each term or condition in the combined permit shall be accompanied by a statement that specifies and references the origin (enabling permit program) of, along with the regulatory or any other authority for, the term or condition.
2. Each term or condition in the combined permit shall be accompanied by a statement that specifies the effective date of the term or condition.
3. Each term or condition in the combined permit shall be identified by its original designation (i.e., state-only enforceable or federally and state enforceable) consistent with the applicable enforceability designation of the term or condition in the contributing permit.
4. Except as provided in subsection E of this section, all terms and conditions in the contributing permits shall be included in the combined permit without change. The combined permit will supersede the contributing permits, which will no longer be effective.
E. Actions to make changes to permit terms and conditions as may be necessary to facilitate actions to combine permit terms and conditions may be accomplished in accordance with the minor amendment procedures (unless specified otherwise in this section) of the enabling permit program (i.e., the permit program that is the origin of the term or condition), subject to the following conditions:
1. Updates to regulatory or other authorities may be accomplished in accordance with the administrative amendment procedures of the enabling permit program.
2. If two or more terms or conditions apply to the same emissions unit or emissions units and are substantively equivalent, the more restrictive of the duplicate terms or conditions may be retained and the less restrictive one removed, subject to the provisions of subdivision 4 of this subsection.
3. If two or more similar terms or conditions apply to the same emissions unit or emissions units and one is substantively more restrictive than the others, the more restrictive of the terms or conditions shall be retained, regardless of whether the less restrictive terms or conditions are removed. If the less restrictive of the similar terms or conditions is removed, the provisions of subdivision 4 of this subsection apply.
4. The removal of similar terms or conditions from contributing permits is subject to the following conditions:
a. If any one of the terms or conditions removed is federally and state enforceable, the more restrictive term or condition that is retained in the combined permit shall be federally and state enforceable.
b. If any one of the terms or conditions originates in a permit subject to a major NSR program, that major NSR program shall become the effective enabling permit program for the more restrictive term or condition that is retained in the combined permit. If more than one major NSR program is the basis for a term or condition, all of the applicable major NSR programs shall be the enabling permit program for that term or condition.
c. The regulatory basis for all of the similar terms or conditions that are removed shall be included in the reference for the term or condition that is retained.
9VAC5-80-1260. Changes to Actions to change
permits.
A. The general requirements for making actions to
make changes to minor NSR permits are as follows:
1. Changes Except as provided in subdivision 3 of
this subsection, changes to a minor NSR permit issued under this
article shall be made as specified under subsections B and C of this
section and 9VAC5-80-1270 through 9VAC5-80-1300.
2. Changes to a minor NSR permit issued under this
article may be initiated by the permittee as specified in subsection B of
this section or by the board as specified in subsection C of this section.
3. Changes to a minor NSR permit issued under this article
and incorporated into a permit issued under Article 1 (9VAC5-80-50 et seq.) or
Article 3 (9VAC5-80-360 et seq.) of this part shall be made as specified in
Article 1 (9VAC5-80-50 et seq.) or Article 3 (9VAC5-80-360 et seq.) of this
part.
4. This section shall not be applicable to general permits.
B. The requirements for changes initiated by the permittee are as follows:
1. The permittee may initiate a change to a minor NSR
permit by submitting a written request to the board for an administrative permit
amendment, a minor permit amendment or a significant permit amendment. The
requirements for these permit revisions changes can be found in
9VAC5-80-1270 through 9VAC5-80-1290.
2. A request for a change by a permittee shall include a statement of the reason for the proposed change.
C. The board may initiate a change to a minor NSR permit through the use of permit reopenings as specified in 9VAC5-80-1300.
9VAC5-80-1270. Administrative permit amendments.
A. Administrative permit amendments shall be required used
for and limited to the following:
1. Correction of typographical or any other error, defect or irregularity which does not substantially affect the permit.
2. Identification of a change in the name, address, or phone number of any person identified in the permit, or of a similar minor administrative change at the source.
3. Change in ownership or operational control of a source where the board determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the board and the requirements of 9VAC5-80-1240 have been fulfilled.
4. The combining of permits under the new source review
program as provided in 9VAC5-80-1120 D.
B. The administrative permit amendment procedures are as follows:
1. The board will normally take final action on a request for an administrative permit amendment no more than 60 days from receipt of the request.
2. The board will incorporate the changes without providing notice to the public under 9VAC5-80-1170 and designate in the permit amendment that such permit revisions have been made pursuant to this section.
3. The owner may implement the changes addressed in the request for an administrative amendment immediately upon submittal of the request.
9VAC5-80-1280. Minor permit amendments.
A. Minor permit amendment procedures shall be used only for those permit amendments that meet all of the following criteria:
1. Do not violate any applicable federal requirement;.
2. Do not involve significant changes to existing monitoring,
reporting, or recordkeeping requirements that would make the permit
requirements less stringent, such as a change to the method of monitoring to be
used, a change to the method of demonstrating compliance or a relaxation of
reporting or recordkeeping requirements;.
3. Do not require or change a case-by-case determination of an
emission emissions limitation or other standard; requirement.
4. Do Except as provided in subdivision C 2 of this
section, do not seek to establish or change a permit term or condition (i)
for which there is no corresponding underlying applicable regulatory
requirement and (ii) that the source has assumed to avoid an applicable
regulatory requirement to which the source would otherwise be subject. Such
terms and conditions include:
a. An emissions cap assumed to avoid classification as a modification
under project subject to the new source review program or as a
modification under § 112 of the federal Clean Air Act; and
b. An alternative emissions limit approved pursuant to
regulations promulgated under § 112(i)(5) of the federal Clean Air Act;.
5. Are not modifications under the new source review program
or under § 112 of the federal Clean Air Act; and that would otherwise
require a permit under the new source review program.
6. Are not required to be processed as a significant amendment under 9VAC5-80-1290 or as an administrative permit amendment under 9VAC5-80-1270.
B. Notwithstanding subsection A of this section, minor permit amendment procedures may be used for permit amendments that meet any of the following criteria:
1. Involve the use of economic incentives, emissions trading, and other similar approaches to the extent that such minor permit amendment procedures are explicitly provided for in a regulation of the board or a federally-approved program.
2. Require new or more frequent monitoring or reporting by the permittee or a reduction in the level of an emissions cap.
3. Designate any minor NSR permit term or permit
condition that meets the criteria in 9VAC5-80-1120 F 1 (i) as state-only
enforceable as provided in 9VAC5-80-1120 F 2 for any minor NSR permit issued
under this article or any repealed or amended regulation from which
this article is derived.
4. Apply any minor NSR permit term or condition that is applicable to an existing emissions unit to its replacement emissions unit that otherwise meets the requirements for exemption from the minor new source review permit program requirements under the provisions of 9VAC5-80-1105 A 2 a.
C. Notwithstanding subsection A of this section, minor
Minor permit amendment procedures may be used for permit amendments
involving the rescission of a provision of a minor NSR permit if the
board and the owner make a mutual determination that the provision is rescinded
because all of the underlying statutory or regulatory requirements (i)
upon which the provision is based or (ii) that necessitated inclusion of the
provision are no longer applicable.
1. In order for the underlying statutory and regulatory requirements to be considered no longer applicable, the provision of the permit that is being rescinded must not cover a regulated air pollutant.
2. Any emissions cap contained in the permit shall be adjusted downward appropriately so that the emissions unit's potential to emit does not reflect any compound no longer considered a regulated air pollutant.
D. A request for the use of minor permit amendment procedures
shall include all of the following: 1. A a description of the
change, the emissions resulting from the change, and any new applicable
regulatory requirements that will apply if the change occurs. 2. A,
accompanied by a request that such procedures be used. The applicant
may, at the applicant's discretion, include a suggested proposed permit
amendment.
E. The public participation requirements of 9VAC5-80-1170 shall not extend to minor permit amendments.
F. Normally within 90 days of receipt by the board of a complete request under minor permit amendment procedures, the board will do one of the following:
1. Issue the permit amendment as proposed.
2. Deny the permit amendment request.
3. Determine that the requested amendment does not meet the minor permit amendment criteria and should be reviewed under the significant amendment procedures.
G. The requirements for making changes are as follow follows:
1. The owner may make the change proposed in the minor permit amendment request immediately after the request is filed.
2. After the change under subdivision 1 of this subsection is
made, and until the board takes any of the actions specified in subsection F of
this section, the source shall comply with both the applicable regulatory
requirements governing the change and the proposed permit terms and
conditions amendment.
3. During the time period specified in subdivision 2 of this subsection, the owner need not comply with the existing permit terms and conditions he seeks to modify if the applicant has submitted a suggested proposed permit amendment pursuant to subsection D of this section. However, if the owner fails to comply with the proposed permit terms and conditions during this time period, the existing permit terms and conditions he seeks to modify may be enforced against him.
9VAC5-80-1290. Significant amendment procedures.
A. The criteria for use of significant amendment procedures are as follows:
1. Significant amendment procedures shall be used for requesting permit amendments that do not qualify as minor permit amendments under 9VAC5-80-1280 or as administrative amendments under 9VAC5-80-1270.
2. Significant amendment procedures shall be used for those permit amendments that meet any one of the following criteria:
a. Involve significant changes to existing monitoring, reporting, or recordkeeping requirements that would make the permit requirements less stringent, such as a change to the method of monitoring to be used, a change to the method of demonstrating compliance or a relaxation of reporting or recordkeeping requirements.
b. Require or change a case-by-case determination of an emission
emissions limitation or other standard requirement.
c. Seek to establish or change a minor NSR permit term or condition (i) for which there is no corresponding underlying applicable regulatory requirement and (ii) that the source has assumed to avoid an applicable regulatory requirement to which the source would otherwise be subject. Such terms and conditions include:
(1) An emissions cap assumed to avoid classification as a modification
under project subject to the new source review program or as a
modification under § 112 of the federal Clean Air Act; and
(2) An alternative emissions limit approved pursuant to regulations promulgated under § 112(i)(5) of the federal Clean Air Act.
3. Significant amendment procedures may not be used to bypass the public participation requirements in 9VAC5-80-1170 for an application for a project that would be subject to the minor new source review program.
B. A request for a significant permit amendment shall include a description of the change, the emissions resulting from the change, and any new applicable regulatory requirements that will apply if the change occurs. The applicant may, at the applicant's discretion, include a suggested draft permit amendment.
C. The At the discretion of the board, the
provisions of 9VAC5-80-1170 D and E shall apply to requests made under
this section if the permit is for a stationary source emissions unit
subject to the request under this section was subject to review in any previous
permit application that was subject to 9VAC5-80-1170.
D. The board will normally take final action on significant permit amendments within 90 days after receipt of a complete request. If a public hearing is required, processing time for a permit amendment is normally 180 days following receipt of a complete request except in cases where direct consideration of the request by the board is granted pursuant to 9VAC5-80-25. The board may extend this time period if additional information is needed.
E. The owner shall not make the change applied for in the significant amendment request until the amendment is approved by the board under subsection D of this section.
9VAC5-80-1300. Reopening for cause.
A. A minor NSR permit may be reopened and amended
revised under any of the following situations:
1. Additional regulatory requirements become applicable to the emissions units covered by the permit after a permit is issued but prior to commencement of construction.
2. The board determines that the permit contains a material
mistake or that inaccurate statements were made in establishing the emissions
standards or other terms or conditions of the permit.
3. The board determines that the permit must be amended to
assure compliance with the applicable regulatory requirements or that the terms
and conditions of the permit are not sufficient to meet all of the standards
and requirements contained in this article.
4. A new emission standard prescribed under 40 CFR Part 60, 61 or 63 becomes applicable after a permit is issued but prior to initial startup.
B. Proceedings to reopen and reissue a minor NSR permit shall follow the same procedures as apply to initial permit issuance and shall affect only those parts of the permit for which cause to reopen exists. Such reopening shall be made as expeditiously as practicable.
C. Reopenings shall not be initiated before a notice of such intent is provided to the source by the board at least 30 days in advance of the date that the permit is to be reopened, except that the board may provide a shorter time period in the case of an emergency.
9VAC5-80-1320. Permit exemption levels. (Repealed.)
A. The general requirements for permit exemption levels
are as follows:
1. The provisions of this article do not apply to the
following stationary sources or emissions units:
a. The construction, reconstruction, relocation or
modification of any stationary source or emissions unit that is exempt under
the provisions of subsections B through F of this section.
b. The reconstruction of any stationary source or emissions
unit if the potential to emit resulting from the reconstruction will not
increase.
c. The relocation of a portable emissions unit provided
that:
(1) The new emissions from the portable emissions unit are
secondary emissions;
(2) The portable emissions unit has previously been
permitted or is subject to a general permit;
(3) The unit would not undergo modification or reconstruction;
(4) The unit is suitable to the area in which it is to be
located; and
(5) Reasonable notice is given to the board prior to the
relocation identifying the proposed new location and the probable duration of
operation at the new location. Such notice shall be given to the board not less
than 15 days in advance of the proposed relocation unless a different time
duration is previously approved by the board.
d. The reactivation of a stationary source unless a
determination concerning shutdown has been made pursuant to the provisions of
9VAC5-20-220.
e. The use by any source of an alternative fuel or raw
material, if the following conditions are met:
(1) The owner demonstrates to the board that, as a result
of trial burns at the owner's facility or other facilities or other sufficient
data, the emissions resulting from the use of the alternative fuel or raw
material supply are decreased. No demonstration will be required for the use of
processed animal fat, processed fish oil, processed vegetable oil, distillate
oil, or any mixture thereof in place of the same quantity of residual oil to
fire industrial boilers.
(2) The use of an alternative fuel or raw material would
not be subject to review under this article as a modification.
2. In determining whether a facility source is exempt from
the provisions of this article, the provisions of subsections B through D of
this section are independent from the provisions of subsections E and F of this
section. A source must be determined to be exempt both under the provisions of
subsections B through D taken as a group and under the provisions of subsection
E or F to be exempt from this article.
3. In determining whether a facility is exempt from the
provisions of this article under the provisions of subsection B of this
section, the definitions in 9VAC5 Chapter 40 (9VAC5-40-10 et seq.) that would
cover the facility if it were an existing source shall be used unless deemed inappropriate
by the board.
4. Any owner claiming that a facility is exempt from this
article under the provisions of this section shall keep records as may be
necessary to demonstrate to the satisfaction of the board that the facility was
exempt at the time a permit would have otherwise been required under this
article.
B. Facilities as specified below shall be exempt from the
provisions of this article as they pertain to construction, modification,
reconstruction or relocation.
1. Fuel burning equipment units (external combustion units,
not engines and turbines) as follows:
a. Using solid fuel with a maximum heat input of less than
1,000,000 Btu per hour.
b. Using liquid fuel with a maximum heat input of less than
10,000,000 Btu per hour.
c. Using liquid and gaseous fuel with a maximum heat input
of less than 10,000,000 Btu per hour.
d. Using gaseous fuel with a maximum heat input of less
than 50,000,000 Btu per hour.
2. Engines and turbines used for emergency purposes only
and which do not exceed 500 hours of operation per year at a single stationary
source as follows:
a. Gasoline engines with an aggregate rated brake (output)
horsepower of less than 910 hp and gasoline engines powering electrical
generators having an aggregate rated electrical power output of less than 611
kilowatts.
b. Diesel engines with an aggregate rated brake (output)
horsepower of less than 1,675 hp and diesel engines powering electrical
generators having an aggregate rated electrical power output of less than 1125
kilowatts.
c. Combustion gas turbines with an aggregate of less than
10,000,000 Btu per hour heat input (low heating value).
3. Engines that power mobile sources during periods of
maintenance, repair or testing.
4. Volatile organic compound storage and transfer operations
involving petroleum liquids and other volatile organic compounds with a vapor
pressure less than 1.5 pounds per square inch absolute under actual storage
conditions or, in the case of loading or processing, under actual loading or
processing conditions; and any operation specified below:
a. Volatile organic compound transfer operations involving:
(1) Any tank of 2,000 gallons or less storage capacity; or
(2) Any operation outside the volatile organic compound
emissions control areas designated in 9VAC5-20-206.
b. Volatile organic compound storage operations involving
any tank of 40,000 gallons or less storage capacity.
5. Vehicle customizing coating operations, if production is
less than 20 vehicles per day.
6. Vehicle refinishing operations.
7. Coating operations for the exterior of fully assembled
aircraft or marine vessels.
8. Petroleum liquid storage and transfer operations
involving petroleum liquids with a vapor pressure less than 1.5 pounds per
square inch absolute under actual storage conditions or, in the case of loading
or processing, under actual loading or processing conditions (kerosene and fuel
oil used for household heating have vapor pressures of less than 1.5 pounds per
square inch absolute under actual storage conditions; therefore, kerosene and
fuel oil are not subject to the provisions of this article when used or stored
at ambient temperatures); and any operation or facility specified below:
a. Gasoline bulk loading operations at bulk terminals
located outside volatile organic compound emissions control areas designated in
9VAC5-20-206.
b. Gasoline dispensing facilities.
c. Gasoline bulk loading operations at bulk plants:
(1) With an expected daily throughput of less than 4,000
gallons; or
(2) Located outside volatile organic compound emissions
control areas designated in 9VAC5-20-206.
d. Account/tank trucks; however, permits issued for
gasoline storage/transfer facilities should include a provision that all
associated account/tank trucks meet the same requirements as those trucks
serving existing facilities.
e. Petroleum liquid storage operations involving:
(1) Any tank of 40,000 gallons or less storage capacity;
(2) Any tank of less than 420,000 gallons storage capacity
for crude oil or condensate stored, processed or treated at a drilling and
production facility prior to custody transfer; or
(3) Any tank storing waxy, heavy pour crude oil.
9. Petroleum dry cleaning plants with a total
manufacturers' rated solvent dryer capacity less than 84 pounds as determined
by the applicable new source performance standard in 9VAC5-50-410.
10. Any addition of, relocation of or change to a
woodworking machine within a wood product manufacturing plant provided the
system air movement capacity, expressed as the cubic feet per minute of air, is
not increased and maximum control efficiency of the control system is not
decreased.
11. Wood sawmills and planing mills primarily engaged in
sawing rough lumber and timber from logs and bolts, or resawing cants and
flitches into lumber, including box lumber and softwood cut stock; planing
mills combined with sawmills; and separately operated planing mills that are
engaged primarily in producing surfaced lumber and standard workings or
patterns of lumber. This also includes facilities primarily engaged in sawing
lath and railroad ties and in producing tobacco hogshead stock, wood chips, and
snow fence lath. This exemption does not include any facility that engages in
the kiln drying of lumber.
12. Exhaust flares at natural gas and coalbed methane
extraction wells.
C. The exemption of new and relocated sources shall be
determined as specified below:
1. Stationary sources with a potential to emit at rates
less than all of the emission rates specified below shall be exempt from the
provisions of this article pertaining to construction or relocation.
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2. Facilities exempted by subsection B of this section
shall not be included in the determination of potential to emit of a stationary
source for purposes of exempting sources under this subsection.
3. If the particulate matter (PM10) emissions
for a stationary source can be determined in a manner acceptable to the board
and the stationary source is deemed exempt using the emission rate for
particulate matter (PM10), the stationary source shall be considered
to be exempt for particulate matter. If the emissions of particulate matter (PM10)
cannot be determined in a manner acceptable to the board, the emission rate for
particulate matter shall be used to determine the exemption status.
D. The exemption of modified and reconstructed sources
shall be determined as specified below:
1. Stationary sources with net emissions increases less than
all of the emission rates specified below shall be exempt from the provisions
of this article pertaining to modification or reconstruction.
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2. Facilities exempted by subsection B of this section
shall not be included in the determination of net emissions increase of a
stationary source for purposes of exempting sources under this subsection.
However, any other increases and decreases in the uncontrolled emission rate at
the source that are concurrent with a particular change shall be included in
the determination of net emissions increase of a stationary source for purposes
of exempting sources under this subsection, and if the change is not exempt,
the other increases shall be subject to 9VAC5-50-260 C.
3. If the particulate matter (PM10) emissions
for a stationary source can be determined in a manner acceptable to the board
and the stationary source is deemed exempt using the emission rate for
particulate matter (PM10), the stationary source shall be considered
to be exempt for particulate matter. If the emissions of particulate matter (PM10)
cannot be determined in a manner acceptable to the board, the emission rate for
particulate matter shall be used to determine the exemption status.
E. Exemptions for stationary sources of toxic pollutants
not subject to the federal hazardous air pollutant new source review program
shall be as follows:
1. Stationary sources exempt from the requirements of
Article 5 (9VAC5-60-300 et seq.) of 9VAC5 Chapter 60 as provided in
9VAC5-60-300 C 1, C 2, D or E shall be exempt from the provisions of this
article.
2. Facilities as specified below shall not be exempt,
regardless of size or emission rate, from the provisions of this article.
a. Incinerators, unless the incinerator is used exclusively
as air pollution control equipment.
b. Ethylene oxide sterilizers.
c. Boilers, incinerators, or industrial furnaces as defined
in 40 CFR 260.10 and subject to 9VAC20 Chapter 60 (9VAC20-60).
F. Any source category or portion of a source category
subject to the federal hazardous air pollutant new source review program shall
be exempt from the provisions of this article if specifically exempted from
that program by 40 CFR Part 61 or 63.
VA.R. Doc. No. R06-106; Filed September 12, 2012, 11:29 a.m.
DEPARTMENT OF ENVIRONMENTAL QUALITY
Proposed Regulation
Title of Regulation: 9VAC15-70. Small Renewable Energy Projects (Combustion) Permit by Rule (adding 9VAC15-70-10 through 9VAC15-70-140).
Statutory Authority: § 10.1-1197.6 of the Code of Virginia.
Public Hearing Information: No public hearings are scheduled.
Public Comment Deadline: December 10, 2012.
Agency Contact: Carol C. Wampler, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4579, FAX (804) 698-4346, TTY (804) 698-4021, or email carol.wampler@deq.virginia.gov.
Basis: This regulatory action is undertaken by the Department of Environmental Quality (DEQ) pursuant to §§ 10.1-1197.5 through 10.1-1197.11 of the Code of Virginia (Chapters 808 and 854 of the 2009 Acts of Assembly). The legislation mandates that DEQ develop one or more permits by rule for small renewable energy projects.
Purpose: The purpose of this regulatory action is to implement 2009 state legislation requiring DEQ to develop one or more permits by rule for certain renewable energy projects with rated capacity not exceeding 20 megawatts. By means of this legislation, the General Assembly moved permitting authority for these projects from the State Corporation Commission (SCC) to DEQ. By requiring a permit by rule, the legislature is mandating that permit requirements be set forth up front within this regulation, rather than being developed on a case-by-case basis. The legislation mandates that the permit by rule include conditions and standards necessary to protect the Commonwealth's natural resources. The proposal establishes requirements for potential environmental impacts analyses, mitigation plans, public participation, permit fees, inter-agency consultations, compliance, and enforcement. The legislation requires DEQ to determine if multiple permits by rule are necessary to address all the renewable energy media. DEQ determined that multiple permits by rule are necessary. This proposal constitutes DEQ's permit by rule for combustion energy projects; i.e., those projects that generate electricity from biomass, energy from waste, and municipal solid waste.
This regulatory action is necessary for DEQ to carry out the requirements of Chapters 808 and 854 of the 2009 Acts of Assembly (hereinafter "2009 statute"). The regulatory action is essential to protect the health, safety, and welfare of Virginia citizens because it will establish necessary requirements, other than those established in applicable environmental permits, to protect Virginias natural resources that may be affected by the construction and operation of small renewable energy projects.
Substance: This regulatory action addresses the need for a reasonable degree of certainty and timeliness in the natural-resource protections required of small combustion energy projects by setting forth, as fully as practicable, these required protections "up front" in this new permit by rule for combustion energy projects. The regulatory action describes how DEQ will address analysis of potential environmental impacts, mitigation plans, public participation, permit fees, inter-agency consultations, compliance, enforcement, and other topics that may be brought up during the public comment period.
Issues: The primary advantages of the proposed regulation to the public include the following:
For any individual or company wishing to develop a small combustion energy project, the proposed regulation provides certain, consistent and, DEQ believes, reasonable standards for obtaining a permit to construct and operate. Furthermore, the proposal mandates that DEQ process permit applications in no more than 90 days; a timeframe that should help developers in their planning. Provision of certain and timely regulatory requirements may assist developers in obtaining project financing.
For individuals or companies wishing to develop very small projects (e.g., 5 MW and below) or projects falling into certain categories (e.g., smaller than 10 acres or utilizing existing buildings or parking lots), the proposed 9VAC15-70-130 allows the applicant to perform a greatly reduced number of regulatory requirements. This provision should make it less costly to develop residential-scale and community-scale projects.
Another advantage to the regulated community, government officials, and the public is that this proposal creates a clear and, DEQ believes, an efficient path for development of combustion-related energy in Virginia. Developing and expanding new, energy-related industry in Virginia is also a boost for our economy and a significant step in creating energy independence from foreign oil interests.
Of interest is the agreement of the regulatory advisory panel (RAP) a group comprised of representatives from environmental advocacy groups, industry, local government, academia, industry, and state agencies on all issues presented in the proposal. In a number of states, interested parties and government agencies are debating what natural-resource protections are appropriate for renewable energy projects. RAP members who have experience with such projects and regulations across the country expressed the view that Virginia's proposed permits by rule are fair, balanced, and appropriately protective of natural resources, while not over burdening business interests. The fact that the RAP was able to agree on all issues was a significant milestone in creating a constructive and productive process for approving proposed renewable energy projects in Virginia.
The proposal poses no known disadvantages to the public or the Commonwealth.
Department of Planning and Budget's Economic Impact Analysis:
Summary of the Proposed Amendments to Regulation. Pursuant to 2009 Acts of Assembly, Chapters 808 and 854, the Department of Environmental Quality (DEQ) proposes to establish requirements for permits by rule for "combustion energy projects" with rated capacity not exceeding 20 megawatts. The proposed regulations define combustion energy project as a small renewable energy project that: 1) is an electrical generation facility with a rated capacity not exceeding 20 megawatts that generates electricity only from biomass, energy from waste, or municipal solid waste; and 2) utilizes a fuel or feedstock which is addressed as a regulated solid waste by 9VAC20-81, 9VAC20-60, or 9VAC20-120; is defined as biomass pursuant to § 10.1-1308.1 of the Code of Virginia; or both. By means of the 2009 legislation, the General Assembly moved permitting authority for these projects from the State Corporation Commission (SCC) to DEQ. By requiring a "permit by rule," the legislature is mandating that permit requirements be set forth "up front" within this regulation, rather than being developed on a case-by-case basis.
Result of Analysis. The benefits likely exceed the costs for all proposed changes.
Estimated Economic Impact. Prior to the 2009 legislation small renewable energy projects were to be permitted on a case-by-case basis by the SCC. For those considering small combustion energy projects there was large uncertainty concerning the requirements and potential costs of completing a project, as well as how long the permitting process would take. The permit by rule framework eliminates much of that uncertainty. Applicants need to meet the 14 criteria set forth by § 10.1-1197.6 B of the Code of Virginia to obtain permit by rule. Further, the proposed regulations specify that DEQ must render a decision concerning the permit application within 90 days. This significant reduction in uncertainty is in itself beneficial and will increase the likelihood that net beneficial projects will go forward.
According to the Union of Concerned Scientists, most scientists believe that a wide range of biomass resources are "beneficial" because their use will reduce overall carbon emissions. Among other resources, beneficial biomass includes
1. energy crops that don't compete with food crops for land,
2. portions of crop residues such as wheat straw or corn stover,
3. wood and forest residues, and
4. clean municipal and industrial wastes.
Beneficial biomass use can be considered part of the terrestrial carbon cyclethe balanced cycling of carbon from the atmosphere into plants and then into soils and the atmosphere during plant decay. When biopower is developed properly, emissions of biomass carbon are taken up or recycled by subsequent plant growth within a relatively short time, resulting in low net carbon emissions.1 Biomass, even though it releases CO2 when burned, overall produces less carbon dioxide than do fossil fuels because plants grown to replenish the resource are assumed to reabsorb those emissions.2 Thus, to the degree that the likely increase in generation of combustion energy replaces more polluting forms of energy, there will likely be some benefit to the environment.
DEQ staff is currently aware of three proposed projects that could be subject to the new regulation, if the current SCC process is not completed prior to these regulations becoming final and effective. Prior to these three projects, there was no known small combustion-energy project that went forward when permitting authority was vested with the SCC. Since projects were to be permitted on a case-by-case basis, a precise comparison of the costs for establishing small combustion energy projects under the prior system with the costs under the proposed permit by rule system cannot be made. Given both the significant benefit for reduced risk, reduced time cost, and reduced administrative costs for both applicants and the state inherent in the permit by rule system, total application costs will likely be reduced under the proposed regulation.
Businesses and Entities Affected. The proposed amendments affect individuals, businesses, or other entities wishing to develop a small combustion energy project with rated capacity less than or equal to 20 megawatts, but greater than 5 megawatts. DEQ staff is currently aware of three proposed projects that would be affected by the proposed regulations.
Localities Particularly Affected. The proposed regulation applies statewide and is not designed to have a disproportionate material impact on any particular locality.
Projected Impact on Employment. The statutes and proposed regulation will increase the likelihood that small combustion energy projects will go forward. Consequently, the proposed regulation may have a small positive impact on employment.
Effects on the Use and Value of Private Property. The statutes and proposed regulation will increase the likelihood that small combustion energy projects will go forward. Consequently, the proposed regulation may have a small positive impact on the value of land appropriate for such projects and entities that may be considering generating combustion energy.
Small Businesses: Costs and Other Effects. The statutes and proposed regulation will reduce risk, time costs, and administrative costs for small firms wishing to develop a small combustion energy project.
Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments will not produce an adverse impact on small businesses.
Real Estate Development Costs. The statutes and proposed regulation will reduce the cost of developing property for combustion energy projects.
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.
___________________________
1 Source: Union of Concerned Scientists website (http://www.ucsusa.org/), December 15, 2011.
2 Source: Hamilton, Tyler, Biofuels vs. Biomass
Electricity, Technology Review, Massachusetts Institute of Technology, May 8,
2009.
Agency's Response to Economic Impact Analysis: The Department of Environmental Quality has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.
Summary:
The proposed regulations establish requirements for permits by rule for combustion energy projects with rated capacity not exceeding 20 megawatts. The proposal establishes requirements for potential environmental impacts analyses, mitigation plans, public participation, permit fees, interagency consultations, compliance, and enforcement.
CHAPTER 70
SMALL RENEWABLE ENERGY PROJECTS (COMBUSTION) PERMIT BY RULE
9VAC15-70-10. Defintions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Applicant" means the owner or operator who submits an application to the department for a permit by rule pursuant to this chapter.
"Archive search" means a search of DHR's cultural resource inventory for the presence of previously recorded archaeological sites and for architectural structures and districts.
"Coastal Avian Protection Zones" or "CAPZ" means the areas designated on the map of "Coastal Avian Protection Zones" generated on the department's Coastal GEMS geospatial data system (9VAC15-70-120 C 1).
"Combustion energy project," or "project" means a small renewable energy project that:
1. Is an electrical generation facility with a rated capacity not exceeding 20 megawatts that generates electricity only from biomass, energy from waste, or municipal solid waste; and
2. Utilizes a fuel or feedstock that is addressed as a regulated solid waste by 9VAC20-81, 9VAC20-60, or 9VAC20-120; is defined as biomass pursuant to § 10.1-1308.1 of the Code of Virginia; or both.
"Department" means the Department of Environmental Quality, its director, or the director's designee.
"DCR" means the Department of Conservation and Recreation.
"DGIF" means the Department of Game and Inland Fisheries.
"DHR" means the Department of Historic Resources.
"Disturbance zone" means the area within the site directly impacted by construction and operation of the combustion energy project.
"Historic resource" means any prehistoric or historic district, site, building, structure, object, or cultural landscape that is included or meets the criteria necessary for inclusion in the Virginia Landmarks Register pursuant to the authorities of § 10.1-2205 of the Code of Virginia and in accordance with 17VAC5-30-40 through 17VAC5-30-70.
"Interconnection point" means the point or points where the combustion energy project connects to a project substation for transmission to the electrical grid.
"Natural heritage resource" means the habitat of rare, threatened, or endangered plant and animal species, rare or state significant natural communities or geologic sites, and similar features of scientific interest benefiting the welfare of the citizens of the Commonwealth.
"Operator" means the person responsible for the overall operation and management of a combustion energy project.
"Owner" means the person who owns all or a portion of a combustion energy project.
"Parasitic load" means the maximum amount of electricity (in megawatts or kilowatts) a combustion energy project uses to run its electricity-producing processes while operating at the rated capacity.
"Parking lot" means an improved area, usually divided into individual spaces and covered with pavement or gravel, intended for the parking of motor vehicles.
"Permit by rule" means provisions of this chapter stating that a project or activity is deemed to have a permit if it meets the requirements of the provision.
"Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, any interstate body, or any other legal entity.
"Preconstruction" means any time prior to commencing land-clearing operations necessary for the installation of energy-generating structures at the combustion energy project.
"Rated capacity" means the maximum designed electrical generation capacity (in megawatts or kilowatts) of a combustion energy project, minus the parasitic load; sometimes known as "net capacity."
"Site" means the area encompassed by the combustion energy project, plus appurtenant structures and facilities such as fuel processing, delivery, storage, and associated conveyance equipment areas if they (i) are contiguous and (ii) primarily exist to supply fuel for the generation of electricity at that project, to the extent that these areas are under common ownership or operating control by the owner or operator of the combustion energy project.
"Small renewable energy project" means (i) an electrical generation facility with a rated capacity not exceeding 100 megawatts that generates electricity only from sunlight, wind, falling water, wave motion, tides, or geothermal power, or (ii) an electrical generation facility with a rated capacity not exceeding 20 megawatts that generates electricity only from biomass, energy from waste, or municipal solid waste.
"T&E," "state threatened or endangered species," or "state-listed species" means any wildlife species designated as a Virginia endangered or threatened species by DGIF pursuant to § 29.1-563-570 of the Code of Virginia and 4VAC15-20-130.
"VLR" means the Virginia Landmarks Register (9VAC15-70-120 B 1).
"VLR-eligible" means those historic resources that meet the criteria necessary for inclusion on the VLR pursuant to 17VAC5-30-40 through 17VAC5-30-70 but are not listed in the VLR.
"VLR-listed" means those historic resources that have been listed in the VLR in accordance with the criteria of 17VAC5-30-40 through 17VAC5-30-70.
"Wildlife" means wild animals; except, however, that T&E insect species shall only be addressed as part of natural heritage resources and shall not be considered T&E wildlife.
9VAC15-70-20. Authority and applicability.
A. This chapter is issued under authority of Article 5 (§ 10.1-1197.5 et seq.) of Chapter 11.1 of Title 10.1 of the Code of Virginia. The chapter contains requirements for combustion energy projects that are designed for, or capable of, operation at a rated capacity equal to or less than 20 megawatts.
B. The department has determined that a permit by rule is required for combustion energy projects with a rated capacity greater than five megawatts, provided that the projects do not otherwise meet the criteria for Part III (9VAC15-70-130 et seq.) of this chapter; and this regulation contains the permit by rule provisions for these projects in Part II (9VAC15-70-30 et seq.) of this chapter.
C. The department has determined that different provisions should apply to projects that meet the criteria as set forth in Part III (9VAC15-70-130) of this chapter, and this regulation contains the requirements, if any, for these projects in Part III (9VAC15-70-130) of this chapter. Projects that meet the criteria for Part III of this chapter are deemed to be covered by the permit by rule.
Part II
Permit by Rule Provisions for Combustion Energy Projects with Rated Capacity
Greater Than Five Megawatts and Not Otherwise Meeting Criteria for Part III
9VAC15-70-30. Application.
A. The owner or operator of a combustion energy project with a rated capacity greater than five megawatts, provided that the project does not otherwise meet the criteria for Part III (9VAC15-70-130) of this chapter, shall submit to the department a complete application in which he satisfactorily accomplishes all of the following:
1. In accordance with § 10.1-1197.6 B 1 of the Code of Virginia, and as early in the project development process as practicable, furnishes to the department a notice of intent, to be published in the Virginia Register of Regulations, that he intends to submit the necessary documentation for a permit by rule for a small renewable energy project;
2. In accordance with § 10.1-1197.6 B 2 of the Code of Virginia, furnishes to the department a certification by the governing body of the locality or localities wherein the small renewable energy project will be located that the project complies with all applicable land use ordinances;
3. In accordance with § 10.1-1197.6 B 3 of the Code of Virginia, furnishes to the department copies of all interconnection studies undertaken by the regional transmission organization or transmission owner, or both, on behalf of the small renewable energy project;
4. In accordance with § 10.1-1197.6 B 4 of the Code of Virginia, furnishes to the department a copy of the final interconnection agreement between the small renewable energy project and the regional transmission organization or transmission owner indicating that the connection of the small renewable energy project will not cause a reliability problem for the system. If the final agreement is not available, the most recent interconnection study shall be sufficient for the purposes of this section. When a final interconnection agreement is complete, it shall be provided to the department. The department shall forward a copy of the agreement or study to the State Corporation Commission;
5. In accordance with § 10.1-1197.6 B 5 of the Code of Virginia, furnishes to the department a certification signed by a professional engineer licensed in Virginia that the maximum generation capacity of the combustion energy project, as designed, does not exceed 20 megawatts;
6. In accordance with § 10.1-1197.6 B 6 of the Code of Virginia, furnishes to the department an analysis of potential environmental impacts of the small renewable energy project's operations on attainment of national ambient air quality standards;
7. In accordance with § 10.1-1197.6 B 7 of the Code of Virginia, furnishes to the department, where relevant, an analysis of the beneficial and adverse impacts of the proposed project on natural resources. The owner or operator shall perform the analyses prescribed in 9VAC15-70-40. For wildlife, that analysis shall be based on information on the presence, activity, and migratory behavior of wildlife to be collected at the site for a period of time dictated by the site conditions and biology of the wildlife being studied, not exceeding 12 months;
8. In accordance with § 10.1-1197.6 B 8 of the Code of Virginia, furnishes to the department a mitigation plan pursuant to 9VAC15-70-70 that details reasonable actions to be taken by the owner or operator to avoid, minimize, or otherwise mitigate such impacts, and to measure the efficacy of those actions; provided, however, that the provisions of subdivision A 8 of this section shall only be required if the department determines pursuant to 9VAC15-70-50 that the information collected pursuant to § 10.1-1197.6 B 7 of the Code of Virginia and 9VAC15-70-40 indicates that significant adverse impacts to wildlife or historic resources are likely;
9. In accordance with § 10.1-1197.6 B 9 of the Code of Virginia, furnishes to the department a certification signed by a professional engineer licensed in Virginia that the project is designed in accordance with 9VAC15-70-80;
10. In accordance with § 10.1-1197.6 B 10 of the Code of Virginia, furnishes to the department an operating plan describing how any standards established in this chapter applicable to the permit by rule will be achieved;
11. In accordance with § 10.1-1197.6 B 11 of the Code of Virginia, furnishes to the department a detailed site plan meeting the requirements of 9VAC15-70-70;
12. In accordance with § 10.1-1197.6 B 12 of the Code of Virginia, furnishes to the department a certification signed by the applicant that the combustion energy project has applied for or obtained all necessary environmental permits;
13. Prior to authorization of the project and in accordance with §§ 10.1-1197.6 B 13 and 10.1-1197.6 B 14 of the Code of Virginia, conducts a 30-day public review and comment period and holds a public meeting pursuant to 9VAC15-70-90. The public meeting shall be held in the locality or, if the project is located in more than one locality, in a place proximate to the location of the proposed project. Following the public meeting and public comment period, the applicant shall prepare a report summarizing the issues raised by the public and include any written comments received and the applicant's response to those comments. The report shall be provided to the department as part of this application; and
14. In accordance with 9VAC15-70-110, furnishes to the department the appropriate fee.
B. Within 90 days of receiving all of the required documents and fees listed in subsection A of this section, the department shall determine, after consultation with other agencies in the Secretariat of Natural Resources, whether the application is complete and whether it adequately meets the requirements of this chapter, pursuant to § 10.1-1197.7 A of the Code of Virginia.
1. If the department determines that the application meets the requirements of this chapter, then the department shall notify the applicant in writing that he is authorized to construct and operate a combustion energy project pursuant to this chapter.
2. If the department determines that the application does not meet the requirements of this chapter, then the department shall notify the applicant in writing and specify the deficiencies.
3. If the applicant chooses to correct deficiencies in a previously submitted application, the department shall follow the procedures of this subsection and notify the applicant whether the revised application meets the requirements of this chapter within 60 days of receiving the revised application.
4. Any case decision by the department pursuant to this subsection shall be subject to the process and appeal provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).
9VAC15-70-40. Analysis of the beneficial and adverse impacts on natural resources.
A. Analyses of wildlife. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the applicant shall conduct preconstruction wildlife analyses. The analyses of wildlife shall include the following if the disturbance zone exceeds 10 acres and the project does not meet the criteria of 9VAC15-70-130 B 2 a (2):
1. The applicant shall obtain a wildlife report and map generated from DGIF's Virginia Fish and Wildlife Information Service web-based application (9VAC15-70-120 C 3) or from a data and mapping system including the most recent data available from DGIF's subscriber-based Wildlife Environmental Review Map Service of the following: (i) T&E species within the project's disturbance zone; (ii) known wildlife species and habitat features within the project's disturbance zone and within two miles of the boundary of the project's disturbance zone; and (iii) known or potential sea turtle nesting beaches located within one-half mile of the disturbance zone.
2. If the height of the tallest point of the built structures exceeds 200 feet, the applicant shall consult the "Coastal Avian Protection Zones (CAPZ)" map generated on the department's Coastal GEMS geospatial data system (9VAC15-70-120 C 1) and determine whether the proposed combustion energy project disturbance zone will be located in part or in whole within one or more CAPZ.
B. Analyses of historic resources. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, the applicant shall also conduct a preconstruction historic resources analysis.
1. Desktop survey for projects with rated capacity exceeding five megawatts. The applicant shall perform a desktop survey of known VLR-listed and VLR-eligible historic resources within the project's disturbance zone and within one-half mile of the disturbance zone boundary by means of an archives search of DHR's cultural resource inventory and report in writing the results of the archives search to the department.
2. Architectural (direct impacts) and archaeological surveys if disturbance zone exceeds 10 acres. If the project's disturbance zone exceeds 10 acres and the project does not meet the criteria for 9VAC15-70-130 B 2 a (2), the applicant shall also meet the requirements of this subsection and the prescribed analysis shall be conducted by a qualified professional meeting the professional qualification standards of the Secretary of the Interior's Standards for Archaeology and Historic Preservation (9VAC15-70-120 B 2) in the appropriate discipline. The analysis for this subsection shall include each of the following:
a. Architectural survey (direct impacts). The applicant shall conduct a field survey of all architectural resources, including cultural landscapes, 50 years of age or older, within the disturbance zone and evaluate the eligibility of any identified resource for listing in the VLR.
b. Archaeological survey. The applicant shall conduct an archaeological field survey of the disturbance zone and evaluate the eligibility of any identified archaeological site for listing in the VLR. As an alternative to performing this archaeological survey, the applicant may make a demonstration to the department that the project will not penetrate the subsurface in a manner that would threaten archaeological resources and that any necessary grading of the site prior to construction does not have the potential to adversely impact any archaeological resource.
3. Architectural survey (indirect impacts) if the tallest point of the built structures exceeds 200 feet. If the tallest point of the built structures exceeds 200 feet, the applicant shall also conduct a field survey of all architectural resources, including cultural landscapes, 50 years of age or older, within the one-half mile of the disturbance zone boundary and evaluate the eligibility of any identified resource for listing in the VLR. The prescribed analysis shall be conducted by a qualified professional meeting the professional qualification standards of the Secretary of the Interior's Standards for Archeology and Historic Preservation (9VAC15-70-120 B 2) in the appropriate discipline.
4. Architectural survey (direct impacts) of structures 50 years of age or older. If the project will utilize or demolish existing buildings 50 years of age or older and the project does not meet the criteria for 9VAC15-70-130 B 2 c (2), the applicant shall evaluate the eligibility of any such buildings for listing in the VLR. The prescribed analysis shall be conducted by a qualified professional meeting the professional qualification standards of the Secretary of the Interior's Standards for Archaeology and Historic Preservation (9VAC15-70-120 B 2) in the appropriate discipline.
C. Analyses of other natural resources. To fulfill the requirements of § 10.1-1197.6 B 7 of the Code of Virginia, and if the project's disturbance zone exceeds 10 acres, the applicant shall also conduct a pre-construction desktop survey of natural heritage resources within the disturbance zone.
D. Summary report. The applicant shall provide to the department a report presenting the findings of the applicable studies and analyses conducted pursuant to subsections A, B, and C of this section, along with all data and supporting documents. The applicant shall assess and describe the expected beneficial and adverse impacts, if any, of the proposed project on wildlife and historic resources identified by these studies and analyses.
9VAC15-70-50. Determination of likely significant adverse impacts for combustion energy projects with rated capacity greater than five megawatts.
A. The department shall find that significant adverse impacts to wildlife are likely whenever the wildlife analyses prescribed in 9VAC15-70-40 A document that any of the following conditions exists:
1. State-listed T&E wildlife are found to occur within the disturbance zone;
2. The disturbance zone is located on or within one-half mile of a known or potential sea turtle nesting beach; or
3. The disturbance zone is located in part or in whole within zones 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the Coastal Avian Protection Zones (CAPZ) map and the height of the tallest point of the built structures exceeds 200 feet.
B. The department shall find that significant adverse impacts to historic resources are likely whenever the historic resources analyses prescribed by 9VAC15-70-40 B indicate that the proposed project is likely to diminish significantly any aspect of a historic resource's integrity.
9VAC15-70-60. Mitigation plan.
A. If the department determines that significant adverse impacts to wildlife or historic resources or both are likely, then the applicant shall prepare a mitigation plan. The mitigation plan shall include a description of the affected wildlife or historic resources, or both, and the impact to be mitigated; a description of actions that will be taken to avoid the stated impact; and a plan for implementation. If the impact cannot reasonably be avoided, the plan shall include a description of actions that will be taken to minimize the stated impact and a plan for implementation. If neither avoidance nor minimization is reasonably practicable, the plan shall include a description of other measures that may be taken to offset the stated impact and a plan for implementation.
B. Mitigation measures for significant adverse impacts to wildlife shall include:
1. For state-listed T&E wildlife, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed actions are reasonable. These additional proposed actions may include best practices to avoid, minimize, or offset adverse impacts to resources analyzed pursuant to 9VAC15-70-40 A or C.
2. For proposed projects where the disturbance zone is located on or within one-half mile of a known or potential sea turtle nesting beach, the applicant shall take all reasonable measures to avoid significant adverse impacts or shall demonstrate in the mitigation plan what significant adverse impacts cannot practicably be avoided and why additional proposed mitigation actions are reasonable. Mitigation measures shall include the following:
a. Avoiding construction within likely sea turtle crawl or nesting habitats during the turtle nesting and hatching season (May 20 - October 31). If avoiding construction during this period is not possible, then conducting daily crawl surveys of the disturbance zone (May 20 - August 31) and one mile beyond the northern and southern reaches of the disturbance zone (hereinafter "sea turtle nest survey zone") between sunrise and 9 a.m. by qualified individuals who have the ability to distinguish accurately between nesting and non-nesting emergences.
b. If construction is scheduled during the nesting season, then including measures to protect nests and hatchlings found within the sea turtle nest survey zone.
c. Minimizing nighttime construction during the nesting season and designing project lighting during the construction and operational phases to minimize impacts on nesting sea turtles and hatchlings.
3. For projects located in part or in whole within zones 1, 2, 3, 4, 5, 10, 11, 12, or 14 on the Coastal Avian Protection Zones (CAPZ) map for which the tallest point of the built structures exceeds 200 feet, contribute $1,000.00 per megawatt of rated capacity, or partial megawatt thereof, to a fund designated by the department in support of scientific research investigating the impacts of projects in CAPZ on avian resources.
C. Mitigation measures for significant adverse impacts to historic resources shall include:
1. Significant adverse impacts to VLR-eligible or VLR-listed architectural resources shall be minimized, to the extent practicable, through design of the combustion energy project or the installation of vegetative or other screening.
2. If significant adverse impacts to VLR-eligible or VLR-listed architectural resources cannot be avoided or minimized such that impacts are no longer significantly adverse, then the applicant shall develop a reasonable and proportionate mitigation plan that offsets the significantly adverse impacts and has a demonstrable public benefit and benefit for the affected or similar resource.
3. If any identified VLR-eligible or VLR-listed archaeological site cannot be avoided or minimized to such a degree as to avoid a significant adverse impact, significant adverse impacts of the project will be mitigated through archaeological data recovery.
9VAC15-70-70. Site plan and context map requirements.
A. The applicant shall submit a site plan that includes maps showing the physical features, topography, and land cover of the area within the site, both before and after construction of the proposed project. The site plan shall be submitted at a scale sufficient to show and shall include the following: (i) the boundaries of the site; (ii) the location, height, and approximate dimensions of all existing and proposed infrastructure; (iii) the location, grades, and dimensions of all temporary and permanent on-site and access roads from the nearest county or state maintained road; and (iv) water bodies, waterways, wetlands, and drainage channels.
B. If the project's disturbance zone exceeds 10 acres, the applicant shall submit a context map including the area encompassed by the site and within two miles of the site boundary. The context map shall show known state and federal resource lands and other protected areas, Coastal Avian Protection Zones, state roads, waterways, locality boundaries, forests, and open spaces.
9VAC15-70-80. Combustion energy project design standards.
The design and installation of the combustion energy project shall incorporate any requirements of the mitigation plan that pertain to design and installation, if a mitigation plan is required pursuant to 9VAC15-70-50.
9VAC15-70-90. Public participation.
A. Before the initiation of any construction at the combustion energy project, the applicant shall comply with this section. The owner or operator shall first publish a notice once a week for two consecutive weeks in a major local newspaper of general circulation informing the public that he intends to construct and operate a project eligible for a permit by rule. No later than the date of newspaper publication of the initial notice, the owner or operator shall submit to the department a copy of the notice along with electronic copies of all documents that the applicant plans to submit in support of the application. The notice shall include:
1. A brief description of the proposed project and its location, including the approximate dimensions of the site, approximate number and configuration of systems, and approximate maximum height of systems;
2. A statement that the purpose of the public participation is to acquaint the public with the technical aspects of the proposed project and how the standards and the requirements of this chapter will be met, to identify issues of concern, to facilitate communication, and to establish a dialogue between the owner or operator and persons who may be affected by the project;
3. Announcement of a 30-day comment period in accordance with subsection C of this section and the name, telephone number, address, and email address of the applicant who can be contacted by the interested persons to answer questions or to whom comments shall be sent;
4. Announcement of the date, time, and place for a public meeting held in accordance with subsection D of this section; and
5. Location where copies of the documentation to be submitted to the department in support of the permit by rule application will be available for inspection.
B. The owner or operator shall place a copy of the documentation in a location accessible to the public during business hours for the duration of the 30-day comment period in the vicinity of the proposed project.
C. The public shall be provided at least 30 days to comment on the technical and the regulatory aspects of the proposal. The comment period shall begin no sooner than 15 days after the applicant initially publishes the notice in the local newspaper.
D. The applicant shall hold a public meeting not earlier than 15 days after the beginning of the 30-day public comment period and no later than seven days before the close of the 30-day comment period. The meeting shall be held in the locality or, if the project is located in more than one locality, in a place proximate to the location of the proposed project.
E. For purposes of this chapter, the applicant and any interested party who submits written comments on the proposal to the applicant during the public comment period or who signs in and provides oral comments at the public meeting shall be deemed to have participated in the proceeding for a permit by rule under this chapter and pursuant to § 10.1-1197.7 B of the Code of Virginia.
9VAC15-70-100. Change of ownership, project modifications, termination.
A. Change of ownership. A permit by rule may be transferred to a new owner or operator if:
1. The department receives notification of the change of ownership within 30 days of the transfer; and
2. The notice includes written agreement by the new owner or operator to comply with all requirements of the existing permit by rule and the date on which permit responsibility is transferred to the new owner or operator.
B. Project modifications. Projects subject to Part II of this chapter may be modified as follows:
1. Project modifications that do not increase the project's disturbance zone by more than an additional 10 acres, cause the tallest point of the built structures to exceed 200 feet, or newly involve utilizing or demolishing a building over 50 years of age may occur without notice to the department. No fee will be levied for these modifications.
2. If, however, the project modification involves increasing the disturbance zone by more than 10 additional acres, increasing the height of the tallest point of the built structures so that it now exceeds 200 feet, or newly utilizing or demolishing a building over 50 years of age, the owner or operator shall furnish to the department new certificates prepared by a professional engineer, new documentation required under 9VAC15-70-30, and the appropriate fee in accordance with 9VAC15-70-110. The department shall review the received modification submittal pursuant to this subsection in accordance with the provisions of subsection B of 9VAC15-70-30.
C. Permit by rule termination. The department may terminate the permit by rule whenever the department finds that:
1. The applicant has knowingly or willfully misrepresented or failed to disclose a material fact in any report or certification required under this chapter; or
2. After the department has taken enforcement actions pursuant to 9VAC15-70-140, the owner or operator persistently operates the project in significant violation of the project's mitigation plan.
Prior to terminating a permit by rule pursuant to subdivision 1 or 2 of this subsection, the department shall hold an informal fact-finding proceeding pursuant to § 2.2-4019 of the Virginia Administrative Process Act in order to assess whether to continue with termination of the permit by rule or to issue any other appropriate order. If the department determines that it should continue with the termination of the permit by rule, the department shall hold a formal hearing pursuant to § 2.2-4020 of the Virginia Administrative Process Act. Notice of the formal hearing shall be delivered to the owner or operator. Any owner or operator whose permit by rule is terminated by the department shall cease operating his combustion energy project.
9VAC15-70-110. Fees for projects subject to Part II of this chapter.
A. Purpose. The purpose of this section is to establish schedules and procedures pertaining to the payment and collection of fees from any applicant seeking a new permit by rule or a modification to an existing permit by rule for a combustion energy project subject to Part II (9VAC15-70-30 et seq.) of this chapter.
B. Permit fee payment and deposit. Fees for permit by rule applications or modifications shall be paid by the applicant as follows:
1. Due date. All permit application fees or modification fees are due on submittal day of the application or modification package.
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 1104, Richmond, VA 23218.
3. Incomplete payments. All incomplete payments shall be deemed nonpayments.
4. Late payment. No application or modification submittal will be deemed complete until the department receives proper payment.
C. Fee schedules. Each application for a permit by rule and each application for a modification of a permit by rule is a separate action and shall be assessed a separate fee, except as noted in 9VAC15-70-100 B 1. The amount of the permit application fee is based on the costs associated with the permitting program required by this chapter. The fee schedules are shown in the following table:
|
Type of Action |
Fee |
|
Permit by rule application |
$8,000 |
|
Permit by rule modification |
$4,000 |
D. Use of fees. Fees are assessed for the purpose of defraying the department's costs of administering and enforcing the provisions of this chapter including, but not limited to, permit by rule processing, permit by rule modification processing, and inspection and monitoring of combustion energy projects to ensure compliance with this chapter. Fees collected pursuant to this section shall be used for the administrative and enforcement purposes specified in this section and in § 10.1-1197.6 E of the Code of Virginia.
E. Fund. The fees received by the department in accordance with this chapter shall be deposited in the Small Renewable Energy Project Fee Fund.
F. Periodic review of fees. Beginning July 1, 2014, and periodically thereafter, the department shall review the schedule of fees established pursuant to this section to ensure that the total fees collected are sufficient to cover 100% of the department's direct costs associated with use of the fees.
9VAC15-70-120. Internet accessible resources.
A. This chapter refers to resources to be used by applicants in gathering information to be submitted to the department. These resources are available through the Internet; therefore, in order to assist applicants, the uniform resource locator or Internet address is provided for each of the references listed in this section.
B. Internet available resources.
1. The Virginia Landmarks Register, Virginia Department of Historic Resources, 2801 Kensington Avenue, Richmond, Virginia. Available at the following Internet address: http://www.dhr.virginia.gov/registers/register.htm.
2. Professional Qualifications Standards, the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, as amended and annotated (48 FR 44716-740, September 29, 1983), National Parks Service, Washington, DC. Available at the following Internet address: http://www.nps.gov/history/local-law/arch_stnds_9.htm.
3. The Natural Communities of Virginia, Classification of Ecological Community Groups, Second Approximation, Version 2.3, Virginia Department of Conservation and Recreation, Division of Natural Heritage, Richmond, VA. Available at the following Internet address: http://www.dcr.virginia.gov/natural_heritage/ncintro.shtml.
4. Virginia's Comprehensive Wildlife Conservation Strategy, 2005 (referred to as the Virginia Wildlife Action Plan) , Virginia Department of Game and Inland Fisheries, 4010 West Broad Street, Richmond, Virginia. Available at the following Internet address: http://www.bewildvirginia.org/wildlifeplan/.
C. Internet applications.
1. Coastal GEMS application, 2010, Virginia Department of Environmental Quality. Available at the following Internet address: http://www.deq.virginia.gov/coastal/coastalgems.html.
NOTE: This website is maintained by the department. Assistance and information may be obtained by contacting Virginia Coastal Zone Management Program, Virginia Department of Environmental Quality, 629 E. Main Street, Richmond, Virginia 23219, (804) 698-4000.
2. Natural Landscape Assessment, 2010, Virginia Department of Conservation and Recreation. Available at the following Internet address: for detailed information on ecological cores go to http://www.dcr.virginia.gov/natural_heritage/vclnavnla.shtm. Land maps may be viewed at DCR's Land Conservation Data Explorer Geographic Information System website at http://www.vaconservedlands.org/gis.aspx.
NOTE: The website is maintained by DCR. Actual shapefiles and metadata are available for free by contacting a DCR staff person at vaconslands@dcr.virginia.gov or DCR, Division of Natural Heritage, 217 Governor Street, Richmond, Virginia 23219, (804) 786-7951.
3. Virginia Fish and Wildlife Information Service 2010, Virginia Department of Game and Inland Fisheries. Available at the following Internet address: http://www.vafwis.org/fwis/.
NOTE: This website is maintained by DGIF and is accessible to the public as "visitors", or to registered subscribers. Registration, however, is required for access to resource- or species-specific locational data and records. Assistance and information may be obtained by contacting DGIF, Fish and Wildlife Information Service, 4010 West Broad Street, Richmond, Virginia 23230, (804) 367-6913.
Part III
Provisions for Projects with Rated Capacity Less Than or Equal to Five
Megawatts or Meeting Other Specified Criteria
9VAC15-70-130. Combustion energy projects with rated capacity less than or equal to five megawatts or meeting other specified criteria.
A. The owner or operator of a combustion energy project is not required to submit any notification or certification to the department if the combustion energy project has a rated capacity equal to or less than 500 kilowatts.
B. The owner or operator of a combustion energy project shall notify the department by submitting a certification by the governing body of the locality or localities wherein the project will be located that the project complies with all applicable land use ordinances, if the project meets either of the following criteria:
1. The combustion energy project has a rated capacity greater than 500 kilowatts and less than or equal to five megawatts; or
2. The combustion energy project has a rated capacity greater than five megawatts and meets all of the criteria specified in this subdivision.
a. The combustion energy project has a disturbance zone:
(1) Less than or equal to 10 acres; or
(2) Greater than 10 acres but utilizes existing parking lots, existing roads, or other previously disturbed areas and any impacts to undisturbed areas do not exceed an additional 10 acres;
b. The tallest point of the built structures does not exceed 200 feet; and
c. If utilizing or demolishing existing buildings, utilizes or demolishes existing buildings:
(1) Less than 50 years of age; or
(2) 50 years of age or older that have been evaluated and determined by DHR within the preceding seven years to be not VLR-eligible.
Part IV
Enforcement
9VAC15-70-140. Enforcement.
The department may enforce the provisions of this chapter and any permits by rule authorized under this chapter in accordance with §§ 10.1-1197.9, 10.1-1197.10, and 10.1-1197.11 of the Code of Virginia. In so doing, the department may:
1. Issue directives in accordance with the law;
2. Issue special orders in accordance with the law;
3. Issue emergency special orders in accordance with the law;
4. Seek injunction, mandamus or other appropriate remedy as authorized by the law;
5. Seek civil penalties under the law; or
6. Seek remedies under the law, or under other laws including the common law.
DOCUMENTS INCORPORATED BY REFERENCE (9VAC15-70)
The Natural Communities of Virginia, Classification of Ecological Community Groups, Second Approximation (Version 2.3), 2010, Virginia Department of Conservation and Recreation, Division of Natural Heritage, Richmond, VA.
VA.R. Doc. No. R11-2707; Filed September 10, 2012, 2:25 p.m.
w –––––––––––––––––– w
CHARITABLE GAMING BOARD
Final Regulation
Titles of Regulations: 11VAC15-22. Charitable Gaming
Rules and Regulations (repealing 11VAC15-22-10 through
11VAC15-22-120).
11VAC15-31. Supplier Regulations (repealing 11VAC15-31-10 through
11VAC15-31-60).
11VAC15-40. Charitable Gaming Regulations (adding 11VAC15-40-10 through 11VAC15-40-430).
Statutory Authority: § 18.2-340.15 of the Code of Virginia.
Effective Date: November 7, 2012.
Agency Contact: Erin Williams, Policy and Planning Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-1308, FAX (804) 371-7479, TTY (800) 828-1120, or email erin.williams@vdacs.virginia.gov.
Summary:
The amendments to this regulation (i) replace specific dollar amounts prescribed by the Code of Virginia (Code) or the Internal Revenue Service (IRS) by references to the sections of the Code or the IRS publication that establishes these amounts; (ii) revise the use of remedial business plans to assist organizations in achieving compliance to reflect the department's implementation (iii) eliminate the fee for a permit amendment; (iv) permit nonmembers to participate in the conduct of bingo; (v) permit the full automatic daubing of bingo numbers; (vi) authorize the conduct of progressive bingo games; (vii) allow bingo event games; (viii) reduce the required break between gaming sessions from one hour to 30 minutes; and (ix) modify the reporting requirements for electronic bingo devices to permit electronic bingo device systems that do not identify at the point of sale the number of the electronic bingo device issued to a player.
Changes made since publication of the proposed regulation include (i) amending certain definitions, including replacing "electronic game" with "electronic pull-tab" and replacing "player device" with "electronic pull-tab device"; (ii) eliminating the requirement that paper pull-tab dispensers be certified by a testing facility; (iii) adding technical requirements for electronic random number generators used in bingo; (iv) including a grandfather clause for electronic random number generators that are currently being used in bingo; (v) adding a requirement for a firewall to both the requirements for electronic bingo systems for distributed pull-tab systems; (vi) establishing permitting requirements for manufacturers of electronic games of chance systems; (vii) mirroring the charitable gaming statute by prohibiting sounds or music solely intended to entice a player to play; and (viii) establishing limits on the number of devices a premises may have depending upon whether the premises is open to the public for charitable gaming or is only open to members of an organization and their guests.
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.
CHAPTER 40
CHARITABLE GAMING REGULATIONS
Part [ 1 I ]
Definitions
11VAC15-40-10. Definitions.
In addition to the definitions contained in § 18.2-340.16 of the Code of Virginia, the words and terms below when used in this regulation shall have the following meanings unless the context clearly indicates otherwise:
"Agent" means any person authorized by a supplier to act for or in place of such supplier.
"Board" means the Virginia Charitable Gaming Board.
"Board of directors" means the board of directors, managing committee, or other supervisory body of a qualified organization.
"Calendar day" means the period of 24
consecutive hours commencing at [ 12:01 a.m. 12:00:01
a.m. ] and concluding at midnight.
"Calendar week" means the period of seven
consecutive calendar days commencing at [ 12:01 a.m.
12:00:01 a.m. ] on Sunday and ending at midnight the following
Saturday.
"Cash" means United States currency or coinage.
"Commissioner" means the Commissioner of the Virginia Department of Agriculture and Consumer Services.
"Concealed face bingo card" means a nonreusable bingo card constructed to conceal the card face.
"Conduct" means the actions associated with the
provision of a gaming operation during and immediately before or after the
permitted activity, which may include, but not be limited to (i) selling bingo
cards or packs, electronic [ bingo ] devices, instant
bingo or pull-tab cards, [ electronic pull-tab devices, electronic
pull-tabs, ] or raffle tickets; (ii) calling bingo games; (iii)
distributing prizes; and (iv) any other services provided by [ volunteer
game ] workers.
"Control program" means software involved in any critical game function.
"Daubing" means covering a square containing a number called with indelible ink or otherwise marking a number called on a card or an electronic facsimile of a card.
"Deal" means each separate package or series of packages consisting of one game of instant bingo, pull-tabs, or seal cards with the same serial number.
"Decision bingo" means a bingo game where the cost to a player to play is dependent on the number of bingo numbers called and the prize payout is in direct relationship to the number of participants and the number of bingo numbers called, but shall not exceed statutory prize limits for a regular bingo game.
"Department" means the Virginia Department of Agriculture and Consumer Services, Division of Consumer Protection, Office of Charitable Gaming.
"Designator" means an object used in the [ bingo ] number selection process, such as a ping-pong ball, upon which bingo letters and numbers are imprinted.
"Discount" means any reduction in cost of admission or game packs or any other purchases through use of coupons, free packs, or other similar methods.
"Disinterested player" means a player who is unbiased.
"Disposable paper card" means a nonreusable, paper bingo card manufactured with preprinted numbers.
"Distributed pull-tab system" means a computer
system consisting of a computer or computers and associated equipment for the
use of distributing a finite number of [ electronic instant
bingo and/or pull-tab outcomes (i.e., electronic game cards)
electronic pull-tabs ], a certain number of which entitle a player
to prize awards at various levels.
"Door prize" means any prize awarded by the
random drawing or random selection of a name or number based solely on
attendance at a [ charitable ] gaming [ session
activity ].
"Electronic bingo device" means an electronic
[ device unit ] that uses proprietary
software or hardware or, in conjunction with commonly available software and
computers, displays facsimiles of bingo cards and allows a player to daub such
cards or allows for the automatic daubing of such cards.
[ "Electronic games of chance system" means a distributed pull-tab system. ]
"Electronic [ game card
pull-tabs ]" means an electronic version of a single instant
bingo card or pull-tab. An electronic [ game card
pull-tab ] is a predetermined game outcome in electronic form,
distributed on-demand from a finite number of game outcomes by a distributed
pull-tab system.
[ "Electronic pull-tab device" means an electronic unit used to facilitate the play of an electronic pull-tab. An electronic pull-tab device may take the form of an upright cabinet or a handheld device or may be of any other composition as approved by the department. ]
"Equipment and video systems" means equipment that facilitates the conduct of charitable gaming such as ball blowers, flashboards, electronic verifiers, and replacement parts for such equipment. [ Equipment and video systems shall not include dispensing devices, electronic bingo devices, and electronic pull-tab devices. ]
"Event game" means a bingo game that is played using instant bingo cards or pull-tabs in which the winners include both instant winners and winners who are determined by the random draw of a bingo ball, the random call of a bingo number, or the use of a seal card, and that is sold [ in its entirety ] and played to completion during a single bingo session.
"Fiscal year" or "annual reporting period" means the 12-month period beginning January 1 and ending December 31 of any given year.
"Flare" means [ a piece of paper,
cardboard, or similar material a printed or electronic display ]
that bears [ printed ] information relating
to the name of the manufacturer or logo, name of the game, card count, cost per
play, serial number, [ the ] number of prizes to
be awarded, and [ the ] specific prize amounts
in a deal of instant bingo, pull-tab, [ or ] seal
cards [ , or electronic pull-tabs ].
"Free space number," "perm number," "center number," "card number," or "face number" means the number generally printed in the center space of a bingo card that identifies the unique pattern of numbers printed on that card.
"Game program" means a written list of all games to be played including, but not limited to, the sales price of all bingo paper and electronic bingo devices, pack configuration, prize amounts to be paid during a session for each game, and an indication whether prize amounts are fixed or are based on attendance.
"Game set" means the entire pool of electronic
[ game cards pull-tabs ] that contains
predefined and randomized game results assigned under a unique serial number.
This term is equivalent to "deal" or "deck."
"Game subset" means a division of a game set into equal sizes.
[ "Gaming activity" means one bingo
session and the sale and redemption of instant bingo, pull-tabs, seal cards, or
electronic game cards done in conjunction with that bingo session and in
accordance with the provisions of this chapter. ]
"Immediate family" means one's spouse, parent, child, sibling, grandchild, grandparent, mother or father-in-law, or stepchild.
"Interested persons" means the president, an officer, or a bingo manager of any qualified organization that is exempt or is a permit applicant or holds a permit to conduct charitable gaming; or the owner, director, officer [ , ] or partner of an entity engaged in supplying charitable gaming supplies to organizations [ , or engaged in manufacturing any component of a distributed pull-tab system that is distributed in the Commonwealth ].
"IRS" means the United States Internal Revenue Service.
"Management" means the provision of oversight of a gaming operation, which may include, but is not limited to, the responsibilities of applying for and maintaining a permit or authorization; compiling, submitting, and maintaining required records and financial reports; and ensuring that all aspects of the operation are in compliance with all applicable statutes and regulations.
"Manufacturer" means a person who or entity that assembles from raw materials or subparts a completed piece of bingo [ equipment or supplies, a distributed pull-tab system, ] or other charitable gaming equipment or supplies. "Manufacturer" also means a person who or entity that modifies, converts, adds, or removes parts to or from bingo [ equipment or supplies, a distributed pull-tab system, ] or other charitable gaming equipment or supplies to further their promotion or sale for the conduct of charitable gaming.
"OCG number" means a unique identification number issued by the department.
"Operation" means the activities associated with
production of a charitable gaming activity, which may include, but is not
limited to, (i) the direct on-site supervision of the conduct of charitable
gaming; (ii) coordination of [ volunteers game
workers ]; and (iii) all responsibilities of charitable gaming
designated by the organization's management.
"Owner" means any individual with financial interest of 10% or more in a supplier [ or a manufacturer of a distributed pull-tab system distributed in the Commonwealth ].
"Pack" means sheets of bingo paper or electronic facsimiles assembled in the order of games to be played. This shall not include any raffle.
[ "Player device" means an electronic
unit that may take the form of an upright cabinet or a handheld device or may
be of any other composition as approved by the department used to facilitate
the play of electronic instant bingo or pull-tab games. ]
"Prize" means cash, merchandise, certificate, or other item of value awarded to a winning player.
"Progressive bingo" means a bingo game in which the prize is carried forward to the next game if a predetermined pattern is not completed within a specified number of bingo numbers called.
"Progressive seal card" means a seal card game in which a prize is carried forward to the next deal if not won when a deal is completed.
"Remuneration" means payment in cash or the provision of anything of value for goods provided or services rendered.
"Seal card" means a board or placard used in conjunction with a deal of the same serial number that contains one or more concealed areas that, when removed or opened, reveal a predesignated winning number, letter, or symbol located on that board or placard.
"Selection device" means a manually or mechanically operated device [ used ] to randomly select bingo numbers.
"Serial number" means a unique number
[ printed assigned ] by the manufacturer
[ on to ] each [ set of ]
bingo [ card in a set cards ]; each instant
bingo, pull-tab, or seal card in a deal; each electronic bingo device;
[ or ] each door prize ticket [ ; each
game set and game subset of electronic pull-tabs; and each electronic pull-tab
device ].
"Series number" means the number of unique card faces contained in a set of disposable bingo paper cards or bingo hard cards. A 9000 series, for example, has 9000 unique faces.
"Session" means a period of time during which
one or more bingo games are conducted [ that begins with the
selection of the first ball for the first game and ends with the selection of
the last ball for the last game., and during which instant bingo,
pull-tabs, seal cards, or electronic pull-tabs may be sold and redeemed. A
session begins with the sale of instant bingo, pull-tabs, seal cards,
electronic pull-tabs, or bingo cards or packs. ]
"Treasure chest" means a raffle including a locked treasure chest containing a prize that a participant, selected through some other authorized charitable game, is afforded the chance to select from a series of keys a predetermined key that will open the locked treasure chest to win a prize.
"Use of proceeds" means the use of funds derived by an organization from its charitable gaming activities, which are disbursed for those lawful religious, charitable, community, or educational purposes. This includes expenses relating to the acquisition, construction, maintenance, or repair of any interest in the real property involved in the operation of the organization and used for lawful religious, charitable, community, or educational purposes.
"Voucher" means a printed ticket tendered to the
player, upon request, for any unused game plays and/or winnings that remain on
the [ player electronic pull-tab ] device.
"WINGO" means a variation of a traditional bingo game that uses visual devices rather than a verbal caller and is intended for play by hearing impaired persons.
Part II
Charitable Gaming Organizations
Article 1
Permits
11VAC15-40-20. Eligibility for permit to conduct charitable gaming; when valid; permit requirements.
A. The conduct of charitable gaming is a privilege that may be granted or denied by the department. Except as provided in § 18.2-340.23 of the Code of Virginia, every eligible organization, volunteer fire department, and rescue squad with anticipated gross gaming receipts that exceed the amount set forth in § 18.2-340.23 of the Code of Virginia in any 12-month period shall obtain a permit from the department prior to the commencement of charitable gaming activities. To be eligible for a permit an organization must meet all of the requirements of § 18.2-340.24 of the Code of Virginia.
B. Pursuant to § 18.2-340.24 B of the Code of Virginia, the department shall review a tax exempt request submitted to the IRS for a tax exempt status determination and may issue an interim certification of tax-exempt status solely for the purpose of charitable gaming, conditioned upon a determination by the IRS. The department shall charge the fee set forth in § 18.2-340.24 B of the Code of Virginia for this review. The fee shall be payable to the Treasurer of Virginia.
C. A permit shall be valid only for activities, locations, days, dates, and times as listed on the permit.
D. In accordance with § 18.2-340.19 A 1 of the Code of Virginia, as a condition of receiving a permit, a minimum of 10% of charitable gaming gross receipts shall be used for (i) those lawful religious, charitable, community, or educational purposes for which the organization is specifically chartered or organized or (ii) those expenses relating to the acquisition, construction, maintenance, or repair of any interest in real property involved in the operation of the organization and used for lawful religious, charitable, community, or educational purposes.
E. If an organization fails to meet the minimum use of
proceeds requirement, its permit may be suspended or revoked. However, the
department shall not suspend or revoke the permit of any organization solely
because of its failure to meet the required percentage without having first
provided the organization with an opportunity to implement a [ corrective
action remedial business ] plan.
F. An organization may request a temporary reduction in
the predetermined percentage specified in subsection D of this section from the
department. In reviewing such a request, the department shall consider such
factors appropriate to and consistent with the purpose of charitable gaming,
which may include, but not be limited to, (i) the organization's overall
financial condition; (ii) the length of time the organization has been involved
in charitable gaming; (iii) the extent of the deficiency; and (iv) the progress
that the organization has made in attaining the minimum percentage in
accordance with a [ corrective action remedial
business ] plan pursuant to subsection E of this section.
G. An organization whose permit is revoked for failure to
comply with provisions set forth in subsection D of this section shall be
eligible to reapply for a permit at the end of one year from the date of
revocation. The department, at its discretion, may issue the permit if it is
satisfied that the organization has made substantial efforts towards meeting
its [ corrective action remedial business ] plan.
11VAC15-40-30. Permit application process.
A. Any organization anticipating gross gaming receipts that exceed the amount set forth in § 18.2-340.23 of the Code of Virginia shall complete a department-prescribed application to request issuance or renewal of an annual permit to conduct charitable gaming. Organizations shall submit a nonrefundable fee payable to the Treasurer of Virginia in the amount of $200 with the application, unless the organization is exempt from such fee pursuant to § 18.2-340.23 of the Code of Virginia.
B. The department may initiate action against any
organization exempt from permit requirements when it reasonably believes the
organization is not in compliance with the provisions of charitable gaming laws
or [ applicable regulations, or both, of the board
this chapter ].
C. Permit holders requiring a special permit pursuant to § 18.2-340.27 E of the Code of Virginia shall convey their request on a form prescribed by the department. Organizations shall submit a fee payable to the Treasurer of Virginia in the amount of $50 with the request for a special permit, unless the organization is exempt from such fee pursuant to § 18.2-340.23 of the Code of Virginia.
D. Permits shall be valid for a period of one year from the date of issuance or for a period specified on the permit. The department may issue permits for periods of less than one year.
E. Permits shall be granted only after a background investigation of an organization or interested persons, or both, to ensure public safety and welfare as required by § 18.2-340.25 of the Code of Virginia. Investigations shall consider the nature, the age and severity, and the potential harm to public safety and welfare of any criminal offenses. The investigation may include, but shall not be limited to, the following:
1. A search of [ Virginia ] criminal
history records for the chief executive officer and chief financial officer of
the organization. Information and authorization to conduct these records checks
shall be provided in the permit application. In addition, the department shall
require that the organization provides assurances that all other members
involved in the management, operation, or conduct of charitable gaming meet the
requirements of subdivision 13 of § 18.2-340.33 of the Code of Virginia.
Applications may be denied if:
a. Any person participating in the management of any charitable gaming has ever been:
(1) Convicted of a felony; or
(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years.
b. Any person participating in the conduct of charitable gaming has been:
(1) Convicted of any felony in the preceding 10 years; or
(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years;
2. An inquiry as to whether the organization has been granted tax-exempt status pursuant to § 501(c) by the Internal Revenue Service and is in compliance with IRS annual filing requirements;
3. An inquiry as to whether the organization has entered into any contract with, or has otherwise employed for compensation, any persons for the purpose of organizing or managing, operating, or conducting any charitable gaming activity;
4. Inquiries into the finances and activities of the organization and the sources and uses of funds; and
5. Inquiries into the level of community or financial support to the organization and the level of community involvement in the membership and management of the organization.
F. The permit application for an organization that has not previously held a permit shall include:
[ 1. A list of members participating in the
management or operation of charitable gaming. For any organization that is not
composed of members, a person who is not a bona fide member may volunteer in
the conduct of a charitable game as long as that person is directly supervised
by a bona fide official member of the organization;
2. 1. ] A copy of the articles of
incorporation, bylaws, charter, constitution, or other appropriate organizing
document;
[ 3. 2. ] A copy of the determination
letter issued by the IRS under § 501(c) of the Internal Revenue Code, if
appropriate, or a letter from the national office of an organization indicating
the applicant organization is in good standing and is currently covered by a
group exemption ruling. A letter of good standing is not required if the
applicable national or state office has furnished the department with a listing
of member organizations in good standing in the Commonwealth as of January 1 of
each year and has agreed to promptly provide the department any changes to the
listing as they occur;
[ 4. A copy of the organization's most recent
annual financial statement and balance sheet or most recent Form 990 that has
been filed with the IRS;
5. 3. ] A copy of the written
lease or proposed written lease agreement and all other agreements if the
organization rents or intends to rent a facility where bingo is or will be
conducted. Information on the lease shall include name, address, and phone
number of the landlord; maximum occupancy of the building; and the rental
amount per session; and
[ 6. 4. ] An authorization
by an officer or other appropriate official of the organization to permit the
department to determine whether the organization has been investigated or
examined by the IRS in connection with charitable gaming activities during the
previous three years.
G. Copies of minutes of meetings of the organization and any contracts with landlords or suppliers to which the organization is or may be a party may be requested by the department prior to rendering a permitting decision.
H. Organizations applying to renew a permit previously issued by the department shall submit articles of incorporation, bylaws, charter, constitution, or other organizing document, and IRS determination letter only if there are any amendments or changes to these documents that are directly related to the management, operation, or conduct of charitable gaming.
I. Organizations may request permits to conduct joint bingo games as provided in § 18.2-340.29 of the Code of Virginia.
1. In the case of a joint game, [ all the
organizations each organization ] shall file a permit
application.
2. The nonrefundable permit fee for joint games shall be a
total of $200. [ Volunteer fire departments or rescue squads or auxiliary
units thereof that have been recognized in accordance with § 15.2-955 of
the Code of Virginia shall be exempt from the payment of applications fees
However, no permit application fee is due if each of the organizations is
exempt from the application fee pursuant to § 18.2-340.23 of the Code of
Virginia ].
3. A single permit shall be issued in the names of all the organizations conducting a joint game. All restrictions and prohibitions applying to single organizations shall apply to qualified organizations jointly conducting bingo games pursuant to § 18.2-340.29 of the Code of Virginia.
4. No charitable gaming shall be conducted prior to the issuance of a joint permit.
5. Applications for joint games shall include an explanation of the division of manpower, costs, and proceeds for the joint game.
J. An organization wishing to change dates, times, or
locations of its charitable gaming shall request [ a change in
the an amendment to its ] permit. [ Change
Amendment ] requests shall be made in writing on a form prescribed
by the department [ at least 30 days ] in
advance of the proposed effective date.
K. [ Changes in dates, times, or locations
An organization may cancel its charitable gaming ] due to inclement
weather, disasters, or other circumstances outside the organization's control
[ may be made ] without [ a change in
the an amendment to its ] permit. [ The
organization shall request such a change on a form prescribed by the department
as soon as the necessity for the change is known. ]
L. An organization may sell raffle tickets for a drawing to be held outside of the Commonwealth of Virginia in the United States provided:
1. The raffle is conducted by the organization in conjunction with a meeting outside the Commonwealth of Virginia or with another organization that is licensed to conduct raffles outside the Commonwealth of Virginia;
2. The raffle is conducted in accordance with these regulations and the laws and regulations of the state where the drawing is to be held; and
3. The portion of the proceeds derived from the sale of raffle tickets in the Commonwealth is reported to the department.
M. Any permitted organization that ceases to conduct charitable gaming shall immediately notify the department in writing and provide the department a report as to the disposition of all unused gaming supplies on a form prescribed by the department.
11VAC15-40-40. Suspension, revocation, or denial of permit.
A. Pursuant to § 18.2-340.20 of the Code of Virginia, the department may suspend, revoke, or deny the permit to conduct charitable gaming of any organization for cause including, but not limited to, any of the following reasons:
1. The organization is found to be in violation of or has failed to meet any of the requirements of the statutes or regulations governing the operation, management, and conduct of charitable gaming in the Commonwealth.
2. The organization is found to be not in good standing with its state or national organization.
3. The IRS revokes or suspends the organization's tax-exempt status.
4. The organization willfully and knowingly provides false information in its application for a permit to conduct charitable gaming.
5. The organization is found to have a member involved in the management, operation, or conduct of its charitable gaming who has been convicted of any felony or any misdemeanor as follows:
a. For any person participating in the management or operation of any charitable gaming:
(1) Convicted of a felony; or
(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years.
b. For any person participating in the conduct of charitable gaming:
(1) Convicted of any felony within the preceding 10 years; or
(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years.
B. The failure to meet any of the requirements of § 18.2-340.24 of the Code of Virginia shall cause the denial of the permit, and no organization shall conduct any charitable gaming until the requirements are met and a permit is obtained.
C. Except when an organization fails to meet any of the requirements of § 18.2-340.24 of the Code of Virginia, in lieu of suspending, revoking, or denying a permit to conduct charitable gaming, the department may afford an organization an opportunity to enter into a compliance agreement specifying additional conditions or requirements as it may deem necessary to ensure an organization's compliance with the statute and regulations governing the conduct of charitable gaming activities and may require that an organization participates in such training as is offered by the department.
D. If a permit is suspended, the department shall set the terms of the suspension, which shall include the length of the suspension and a requirement that, prior to reinstatement of the permit, the organization shall submit a remedial business plan to address the conditions that resulted in the suspension.
Article 2
Conduct of Games, Rules of Play, Electronic Bingo
11VAC15-40-50. Conduct of bingo, instant bingo, pull-tabs, seal cards, event games, and raffles.
A. Organizations subject to this chapter shall post their permit at all times on the premises where charitable gaming is conducted.
B. No individual shall provide any information or engage in any conduct that alters or is intended to alter the outcome of any charitable game.
C. Individuals under 18 years of age may play bingo provided such persons are accompanied by a parent or legal guardian. It shall be the responsibility of the organization to ensure that such individuals are eligible to play. An organization's house rules may further limit the play of bingo or purchase [ of ] raffle tickets by minors.
D. Individuals under the age of 18 may sell raffle tickets for a qualified organization raising funds for activities in which they are active participants.
E. No individual under the age of 18 may participate in
the management or operation of bingo games. Individuals 14 through 17 years of
age may participate in the conduct of a bingo game provided the organization
permitted for charitable gaming obtains and keeps on file written parental
consent from the parent or legal guardian and verifies the date of birth of
[ such youth the minor ]. An organization's
house rules may further limit the involvement of minors in the conduct of bingo
games.
F. No qualified organization shall sell any instant bingo,
pull-tab, seal card, [ event game card, ] or
electronic [ game card pull-tab ] to any
individual under 18 years of age. No individual under 18 years of age shall
play or redeem any instant bingo, pull-tab, seal card, [ event
game card, ] or electronic [ game card
pull-tab ].
G. Unless otherwise prohibited by the Code of Virginia or this chapter, nonmembers who are under the direct supervision of a bona fide member may participate in the conduct of bingo.
H. All [ volunteer ] game
workers shall have in their possession a picture identification, such as a
driver's license or other government-issued identification, and shall make the
picture identification available for inspection upon request by a department
agent while participating in the management, operation, or conduct of a bingo
game.
I. A game manager who is a bona fide member of the organization and is designated by the organization's management as the person responsible for the operation of the bingo game during a particular session shall be present any time a bingo game is conducted.
J. Organizations shall ensure that all charitable gaming equipment is in working order before charitable gaming activities commence.
K. Any organization selling bingo, instant bingo,
pull-tabs, seal cards, [ event game cards, ] or
electronic [ game cards pull-tabs ] shall:
1. Maintain a supplier's invoice or a legible copy thereof at the location where the gaming is taking place and cards are sold. The original invoice or legible copy shall be stored in the same storage space as the gaming supplies. All gaming supplies shall be stored in a secure area that has access limited only to bona fide members of the organization; and
2. Pay for all gaming supplies only by a check drawn on the charitable gaming account of the organization.
A complete inventory of all such gaming supplies shall be maintained by the organization on the premises where the gaming is being conducted.
L. A [ volunteer working a ] bingo
session [ game worker ] may receive complimentary food
and nonalcoholic beverages provided on premises, as long as the retail value of
such food and beverages does not exceed $15 for each session.
M. Permitted organizations shall not commingle records,
supplies, or funds from permitted activities with those from instant bingo,
pull-tabs, seal cards, [ event game cards, ] or
electronic [ game cards pull-tabs ] sold
in social quarters in accordance with § 18.2-340.26:1 of the Code of
Virginia.
N. Individuals who are not members of an organization or are members who do not participate in any charitable gaming activities may be paid reasonable fees for preparation of quarterly and annual financial reports.
O. [ No Except as allowed
pursuant to § 18.2-340.34:1 of the Code of Virginia, no ] free
packs, free electronic bingo devices, discounts, or remuneration in any other
form shall be provided directly or indirectly to [ volunteers
game workers, ] members of their family, or individuals residing in
their household. The reduction of tuition, dues, or any fees or payments due as
a result of a member or shareholder, or anyone in their household, working
bingo games or raffles is prohibited.
P. Individuals providing security for an organization's charitable gaming activity shall not participate in the charitable gaming activity and shall not be compensated with charitable gaming supplies or with rentals of electronic bingo devices [ or electronic pull-tab devices ].
Q. No organization shall award any prize money or any merchandise valued in excess of the amounts specified by the Code of Virginia.
R. Multiple bingo sessions shall be permitted in a single
[ premise premises ] as long as the sessions
are distinct from one another and are not used to advertise or do not result in
the awarding of more in prizes than is permitted for a single qualified
organization. All leases for organizations to conduct charitable gaming in a
single [ premise premises ] shall ensure
[ gaming activity each session ] is separated
by an interval of at least 30 minutes. Bingo sales for the subsequent session
may take place during the 30-minute break once the building is cleared of all
patrons and workers from the previous session.
S. All bingo and instant bingo, pull-tabs, seal card,
[ event game card, ] or electronic [ game
card pull-tab ] sales, play, and redemption must occur
within the time specified on the charitable gaming permit.
T. Instant bingo, pull-tabs, seal cards, [ event
game cards, ] or electronic [ game cards
pull-tabs ] shall only be sold in conjunction with a bingo session,
except as authorized by [ § 18.2-340.26:2 §
18.2-340.26:1 or 18.2-340.26:2 ] of the Code of Virginia. No
instant bingo, pull-tabs, seal card, [ event game card, ]
or electronic [ game card pull-tab ]
sales shall take place more than two hours before [ the
selection of the first ball for the first bingo game ] or
[ more than two hours ] after [ a session
the selection of the last ball for the last bingo game ]. If
multiple sessions are held at the same location, no instant bingo, pull-tab,
seal card, [ event game card, ] or electronic
[ game card pull-tab ] sales shall be
conducted during the required 30-minute break between [ gaming
activities sessions ]. The department may take action if
it believes that a bingo session is not legitimate or is being conducted in a
manner such that instant bingo, pull-tabs, seal cards, [ event
game cards, ] or electronic [ game cards
pull-tabs ] are not being sold in conjunction with a bingo session.
U. Only a [ volunteer ] game
worker [ of for a ] qualified [ organizations
organization ] may rent, exchange, or otherwise provide electronic
bingo devices [ or electronic pull-tab devices ] to
players.
V. A qualified organization shall conduct only bingo games and raffles listed on a game program for that session. The program shall list all prize amounts. If the prize amounts are determined by attendance or at the end of a game, the game program shall list the attendance required for the prize amount or disclose that prizes shall be determined at the end of a game and the method for determining the prize amount. In such case, the organization shall announce the prize amount at the end of the game.
W. A qualified organization selling instant bingo,
pull-tabs, seal cards, or electronic [ game cards
pull-tabs ] shall post a flare provided by the manufacturer at the
location where such cards are sold. All such sales and prize payouts shall be
in accordance with the flare for that deal.
X. Only qualified organizations, facilities in which qualified organizations play bingo, and suppliers permitted by the department shall advertise a bingo game. Providing players with information about bingo games through printed advertising is permitted, provided the name of the qualified organization shall be in a type size equal to or larger than the name of the premises, the hall, or the word "bingo." Printed advertisements shall identify the use of proceeds percentage reported in the past quarter or fiscal year.
Y. Raffles that award prizes based on a percentage of gross receipts shall use prenumbered tickets.
Z. The following rules shall apply to instant bingo,
pull-tab, [ seal card, or event game card or seal
card ] dispensing devices:
1. A dispensing device shall only be used at a location and time during which a qualified organization holds a permit to conduct charitable gaming. Only cards purchased by an organization to be used during the organization's charitable gaming activity shall be in the dispensing device.
2. Keys to the dispensing area and coin/cash box shall be in the possession and control of the game manager or designee of the organization's board of directors at all times. Keys shall at all times be available at the location where the dispensing device is being used.
3. The game manager or designee shall provide access to the dispensing device to a department agent for inspection upon request.
4. Only a [ volunteer ] game
worker of an organization may stock the dispensing device, remove cash, or pay
winners' prizes.
AA. Organizations shall only purchase gaming supplies from a supplier who has a current permit issued by the department.
BB. An organization shall not tamper with bingo paper received from a supplier.
CC. The total amount of all discounts given by any organization during any fiscal year shall not exceed 1.0% of the organization's gross receipts.
11VAC15-40-60. Rules of play.
A. Each organization shall adopt "house rules"
regarding conduct of the game. Such rules shall be consistent with the
provisions of the law and this chapter. "House rules" shall be
conspicuously posted or [ , at an organization's option, ]
printed on the game program.
B. All players shall be physically present at the location where the bingo numbers for a bingo game are drawn to play the game or to claim a prize. Seal card prizes that can only be determined after a seal is removed or opened must be claimed within 30 days of the close of a deal. All other prizes must be claimed on the game date.
C. The following rules of play shall govern the sale of instant bingo, pull-tabs, and seal cards:
1. No cards that have been marked, defaced, altered, tampered with, or otherwise constructed in a manner that tends to deceive the public or affect the chances of winning or losing shall be placed into play.
2. Winning cards shall have the winning symbol or number defaced or punched immediately after redemption by the organization's authorized representative.
3. An organization may commingle unsold instant bingo cards and pull-tabs with no more than one additional deal. The practice of commingling deals shall be disclosed to the public via house rules or in a similar manner. Seal card deals shall not be commingled.
4. If a deal is not played to completion and unsold cards remain, the remaining cards shall be sold at the next session the same type of ticket is scheduled to be sold. If no future date is anticipated, the organization shall, after making diligent efforts to sell the entire deal, consider the deal closed or completed. The unsold cards shall be retained for [ a minimum of ] three years following the close of the fiscal year and shall not be opened.
5. All seal card games purchased shall contain the sign-up sheet, the seals, and the cards packaged together in each deal.
6. Progressive seal card prizes not claimed within 30 days shall be carried forward to the next progressive [ seal card ] game in progress and paid to the next progressive [ seal card ] game prize winner.
D. No one involved in the conduct of bingo may play bingo
at any session they have worked or intend to work. No one involved in the sale
or redemption of any instant bingo, pull-tabs, seal cards, or electronic
[ game cards pull-tabs ] may purchase
directly or through others instant bingo, pull-tab, seal card, or electronic
[ game card pull-tab ] products from
organizations they assist on the day they have worked or from any deal they have
helped sell or redeem, whichever occurs later.
E. Electronic bingo.
1. Electronic bingo devices may be used by bingo players in the following manner:
a. Players may input into the device each number called or the device may automatically daub each number as the number is called;
b. Players must notify the game operator or caller of a winning pattern of bingo by a means other than use of the electronic [ bingo ] device;
c. Players are limited to playing a maximum of 54 card faces per device per game;
d. Electronic bingo devices shall not be reserved for players. Each player shall have an equal opportunity to use the available [ electronic bingo ] devices on a first come, first served basis;
e. Each electronic bingo device shall produce a player receipt with the organization name, date, time, location, sequential transaction or receipt number, number of electronic bingo cards loaded, cost of electronic bingo cards loaded, and date and time of the transaction. Images of cards or faces stored in an electronic [ bingo ] device must be exact duplicates of the printed faces if faces are printed;
f. Department agents may examine and inspect any electronic bingo device and related system. Such examination and inspection shall include immediate access to the [ electronic bingo ] device and unlimited inspection of all parts and associated systems and may involve the removal of equipment from the game premises for further testing;
g. All electronic bingo devices must be loaded or enabled for play on the premises where the game will be played;
h. All electronic bingo devices shall be rented or otherwise provided to a player only by an organization and no part of the proceeds of the rental of such devices shall be paid to a landlord, or his employee, agent, or member of his immediate family; and
i. If a player's call of a bingo is disputed by another player, or if a department agent makes a request, one or more cards stored on an electronic bingo device shall be printed by the organization.
2. Players may exchange a defective electronic bingo device for another [ electronic bingo ] device provided a disinterested player verifies that the device is not functioning. A disinterested player shall also verify that no numbers called for the game in progress have been keyed into the replacement [ electronic bingo ] device prior to the exchange.
F. The following rules of play shall govern the conduct of raffles:
1. Before a prize drawing, each stub or other detachable section of each ticket sold shall be placed into a receptacle from which the winning tickets shall be drawn. The receptacle shall be designed so that each ticket placed in it has an equal chance to be drawn.
2. All prizes shall be valued at fair market value.
G. The following rules shall apply to "decision bingo" games:
1. Decision bingo shall be played on bingo cards in the conventional manner.
2. Players shall enter a game by paying a predetermined amount for each card face in play.
3. Players shall pay a predetermined fee for each set of three bingo numbers called for each card in play.
4. The prize amount shall be the total of all fees not to exceed the prize limit set forth for regular bingo in § 18.2-340.33 of the Code of Virginia. Any excess funds shall be retained by the organization.
5. The predetermined amounts in subdivisions 2 and 3 of this subsection shall be printed in the game program. The prize amount for a game shall be announced before the prize is paid to the winner.
H. The following rules shall apply to "treasure chest" games:
1. The organization shall list the treasure chest game on the bingo game program as a "Treasure Chest Raffle."
2. The organization shall have house rules posted that describe how the game is to be played.
3. The treasure chest participant shall only be selected through some other authorized charitable game at the same bingo session.
4. The organization shall account for all funds as treasure chest/raffle sales on the session reconciliation form.
5. If the player does not open the lock on the treasure chest, the game manager or his designee shall proceed to try every key until the correct key opens the treasure chest lock to show all players that one of the keys will open the lock.
I. The following rules shall apply to progressive bingo games:
1. Bingo paper sold for use in progressive bingo games shall conform to the standards set forth in 11VAC15-40-130.
2. Organizations shall not include in admission packs the bingo paper intended for use in progressive bingo games.
3. Any progressive bingo game, its prize, and the number of bingo numbers to be called shall be clearly announced before the progressive bingo game is played and shall be posted on the premises where the progressive bingo game is played during each session that a progressive bingo game is played.
4. Pricing for a progressive bingo game card or sheet shall be listed on the game program.
5. If the predetermined pattern is not covered within the predetermined number of bingo numbers to be called, then the number of bingo numbers called will increase by one number for each subsequent session the progressive [ bingo ] game is played.
6. If the predetermined pattern is not covered within the predetermined number of bingo numbers to be called for that progressive bingo game, then the game will continue as a regular bingo game until the predetermined pattern is covered and a regular bingo prize is awarded.
7. The prize for any progressive bingo game shall be in accordance with the provisions of [ subdivision 10 of ] § 18.2-340.33 of the Code of Virginia.
J. The following rules shall apply to "WINGO":
1. "WINGO" shall be played only for the hearing-impaired players.
2. "WINGO" shall utilize a visual device such as an oversized deck of cards in place of balls selected from a blower.
3. A caller must be in an area visible to all players and shall randomly select cards or other visual devices one at a time and display them so that all players can see them.
4. The organization must have house rules for "WINGO" and the rules shall identify how players indicate that they have won.
5. All financial reporting shall be consistent with reporting for a traditional bingo game.
K. The following rules of play shall apply to event games:
1. No instant bingo cards or pull-tabs that have been marked, defaced, altered, tampered with, or otherwise constructed in a manner that tends to deceive the public or affect the chances of winning or losing shall be placed into play.
2. Instant bingo cards and pull-tabs used in an event game shall not be offered for sale or sold at a purchase price other than the purchase price indicated on the flare for that particular deal.
3. The maximum prize amount for event games shall not
exceed the amount set forth in [ subdivision 9 of ] § 18.2-340.33
[ (9) ] of the Code of Virginia for instant bingo,
pull-tab, or seal card.
4. A sign-up sheet is not required for event games in which the winner or winners are determined using a seal card.
5. Organizations shall determine the winner or winners of event games during the same bingo session in which the instant bingo cards or pull-tabs are sold.
6. An authorized representative of the organization shall deface or punch the winning instant bingo cards or winning pull-tabs immediately after redemption.
7. If unsold bingo cards or unsold pull-tabs remain, the unsold cards shall be retained for [ a minimum of ] three years following the close of the fiscal year and shall not be opened.
Article 3
Bank Accounts, Recordkeeping, Financial Reporting, Audits, Fees
11VAC15-40-70. Bank accounts.
A. A qualified organization shall maintain a charitable gaming bank account that is separate from any other bank account and all gaming receipts shall be deposited into the charitable gaming bank account.
B. Disbursements for expenses other than prizes and reimbursement of meal expenses shall be made by check directly from a charitable gaming account.
C. All charitable gaming bank account records, including but not limited to monthly bank statements, canceled checks or facsimiles thereof, and reconciliations, shall be maintained for [ a minimum of ] three years following the close of a fiscal year.
D. All receipts from each session of bingo games and
instant bingo, pull-tabs, [ or ] seal cards,
[ or electronic pull-tabs ] shall be deposited by the
second business day following the session at which they were received.
E. Raffle proceeds shall be deposited into the qualified organization's charitable gaming bank account no later than the end of the calendar week following the week during which the organization received the proceeds.
11VAC15-40-80. Recordkeeping.
A. In addition to the records required by § 18.2-340.30 D of the Code of Virginia, qualified organizations conducting bingo shall maintain a system of records for a minimum of three years [ from the close of the fiscal year ], unless otherwise specified [ , ] for each gaming session on forms prescribed by the department, or reasonable facsimiles of those forms approved by the department, that include:
1. Charitable gaming supplies purchased and used;
2. A session reconciliation form [ and
, ] an instant bingo, pull-tab, [ or ] seal
card [ reconciliation form ], [ or
and an ] electronic [ game card pull-tab ]
reconciliation form completed and signed within 48 hours of the end of the
session by the bingo manager;
3. All discounts provided;
4. A reconciliation to account for cash received from floor workers for the sale of extra bingo sheets for any game;
5. [ Number of electronic bingo devices
rented, unique serial numbers of such devices, number of faces sold by each
unit, and a summary report for each session to include date, time, location,
and detailed information on income and expenses The summary report
that electronic bingo systems are required to maintain pursuant to
11VAC15-40-130 D 11 ];
6. An admissions control system that provides a cross-check on the number of players in attendance and admission sales. This may include a ticket control system, cash register, or any similar system;
7. All operating expenses including rent, advertising, and security. Copies of invoices for all such expenses shall also be maintained;
8. Expected and actual receipts from games played on hard cards and number of games played on hard cards;
9. A record of the name and address of each winner for all seal cards; in addition, the winning ticket and seal card shall be maintained for a minimum of 90 days after the session;
10. A record of all door prizes awarded; and
11. For any prize or jackpot of a value that meets or exceeds the reporting requirements in the Internal Revenue Service's Publication 3079, the name and address of each individual to whom any such prize or jackpot is awarded and the amount of the award.
B. Qualified organizations conducting raffles shall have a recordkeeping system to account for cash receipts, cash disbursements, raffle tickets purchased or sold, and prizes awarded. All records shall be maintained for [ a minimum of ] three years from the close of the fiscal year. The recordkeeping system shall include:
1. Invoices for the purchase of raffle tickets, which shall reflect the following information:
a. Name and address of supplier;
b. Name of purchaser;
c. Date of purchase;
d. Number of tickets printed;
e. Ticket number sequence for tickets printed; and
f. Sales price of individual ticket;
2. A record of cash receipts from raffle ticket sales by tracking the total number of tickets available for sale, the number issued to sellers, the number returned, the number sold, and reconciliation of all raffle sales to receipts;
3. Serial numbers of tickets for raffle sales initiated and concluded at a bingo game or sequentially numbered tickets, which shall state the name, address, and telephone number of the organization, the prize or prizes to be awarded, the date of the prize drawing or selection, the selling price of the raffle ticket, and the charitable gaming permit number;
4. For any raffle prize of a value that meets or exceeds the reporting requirements in the Internal Revenue Service's Publication 3079, receipts on which prize winners must provide printed name, residence address, and the amount and description of the prize received; and
5. Deposit records of the required weekly deposits of raffle receipts.
C. All raffle tickets shall have a detachable section; be consecutively numbered with the detachable section having the same number; provide space for the purchaser's name, complete address, and telephone number; and state (i) the name and address of the organization; (ii) the prize or prizes to be awarded; (iii) the date, time and location of the prize drawing; (iv) the selling price of the ticket; and (v) the charitable gaming permit number. Winning tickets and unsold tickets shall be maintained for [ a minimum of ] three years from the close of the fiscal year.
D. All unused charitable gaming supplies shall either be
returned for refund to the original supplier in unopened original packaging in
resalable condition as determined by the supplier or [ turned in
to the department for destruction destroyed following notification
to the department on a form prescribed by the department ]. The
organization shall maintain a receipt for all such supplies returned to the
supplier or [ turned in to the department destroyed ].
11VAC15-40-90. Financial reporting, penalties, inspections, and audits.
A. Each charitable gaming permit holder shall file an annual report of receipts and disbursements by March 15 of each year on a form prescribed by the department. The annual report shall cover the activity for the fiscal year.
B. The annual report shall be accompanied by the audit and administration fee as established by the department for the fiscal year unless the fee has been remitted with quarterly reports or the organization is exempt from payment of the fee pursuant to § 18.2-340.23 of the Code of Virginia.
C. An organization desiring an extension to file its annual report for good cause shall request the extension in writing on a form prescribed by the department and shall pay the projected audit and administration fee, unless exempt from payment of the fee pursuant to § 18.2-340.23 of the Code of Virginia. The extension request and payment of projected fees shall be made in accordance with the provisions of § 18.2-340.30 of the Code of Virginia.
D. Unless exempted by § 18.2-340.23 of the Code of Virginia, qualified organizations realizing any gross gaming receipts in any calendar quarter shall file a quarterly report of receipts and disbursements on a form prescribed by the department as follows:
|
Quarter Ending |
Date Due |
|
March 31 |
June 1 |
|
June 30 |
September 1 |
|
September 30 |
December 1 |
|
December 31 |
March 1 |
Qualified organizations shall submit quarterly reports with the appropriate audit and administration fee unless the organization is exempt from payment of the fee pursuant to § 18.2-340.23 of the Code of Virginia. An annual financial report may substitute for a quarterly report if the organization has no further charitable gaming income during the remainder of the reporting period and the annual report is filed by the due date for the applicable calendar quarter.
E. An organization desiring an extension to file its quarterly report for good cause shall request the extension in writing on a form prescribed by the department and shall pay the projected audit and administration fee unless exempt from payment of the fee pursuant to § 18.2-340.23 of the Code of Virginia. The extension request and payment of projected fees shall be made in accordance with the provisions of § 18.2-340.30 of the Code of Virginia.
F. Organizations failing to file required reports, request an extension, or make fee payments when due shall be charged a penalty of $25 per day from the due date until such time as the required report is filed.
G. Any qualified organization in possession of funds derived from charitable gaming (including those who have ceased operations), regardless of when such funds may have been received or whether it has a valid permit from the department, shall file an annual financial report on a form prescribed by the department on or before March 15 of each year until such funds are depleted. If an organization ceases the conduct of charitable gaming, it shall provide the department with the name of an individual who shall be responsible for filing financial reports. If no such information is provided, the president of an organization shall be responsible for filing reports until all charitable gaming proceeds are depleted.
H. If an organization has been identified through inspection, audit, or other means as having deficiencies in complying with statutory or regulatory requirements or having ineffective internal controls, the department may impose restrictions or additional recordkeeping and financial reporting requirements.
I. Any records deemed necessary to complete an inspection, audit, or investigation may be collected by the department, its employees, or its agents from the premises of an organization or any location where charitable gaming is conducted. The department shall provide a written receipt of such records at the time of collection.
11VAC15-40-100. Use of proceeds.
A. All payments by an organization intended as use of proceeds must be made by check written from the organization's charitable gaming account.
B. Use of proceeds payments may be made for scholarship
funds or the future acquisition, construction, remodeling, or improvement of
real property or the acquisition of other equipment or vehicles to be used for
religious, charitable, educational, or community purposes. In addition, an organization
may obtain department approval to establish a special fund account or an
irrevocable trust fund for special circumstances. Transfers to such an account
or an irrevocable trust fund from the organization's charitable gaming account
may be included as a use of proceeds if the payment is authorized by
[ an the ] organization's board of directors.
No payments made to such a special fund account shall be withdrawn for other than the specified purpose unless prior notification is made to the department.
C. Expenditures of charitable gaming funds for social or recreational activities or for events, activities, or programs that are open primarily to an organization's members and their families shall not qualify as use of proceeds unless substantial benefit to the community is demonstrated.
D. Payments made to or on behalf of indigent, sick, or deceased members or their immediate families shall be allowed as use of proceeds provided they are approved by the organization's board of directors and the need is documented.
E. Payments made directly for the benefit of an individual member, member of his family, or person residing in his household shall not be allowed as a use of proceeds unless authorized by law or elsewhere in this chapter.
F. Use of proceeds payments by an organization shall not be made for any activity that is not permitted by federal, state, or local laws or for any activity that attempts to influence or finance directly or indirectly political persons or committees or the election or reelection of any person who is or has been a candidate for public office.
G. Organizations shall maintain details of all use of proceeds disbursements for a minimum of three years [ from the close of the fiscal year ] and shall make this information available to the department upon request.
H. The department may disallow a use of proceeds payment to be counted against the minimum percentage referred to in 11VAC15-40-20 D. If any payment claimed as use of proceeds is subsequently disallowed, an organization may be allowed additional time as specified by the department to meet minimum use of proceeds requirements.
Article 4
Rent
11VAC15-40-110. Requirements regarding renting premises, agreements, and landlord participation.
A. No organization shall rent or use any leased premises to conduct charitable gaming unless all terms for rental or use are set forth in a written agreement and signed by the parties thereto prior to the issuance of a permit to conduct charitable gaming. A qualified organization that leases a building or other premises that is utilized in whole or in part for the purpose of conducting charitable gaming more frequently than two calendar days in one calendar week shall only lease such premises directly from (i) a qualified organization that is exempt from taxation pursuant to § 501 (c) of the Internal Revenue Code or (ii) any county, city, or town.
B. Organizations shall not make payments to a landlord except by check drawn on the organization's charitable gaming account.
C. No landlord, his agent or employee, member of his immediate family, or person residing in his household shall make directly or indirectly a loan to any officer, director, game manager, or entity involved in the management, operation, or conduct of charitable gaming of an organization in Virginia that leases its charitable gaming facility from the landlord.
D. No landlord, his agent or employee, member of his immediate family, or person residing in his household shall make any direct or indirect payment to any officer, director, game manager, or entity involved in the management, operation, or conduct of charitable gaming conducted at a facility rented from the landlord in Virginia unless the payment is authorized by the lease agreement and is in accordance with the law.
E. No landlord, his agent or employee, member of his immediate family, or person residing in the same household shall at charitable games conducted on the landlord's premises:
1. Participate in the management, operation, or conduct of any charitable games;
2. Sell, lease, or otherwise provide any bingo supplies
including, but not limited to, bingo cards, pull-tab cards, electronic
[ game cards pull-tabs ], or other game
pieces; or
3. Require as a condition of the lease or contract that a particular manufacturer, distributor, or supplier of bingo supplies is used by the organization.
"Bingo supplies" as used in this chapter shall not include glue, markers, or tape sold from concession stands or from a location physically separated from the location where bingo supplies are normally sold.
F. No member of an organization involved in the management, operation, or conduct of charitable gaming shall provide any services to a landlord or be remunerated in any manner by the landlord of the facility where an organization is conducting its charitable gaming.
Part III
Suppliers
11VAC15-40-120. Suppliers of charitable gaming supplies: application, qualifications, suspension, revocation or refusal to renew permit, maintenance, and production of records.
A. Prior to providing any charitable gaming supplies, a
supplier shall submit an application on a form prescribed by the department and
receive a permit. A $1,000 application fee payable to the Treasurer of Virginia
is required. In addition, a supplier must be authorized to conduct business in
the Commonwealth of Virginia, which may include, but not be limited to,
registration with the State Corporation Commission, the Department of Taxation,
and the Virginia Employment Commission. The actual cost of background
investigations for a permit may be billed by the department to an applicant.
[ The department shall act on an application within 90 days of
receipt of the application. ]
B. The department may refuse to issue a permit or may suspend or revoke a permit if an officer, director, employee, agent, or owner:
1. Is operating without a valid license, permit, or certificate as a supplier or manufacturer in any state in the United States;
2. Fails or refuses to recall a product as directed by the department;
3. Conducts business with unauthorized entities or is not authorized to conduct business in the Commonwealth of Virginia;
4. Has been convicted of or pleaded nolo contendere to any crime as specified by § 18.2-340.34 B of the Code of Virginia; has had any license, permit, certificate, or other authority related to activities defined as charitable gaming in the Commonwealth suspended or revoked in the Commonwealth or in any other jurisdiction; has failed to file or has been delinquent in excess of one year in the filing of any tax returns or the payment of any taxes due the Commonwealth; or has failed to establish a registered office or registered agent in the Commonwealth if so required by § 13.1-634 or 13.1-763 of the Code of Virginia. As this provision relates to employees or agents, it shall only apply to individuals involved in sales to or solicitations of customers in the Commonwealth of Virginia;
5. Fails to notify the department within 20 days of the occurrence, knowledge, or receipt of the filing of any administrative or legal action relating to charitable gaming or the distribution of charitable gaming supplies involving or concerning the supplier, any officers or directors, employees, agent, or owner during the term of its permit;
6. Fails to provide to the department upon request a
current Letter for Company Registration on file with the U.S. Department of
Justice-Gambling Devices Registration Unit, if required in accordance with
[ The the ] Gambling Devices Act of 1962
[ , 15 USC §§ 1171-1178, (15 USC 1171-1178) ]
for any device that it sells, distributes, services, or maintains in the
Commonwealth of Virginia; or
7. Has been engaged in conduct that would compromise the department's objective of maintaining the highest level of integrity in charitable gaming.
C. A supplier shall not sell, offer to sell, or otherwise provide charitable gaming supplies for use by anyone in the Commonwealth of Virginia other than to an organization with a permit from the department or another permitted supplier. However, a supplier may:
1. Sell charitable gaming supplies to an organization that
expects to gross the amount set forth in § 18.2-340.23 of the Code of
Virginia or less in any 12-month period, providing that the amount of such
purchase would not be reasonably expected to produce more than the amount set
forth in § 18.2-340.23 of the Code of Virginia in gross sales. For each
such organization, the supplier shall maintain the name, address, and telephone
number. The supplier shall also obtain a written and signed statement from an
officer or game manager of such organization confirming that gross receipts are
expected to be the amount set forth in § 18.2-340.23 of the Code of
Virginia or less. Such statement shall be dated and kept on file for
[ a minimum of ] three years from the [ end
close ] of a fiscal year.
2. Sell bingo cards and paper to persons or entities other
than qualified organizations provided such supplies shall not be sold or
otherwise provided for use in charitable gaming activities regulated by the
department or in unlawful gambling activities. For each such sale, the supplier
shall maintain the name, address, and telephone number of the purchaser. The
supplier shall also obtain a written statement from the purchaser verifying
that such supplies will not be used in charitable gaming or any unlawful
gambling activity. Such statement shall be dated and kept on file for
[ a minimum of ] three years from the [ end
close ] of a fiscal year. Payment for such sales in excess of $50
shall be accepted in the form of a check.
3. Sell pull-tabs, seal cards, [ event game
cards, ] and electronic [ game cards
pull-tabs ] to organizations for use only upon the premises owned
or exclusively leased by the organization and at such times as the portion of
the premises in which the pull-tabs, seal cards, [ event game
cards, ] or electronic [ game cards
pull-tabs ] are sold is open only to members and their guests as
authorized by § 18.2-340.26:1 of the Code of Virginia. Each such sale
shall be accounted for separately and the accompanying invoice shall be clearly
marked: "For Use in Social Quarters Only."
All such sales shall be documented pursuant to subsection
H of this section and reported to the department pursuant to subsection J of
this section. This provision shall not apply to the sale to landlords of
equipment and video systems as defined in this chapter. [ Equipment
and video systems shall not include dispensing devices, electronic bingo
devices, and player devices. ]
D. A supplier shall not sell, offer to sell, or otherwise provide charitable gaming supplies to any individual or organization in the Commonwealth of Virginia unless the charitable gaming supplies are purchased or obtained from a manufacturer or another permitted supplier. Suppliers may take back for credit and resell supplies received from an organization with a permit that has ceased charitable gaming or is returning supplies not needed.
E. No supplier, supplier's agent, or employee may be involved in the management, operation, or conduct of charitable gaming in the Commonwealth of Virginia. No member of a supplier's immediate family or person residing in the same household as a supplier may be involved in the management, operation, or conduct of charitable gaming of any customer of the supplier in the Commonwealth of Virginia. No supplier, supplier's agent, or employee may participate in any charitable gaming of any customer of the supplier in the Commonwealth of Virginia. For the purposes of this regulation, servicing of electronic [ bingo ] devices [ or electronic pull-tab devices ] shall not be considered conduct or participation.
F. The department shall conduct a background investigation prior to the issuance of a permit to any supplier. The investigation may include, but shall not be limited to, the following:
1. A search of [ the Virginia Central
Criminal Records Exchange (CCRE) criminal history ] on
all officers, directors, and owners; and
2. Verification of current compliance with Commonwealth of Virginia tax laws.
If the officers, directors, or owners are domiciled outside of the Commonwealth of Virginia, or have resided in the Commonwealth of Virginia for fewer than five years, a criminal history search conducted by the appropriate authority in any state in which they have resided during the previous five years shall be provided by the applicant.
G. Appropriate information and authorizations shall be provided to the department to verify information cited in subsection F of this section.
H. Suppliers shall document each sale or rental of charitable gaming supplies to an organization in the Commonwealth of Virginia on an invoice, which reflects the following:
1. Name, address, and OCG number of the organization;
2. Date of sale or rental and location where bingo supplies are shipped if different from the billing address;
3. Name, form number, and serial number of each deal of
instant bingo, pull-tabs, seal cards, electronic [ game cards
pull-tabs ], or bundles and the [ number
quantity ] of cards in each deal;
4. Quantity of deals sold, the cost per deal, the selling price per card, the cash take-in per deal, and the cash payout per deal;
5. Serial number of the top sheet in each pack of
disposable bingo paper, the [ number quantity ]
of sheets in each pack or pad, the cut and color, and the [ number
quantity ] of packs or pads sold;
6. Serial number for each series of uncollated bingo paper and the number of sheets sold;
7. Detailed information concerning the type, quantity, and
individual price of any other charitable gaming supplies or related items
including, but not limited to, concealed face bingo cards, hard cards, markers
or daubers and refills, or any other merchandise. For concealed face bingo
cards, the [ number quantity ] of sets,
price per set, and the serial number of each set shall be included;
8. Serial number of each [ player
electronic pull-tab ] device, [ the form
a description of the physical attributes ] of the [ player
electronic pull-tab ] device, the [ number
quantity ] of [ player electronic
pull-tab ] devices sold or rented, and the physical address to
which each [ player electronic pull-tab ] device
is shipped [ or delivered ];
9. Serial number and description of any other equipment
sold or rented that is used to facilitate the distribution, play, and
redemption of electronic [ game cards pull-tabs ]
and the physical address to which the equipment is shipped [ or
delivered ]; and
10. Any type of equipment, device, or product manufactured for or intended to be used in the conduct of charitable games including, but not limited to, designators, designator receptacles, number display boards, selection devices, dispensing machines, and verification devices.
I. Suppliers shall ensure that two copies of the detailed invoice are provided to the customer for each sale of charitable gaming supplies.
J. Each supplier shall provide a report to the department
by March 1 of each year on sales of charitable gaming supplies for the fiscal
year ending December 31 of the previous year to each organization in the Commonwealth
of Virginia. This report shall be provided to the department [ on
computer disk or other department-approved media via a
department-approved electronic medium ]. The report shall include
the name and address of each organization and the following information for
each sale or transaction:
1. Bingo paper sales including purchase price, description
of paper to include [ number quantity ] of
sheets in pack and [ number quantity ] of
faces on sheet, and quantity of single sheets or packs shipped;
2. Deals of instant bingo, pull-tabs, seal cards,
electronic [ game cards pull-tabs ], or
any other raffle sales including purchase price, deal name, deal form number,
[ number quantity ] of tickets in deal,
ticket price, cash take-in per deal, cash payout per deal, and [ number
quantity ] of deals;
3. Electronic bingo device sales including purchase or
rental price and [ number quantity ] of
units;
4. Equipment used to facilitate the distribution, play, and
redemption of electronic [ game cards pull-tabs ]
including purchase or rental price, description of equipment, [ number
quantity ] of units of each type of equipment, and the physical
address to which the equipment is shipped [ or delivered ];
and
5. Sales of miscellaneous items such as daubers, markers, and
other merchandise including purchase price, description of product, and
[ number quantity ] of units.
K. The department shall set manufacturing and testing criteria for all electronic bingo devices and other equipment used in the conduct of charitable gaming. An electronic bingo device shall not be sold, leased, or otherwise furnished to any person in the Commonwealth of Virginia for use in the conduct of charitable gaming until an identical sample device containing identical proprietary software has been certified by a testing facility that has been formally recognized by the department as a testing facility that upholds the standards of integrity established by the department. The testing facility must certify that the device conforms, at a minimum, to the restrictions and conditions set forth in these regulations. Once the testing facility reports the test results to the department, the department will either approve or disapprove the submission and inform the manufacturer of the results within 10 business days. If any such equipment does not meet the department's criteria, it shall be recalled and shall not be distributed in the Commonwealth of Virginia. The cost of testing shall be borne by the manufacturer of such equipment.
L. Department employees shall have the right to inspect all electronic and mechanical equipment used in the conduct of charitable gaming.
M. Suppliers, their agents and employees, members of the supplier's immediate family, or persons residing in their household shall not make any loan directly or indirectly to any organization or officer, director, game manager, or entity involved in the management, operation, or conduct of charitable gaming of a supplier's customer located in the Commonwealth of Virginia.
N. No supplier, supplier's agent, or employee shall directly or indirectly provide a rebate, discount, or refund to any person other than an organization that purchases supplies or leases or purchases equipment from the supplier. All such transactions shall be recorded on the supplier's account books.
O. A supplier shall not rent, sell, or otherwise provide
electronic bingo devices or equipment used to distribute, play, or redeem
electronic [ game cards pull-tabs ] unless
the supplier possesses a valid permit in the Commonwealth of Virginia.
P. A written agreement specifying the terms of lease or
rental shall be required for any electronic bingo devices or equipment used to
distribute, play, or redeem electronic [ game cards
pull-tabs ] provided to an organization.
11VAC15-40-130. Construction and other standards for bingo,
instant bingo, pull-tabs, seal cards, [ event games, ]
raffles, electronic bingo devices, and instant bingo, pull-tab, and seal
card dispensers.
A. No supplier shall knowingly sell or otherwise provide to an organization and no organization shall knowingly use bingo supplies unless they conform to the following construction standards:
1. Disposable paper sold shall be of sufficient weight and quality to allow for clearly readable numbers and to prevent ink from spreading, bleeding, or otherwise obscuring other numbers or cards.
2. Each sheet of disposable bingo paper shall be comprised of cards bearing a serial number. No serial number shall be repeated on or in the same style, series, and color of cards within a three-year period.
3. Disposable bingo paper assembled in books or packs shall not be separated except for single-sheet specials. This provision does not apply to two-part cards on which numbers are filled by players and one part is separated and provided to an organization for verification purposes.
4. Each unit of disposable bingo paper shall have an exterior label listing the following information:
a. Description of product;
b. Number of packs or loose sheets;
c. Series numbers;
d. Serial number of the top sheet;
e. Number of cases;
f. Cut of paper; and
g. Color of paper.
5. "Lucky Seven" bingo cards or electronic facsimiles thereof shall have a single face where seven numbers shall be chosen. "Lucky Seven" sheets or electronic facsimiles thereof shall have multiple faces where seven numbers shall be chosen per face.
B. No supplier shall knowingly sell or otherwise provide
to an organization and no organization shall knowingly use instant bingo,
pull-tab, [ or ] seal cards [ , or event
game cards ] unless they conform to the following
construction standards:
1. Cards shall be constructed so that concealed numbers, symbols, or winner protection features cannot be viewed or determined from the outside of the card by using a high intensity lamp of 500 watts, with or without utilizing a focusing lens.
2. Deals shall be designed, constructed, glued, and assembled in a manner to prevent determination of a winning or losing ticket without removing the tabs or otherwise uncovering the symbols or numbers as intended.
3. Each card in a deal shall bear the same serial number. Only one serial number shall be used in a deal. No serial number used in a deal shall be repeated by the same manufacturer on that same manufacturer's form within a three-year period. The flare of each deal shall accompany the deal and shall have affixed to it the same serial number as the tickets in such deal.
4. Numbers or symbols on cards shall be fully visible in the window and shall be placed so that no part of a number or symbol remains covered when the tab is removed.
5. Cards shall be glued on all edges and around each window. Glue shall be of sufficient strength and type to prevent the undetectable separation or delamination of the card. For banded tickets, the glue must be of sufficient strength and quality to prevent the separation of the band from the ticket.
6. The following minimum information shall be printed on a card:
a. Break open pull-tab [ , and ]
instant bingo cards [ , and event game cards ]:
(1) Name of the manufacturer or its distinctive logo;
(2) Name of the game;
(3) Manufacturer's form number;
(4) Price per individual card or bundle;
(5) Unique minimum five-digit game serial number printed on the game information side of the card; and
(6) Number of winners and respective winning number or symbols and specific prize amounts unless accompanied by a manufacturer's preprinted publicly posted flare with that information.
b. Banded pull-tabs:
(1) Manufacturer;
(2) Serial number;
(3) Price per individual card or bundle unless accompanied by a manufacturer's preprinted publicly posted flare with that information; and
(4) Number of winners and respective winning numbers or symbols and prize amounts or a manufacturer's preprinted publicly posted flare giving that information.
7. All seal card games sold to organizations shall contain the sign-up sheet, seals, and cards packaged together in each deal.
C. Raffle tickets used independent of a bingo game must conform to the following construction standards:
1. Each ticket shall have a detachable section and shall be consecutively numbered.
2. Each section of a ticket shall bear the same number. The section retained by the organization shall provide space for the purchaser's name, complete address, and telephone number.
3. The following information shall be printed on the purchaser's section of each ticket:
a. Dates and times of drawings;
b. Locations of the drawings;
c. Name of the charitable organization conducting the raffle;
d. Price of the ticket;
e. Charitable gaming permit number; and
f. Prizes.
Exceptions to these construction standards are allowed only with prior written approval from the department.
D. Electronic bingo.
1. The department, at its discretion, may require additional testing of electronic bingo devices at any time. Such additional testing shall be at the manufacturer's expense and shall be a condition of the continued use of such device.
2. All electronic bingo devices shall use proprietary
software and hardware or commonly available software and [ computers
hardware ] and shall be enabled for play on the premises where the
game is to be played.
3. Each electronic bingo device shall have a unique
identification number [ permanently coded securely
encoded ] into the software of [ such the ]
device. [ The unique identification number shall not be
alterable by anyone other than the manufacturer of the electronic bingo device. ]
Manufacturers of electronic bingo devices shall employ sufficient security
safeguards in designing and manufacturing the devices such that it may be
verified that all proprietary software components are authentic copies of the
approved software components and all functioning components of the device are
operating with identical copies of approved software programs. The [ electronic
bingo ] device must also have sufficient security safeguards so
that any restrictions or requirements authorized by the department or any
approved proprietary software are protected from alteration by unauthorized
personnel. The [ electronic bingo ] device shall not
contain hard-coded or unchangeable passwords. Security measures that may be
employed to comply with these provisions include, but are not limited to, the
use of dongles, digital signature comparison hardware and software, secure boot
loaders, encryption, and key and callback password systems.
[ 4. A firewall or equivalent hardware device configured to block all inbound and outbound traffic that has not been expressly permitted and is not required for the continued use of the electronic bingo system must exist between the electronic bingo system and any external point of access. ]
[ 4. 5. ] Electronic bingo
devices shall not allow a player to create a card by the input of specific
numbers on each card. Manufacturers shall ensure that an electronic bingo
device does not allow for the play of any bingo card faces other than those
verifiably purchased by the patron.
[ 5. 6. ] Electronic bingo
devices shall not accept cash, currency, or tokens for play.
[ 6. 7. ] Electronic bingo
devices shall require the manual entry of numbers as they are called, the
manual verification of numbers as they have been electronically transmitted to
the device, or the full automatic daubing of numbers as each number is called.
During the play of a bingo game, the transmission of data to electronic bingo
devices shall be limited to one-way communication to the [ electronic
bingo ] device and shall consist only of [ the
number called publicly available information regarding the current
game ].
[ 7. 8. ] A device shall not
allow the play of more than 54 cards per device per game.
[ 8. 9. ] The electronic
bingo device system shall record a sequential transaction number or audit
tracking number for each transaction. The system shall not allow the manual
resetting or changing of this number.
[ 9. 10. ] The system shall
produce a receipt [ and a transaction log for each electronic
bingo device rented or otherwise provided ] containing the
following:
a. Organization name;
b. Location of bingo game;
[ c. Date and time of the transaction; ]
[ c. d. ] Sequential
transaction or receipt number;
[ d. Number of electronic bingo cards loaded;
e. Cost of electronic bingo cards loaded; and
f. Date and time of each transaction.
e. Description of each electronic bingo product loaded. The description must include the quantity of bingo card faces that appear on each electronic bingo product (i.e., 9 Jackpot) and the sales price of each electronic bingo product;
f. Quantity of each electronic bingo product loaded; and
g. Total sales price of the transaction. ]
[ 10. 11. ] The system shall
maintain and make available on demand a summary report for each session that
includes the following:
a. Organization name;
b. [ Physical location Location ]
of bingo game;
c. Date and time of each transaction;
d. Sequential transaction or receipt number [ of each transaction ];
[ e. Number of electronic bingo cards loaded;
f. Cost of electronic bingo cards loaded;
e. Description of each electronic bingo product loaded each session. The description must include the quantity of bingo card faces that appear on each electronic bingo product and the sales price of each electronic bingo product;
f. Quantity of each electronic bingo product loaded;
g. Total sales price of each electronic bingo product loaded; and
h. Total sales price for each transaction; ]
[ g. i. ] A transaction
history correlating [ the sequential transaction number of ]
each electronic [ bingo device ] sale to the
[ device unique ] identification number of
the [ electronic bingo ] device on which the sale was
played;
[ h. j. ] Sufficient
information to identify voids [ and returns ], including
the date and time of each voided transaction [ and return, the
sequential transaction number, and the cost of voided transactions and returns ];
[ and ]
[ i. Sufficient information to identify device
returns; and
j. k. ] Total gross receipts for
each session.
[ 11. 12 ] Each [ electronic
bingo ] device shall be programmed to automatically erase all
stored electronic [ bingo ] cards at the end of the
last game of a session, within a set time from their rental to a player, or by
some other clearance method approved by the department.
[ 12. 13. ] All [ electronic
bingo ] devices shall be reloaded with another set of [ electronic
bingo ] cards at the beginning of each session if the devices are
to be reused at the same location.
E. In instances where a defect in packaging or in the construction of deals or electronic [ bingo ] devices is discovered by or reported to the department, the department shall notify the manufacturer of the deals or [ electronic bingo ] devices containing the alleged defect. Should the department, in consultation with the manufacturer, determine that a defect exists, and should the department determine the defect affects game security or otherwise threatens public confidence in the game, the department may, with respect to deals or electronic [ bingo ] devices for use still located within the Commonwealth of Virginia, require the supplier to:
1. Recall the deals or electronic [ bingo ] devices affected that have not been sold or otherwise provided; or
2. Issue a total recall of all affected deals or electronic [ bingo ] devices.
[ F. No instant bingo, pull-tab, or seal card
dispenser may be sold, leased, or otherwise furnished to any person or
organization in the Commonwealth of Virginia or used in the conduct of
charitable gaming until an identical sample device containing identical
proprietary software, if applicable, has been certified by a testing facility
that has been formally recognized by the department as a testing facility that
upholds the standards of integrity established by the department. The cost of
testing shall be borne by the manufacturer of such equipment. In addition,
suppliers and manufacturers of such dispensers shall comply with the
requirements of The Gambling Devices Act of 1962 (15 USC §§ 1171-1178).
G. All instant bingo, pull-tab, or seal card dispensing
devices must meet the following standards F. No supplier shall
knowingly sell or otherwise provide to an organization and no organization
shall knowingly use an instant bingo, pull-tab, or seal card dispenser unless
the dispenser conforms to the following standards ]:
1. Each dispenser shall be manufactured in a manner that ensures a pull-tab ticket is dispensed only after insertion of United States currency or coinage into the dispenser. Such ticket and any change due shall be the only items dispensed from the machine.
2. Each dispenser shall be manufactured in a manner that
ensures the [ device dispenser ] neither
displays nor has the capability of displaying or otherwise identifying an
instant bingo, pull-tab, or seal card winning or nonwinning ticket.
3. Each dispenser shall be manufactured in such a manner that any visual animation does not simulate or display rolling or spinning reels or produce audible music or enhanced sound effects.
4. Each dispenser shall be equipped with separate locks for the instant bingo, pull-tab, or seal card supply modules and money boxes. Locks shall be configured so that no one key will operate both the supply modules and money boxes.
[ H. G. ] The department
may require [ additional ] testing of a
dispensing device at any time to ensure that it meets construction standards
and allows for fair play. Such tests shall be conducted at the cost of the
manufacturer of such [ dispensing ] devices.
[ I. H. ] The face value of
[ cards the instant bingo, pull-tab, or seal cards ]
being dispensed shall match the amount deposited in the currency/coin
acceptor less change provided.
[ I. A dispensing device shall only dispense instant bingo, pull-tab, or seal cards that conform to the construction standards established in subsection B of this section and the randomization standards established in 11VAC15-40-140.
J. Suppliers and manufacturers of instant bingo, pull-tab, or seal card dispensers shall comply with the requirements of the Gambling Devices Act of 1962 (15 USC §§ 1171-1178). ]
11VAC15-40-140. Instant bingo, pull-tabs, [ or ]
seal cards [ , or event game cards ] randomization
standards.
All instant bingo, pull-tabs, [ or ] seal
cards [ , or event game cards ] shall meet the
following randomization standards:
1. Deals shall be assembled so that winning tickets are placed throughout each deal.
2. Deals shall be assembled and packaged in a manner that prevents isolation of winning cards due to variations in printing, graphics, colors, sizes, appearances of cut edges, or other markings of cards.
3. Winning cards shall be distributed and mixed among all other cards in a deal so as to eliminate any pattern between deals or portions of deals from which the location or approximate location of any winning card may be determined.
[ 11VAC15-40-143. Electronic random number generator standards.
A. Electronic random number generators shall not be sold, leased, or otherwise furnished to an organization for use in the conduct of bingo until an identical sample device containing identical proprietary software has been certified by a testing facility that has been formally recognized by the department as a testing facility that upholds the standards of integrity established by the department. The cost of testing shall be borne by the manufacturer of such equipment.
B. An electronic random number generator used in the conduct of bingo shall produce output that is statistically random.
1. Numbers produced by an electronic random number generator used in the conduct of bingo shall be statistically random individually and in the permutations and combinations used in the application under the rules of the game.
2. Numbers produced by an electronic random number generator used in the conduct of bingo shall pass the statistical tests for randomness to a 99% confidence level. Statistical tests for randomness may include:
a. Chi-square test;
b. Equi-distribution (frequency) test;
c. Gap test;
d. Poker test;
e. Coupon collector's test;
f. Permutation test;
g. Run test (patterns of occurrences shall not be recurrent);
h. Spectral test;
i. Serial correlation test potency and degree of serial correlation (outcomes shall be independent from the previous game); and
j. Test on subsequences.
C. An electronic random number generator used in the conduct of bingo shall produce output that is unpredictable.
1. It shall not be feasible to predict future outputs of a random number generator even if the algorithm and the past sequence of outputs are known.
2. Unpredictability shall be ensured by reseeding or by continuously cycling the random number generator and by a sufficient number or random number generator states for the applications supported.
3. Reseeding may be used where the reseeding input is at least as statistically random as, and independent of, the output of the random number generator being reseeded.
D. An electronic random number generator used in the conduct of bingo shall produce output that is nonrepeating. A random number generator shall not be initialized to reproduce the same output stream that it has produced before, nor shall any two instances of a random number generator produce the same stream as each other.
E. Software that calls an electronic random number generator used in the conduct of bingo to derive game outcome events shall immediately use the output returned in accordance with the game rules.
F. The outputs of an electronic random number generator used in the conduct of bingo shall not be arbitrarily discarded or selected.
G. Where a sequence of outputs is required, the whole of the sequence in the order generated shall be used in accordance with the game rules.
H. An electronic random number generator used in the conduct of bingo that provides output scaled to given ranges shall:
1. Be independent and uniform over the range;
2. Provide numbers scaled to the ranges required by game rules, and notwithstanding the requirements of subdivision 3 of this subsection, may discard numbers that do not map uniformly onto the required range, but shall use the first number in sequence that does map correctly to the range; and
3. Be capable of producing every possible outcome of a game according to its rules, and use an unbiased algorithm. A scaling algorithm is considered to be unbiased if the measured bias is no greater than 1 in 100 million.
I. An electronic random number generator that an organization is using to conduct bingo prior to November 7, 2012, is not required to be certified.
Part IV
Electronic Games of Chance Systems
Article 1
Manufacturers
11VAC15-40-147. Manufacturers of electronic games of chance systems: application, qualifications, suspension, revocation or refusal to renew permit, maintenance, and production of records.
A. As used in this section, "manufacturer" means a person or entity that assembles from raw materials or subparts an electronic games of chance system.
B. Prior to providing any electronic games of chance system, a manufacturer shall submit an application on a form prescribed by the department and receive a permit. A $1,000 application fee payable to the Treasurer of Virginia is required. In addition, a manufacturer must be authorized to conduct business in the Commonwealth of Virginia, which may include, but not be limited to, registration with the State Corporation Commission, the Department of Taxation, and the Virginia Employment Commission. The actual cost of background investigations for a permit may be billed by the department to an applicant.
C. The department may refuse to issue a permit or may suspend or revoke a permit if an officer, director, employee, agent, or owner:
1. Is operating without a valid license, permit, or certificate as a supplier or manufacturer in any state in the United States;
2. Fails or refuses to recall a product as directed by the department;
3. Conducts business with unauthorized entities or is not authorized to conduct business in the Commonwealth of Virginia;
4. Has been convicted of or pleaded nolo contendere to any crime as specified by § 18.2-340.34 B of the Code of Virginia; has had any license, permit, certificate, or other authority related to activities defined as charitable gaming in the Commonwealth suspended or revoked in the Commonwealth or in any other jurisdiction; has failed to file or has been delinquent in excess of one year in the filing of any tax returns or the payment of any taxes due the Commonwealth; or has failed to establish a registered office or registered agent in the Commonwealth if so required by § 13.1-634 or 13.1-763 of the Code of Virginia. As this provision relates to employees or agents, it shall only apply to individuals involved in sales to or solicitations of customers in the Commonwealth of Virginia;
5. Fails to notify the department within 20 days of the occurrence, knowledge, or receipt of the filing of any administrative or legal action relating to charitable gaming or the distribution of electronic games of chance systems involving or concerning the manufacturer, any officers or directors, employees, agent, or owner during the term of its permit;
6. Fails to provide to the department upon request a current Letter for Company Registration on file with the U.S. Department of Justice - Gambling Devices Registration Unit, if required in accordance with the Gambling Devices Act of 1962 (15 USC §§ 1171-1178) for any device that it distributes in the Commonwealth of Virginia; or
7. Has been engaged in conduct that would compromise the department's objective of maintaining the highest level of integrity in charitable gaming.
D. A manufacturer shall not distribute electronic games of chance systems for use by anyone in the Commonwealth of Virginia other than to a permitted charitable gaming organization or a permitted supplier. However, a manufacturer may:
1. Distribute an electronic games of chance system to an organization that expects to gross the amount set forth in § 18.2-340.23 of the Code of Virginia or less in any 12-month period, providing that the amount of such purchase would not be reasonably expected to produce more than the amount set forth in § 18.2-340.23 of the Code of Virginia in gross sales. For each such organization, the manufacturer shall maintain the name, address, and telephone number. The manufacturer shall also obtain a written and signed statement from an officer or game manager of such organization confirming that gross receipts are expected to be the amount set forth in § 18.2-340.23 of the Code of Virginia or less. Such statement shall be dated and kept on file for a minimum of three years from the close of a fiscal year.
2. Distribute electronic games of chance systems to an organization for use only upon the premises owned or exclusively leased by the organization and at such times as the portion of the premises in which electronic pull-tabs are sold is open only to members and their guests as authorized by § 18.2-340.26:1 of the Code of Virginia. Each such distribution shall be accounted for separately and the accompanying invoice shall be clearly marked: "For Use in Social Quarters Only."
All such distributions shall be documented pursuant to subsection H of this section and reported to the department pursuant to subsection J of this section.
E. No manufacturer of electronic games of chance systems, the manufacturer’s agent, or the manufacturer’s employee may be involved in the management, operation, or conduct of charitable gaming in the Commonwealth of Virginia. No member of a manufacturer’s immediate family or person residing in the same household as a manufacturer may be involved in the management, operation, or conduct of charitable gaming of any customer of the manufacturer in the Commonwealth of Virginia. No manufacturer of electronic games of chance systems, the manufacturer’s agent, or the manufacturer’s employee may participate in any charitable gaming of any customer of the manufacturer in the Commonwealth of Virginia. For the purposes of this regulation, servicing of electronic games of chance systems shall not be considered conduct or participation.
F. The department shall conduct a background investigation prior to the issuance of a permit to any manufacturer. The investigation may include, but shall not be limited to, the following:
1. A search of criminal history records on all officers, directors, and owners; and
2. Verification of current compliance with Commonwealth of Virginia tax laws.
If the officers, directors, or owners are domiciled outside of the Commonwealth of Virginia, or have resided in the Commonwealth of Virginia for fewer than five years, a criminal history search conducted by the appropriate authority in any state in which they have resided during the previous five years shall be provided by the applicant.
G. Appropriate information and authorizations shall be provided to the department to verify information cited in subsection F of this section.
H. Manufacturers shall document each distribution an electronic games of chance system to any person for use in the Commonwealth of Virginia on an invoice, which reflects the following:
1. Name, address, and OCG number of the organization or supplier;
2. Date of sale or rental and location where the electronic games of chance system is shipped or delivered, if different from the billing address;
3. Name, form number, and serial number of each deal of electronic pull-tabs;
4. Quantity of deals sold, the cost per deal, the selling price per card, the cash take-in per deal, and the cash payout per deal;
5. Serial number of each electronic pull-tab device, a description of the physical attributes of the electronic pull-tab device, the quantity of electronic pull-tab devices sold or rented, and the physical address to which each electronic pull-tab device is shipped or delivered; and
6. Serial number and description of any other equipment sold or rented that is used to facilitate the distribution, play, and redemption of electronic pull-tabs and the physical address to which the equipment is shipped or delivered.
I. Manufacturers shall ensure that two copies of the detailed invoice are provided to the customer for each distribution of electronic games of chance systems.
J. Each manufacturer shall provide a report to the department by March 1 of each year on distribution of electronic games of chance systems for the fiscal year ending December 31 of the previous year to each organization and permitted supplier in the Commonwealth of Virginia. This report shall be provided to the department via a department-approved electronic medium. The report shall include the name and address of each organization and permitted supplier and the following information for each sale or transaction:
1. Deals of electronic pull-tabs including purchase price, deal name, deal form number, quantity of electronic pull-tabs in deal, electronic pull-tab price, cash take-in per deal, cash payout per deal, and quantity of deals; and
2. Equipment used to facilitate the distribution, play, and redemption of electronic pull-tabs including purchase or rental price, description of equipment, quantity of units of each type of equipment, and the physical address to which the equipment is shipped or delivered.
K. A manufacturer, its agents and employees, members of a manufacturer’s immediate family, or persons residing in a manufacturer’s household shall not make any loan directly or indirectly to any organization or officer, director, game manager, or entity involved in the management, operation, or conduct of charitable gaming of the manufacturer’s customer located in the Commonwealth of Virginia.
L. A manufacturer, its agent, or its employee shall not directly or indirectly provide a rebate, discount, or refund to any person other than an organization that purchases or leases an electronic games of chance system from the manufacturer. All such transactions shall be recorded on the manufacturer's account books.
M. A written agreement specifying the terms of lease or rental shall be required for any equipment used to distribute, play, or redeem electronic pull-tabs provided to an organization or permitted supplier. ]
[ Part IV ]
Electronic Games of Chance Systems
Article [ 1 2 ]
General Requirements
11VAC15-40-150. Approval of distributed pull-tab systems, validation systems, point-of-sale stations, and redemption terminals [ ; approval of game themes and sounds ].
A. The department shall set manufacturing and testing criteria for all distributed pull-tab systems, validation systems, point-of-sale stations, redemption terminals, and other equipment used in the conduct of charitable gaming. A distributed pull-tab system, validation system, point-of-sale station, redemption terminal, or other equipment shall not be sold, leased, or otherwise furnished to any person in the Commonwealth of Virginia for use in the conduct of charitable gaming until an identical sample system or equipment containing identical software has been certified by a testing facility that has been formally recognized by the department as a testing facility that upholds the standards of integrity established by the department. The testing facility must certify that the distributed pull-tab system and associated hardware and software conform, at a minimum, to the requirements set forth in this chapter. Once the testing facility reports the test results to the department, the department will either approve or disapprove the distributed pull-tab system or system components and inform the manufacturer of the results within 10 business days. If any such system or equipment does not meet the department's criteria, it shall be recalled and shall not be distributed in the Commonwealth of Virginia. The cost of testing shall be borne by the manufacturer of such equipment.
B. No supplier [ or manufacturer ] shall knowingly sell or otherwise provide to an organization and no organization shall knowingly use a distributed pull-tab system, validation system, point-of-sale station, redemption terminal, or other equipment used to conduct charitable gaming unless it conforms to the requirements set forth in this regulation.
C. If a defect in a distributed pull-tab system, validation system, point-of-sale station, redemption terminal, or other equipment used to conduct charitable gaming is discovered by or reported to the department, the department shall notify the manufacturer of the system or equipment containing the alleged defect. Should the department, in consultation with the manufacturer, determine that a defect exists and should the department determine the defect affects game security or otherwise threatens public confidence in the game, the department may, with respect to any distributed pull-tab system, validation system, point of sale station, redemption terminal, or other equipment used to conduct charitable gaming still located within the Commonwealth of Virginia, require the supplier [ or manufacturer ] to issue a recall of all affected distributed pull-tab systems, validation systems, point-of-sale stations, redemption terminals, or other equipment.
[ D. All game themes, sounds, and music shall be approved by the department prior to being available for play on an electronic pull-tab device in the Commonwealth of Virginia. ]
Article [ 2 3 ]
System Requirements
11VAC15-40-160. Distributed pull-tab system.
A distributed pull-tab system shall be dedicated primarily
to electronic accounting, reporting, and the presentation, randomization, and
transmission of electronic [ game cards pull-tabs ]
to the [ player electronic pull-tab ] devices.
It shall also be capable of generating the data necessary to provide the
reports required within this article or otherwise specified by the department.
11VAC15-40-170. Dispensing of electronic [ game
cards pull-tabs ].
A distributed pull-tab system shall dispense, upon
request, an electronic [ game card or cards pull-tab ].
All games must be played without replacement, drawing from a single finite game
set.
11VAC15-40-180. Game set requirements.
Each game set shall meet the following minimum requirements:
1. Each game set shall be made up of a finite number of
electronic [ game cards pull-tabs ];
2. The game set shall consist of a maximum of 25,000 electronic
[ game cards pull-tabs ];
3. All electronic [ game cards
pull-tabs ] in a particular game set shall be of the same purchase
price;
4. The maximum win amount awarded per any one electronic
[ game cards pull-tab ] shall not exceed the
value set forth for pull-tabs by § 18.2-340.33 of the Code of Virginia;
5. Each game set shall be assigned a unique serial number;
[ and ]
6. After randomization, game sets may be broken into
subsets of equal size. If game subsets are used, they shall each be assigned a
unique serial number and be traceable to a parent game set [ .;
and
7. Game sets shall not be commingled. ]
11VAC15-40-190. Game set definition.
If the system has the capability to create a game set from a predefined set of criteria, the criteria must contain the following information:
1. Game ID;
2. Game set version;
3. Manufacturer;
4. Game name;
5. Paytable ID;
6. Purchase price per electronic [ game card
pull-tab ];
7. Subset size;
8. Total number of subsets; and
9. Prize values with an associated index and frequency.
11VAC15-40-200. Data required to be available for each game set.
A. The following data shall be available prior to the opening of a game set for distribution and shall be maintained and be viewable both electronically and, if requested, by printed report, upon demand:
1. A unique serial number identifying each game set and/or subset;
2. A description of the game set sufficient to categorize the game set or subset relative to other game sets;
3. The total number of electronic [ game
cards pull-tabs ] in the game set;
4. The number of game subsets to be created from the game
set and the number of electronic [ game cards
pull-tabs ] in each subset when applicable;
5. The payout percentage of the entire game set;
6. The purchase price per electronic [ game
cards pull-tab ] assigned to the game set; and
7. Prize values with an associated index and frequency.
B. The following data shall be available subsequent to the completion of a game set and shall be maintained and viewable both electronically and, if requested, by printed report, upon demand:
1. A unique serial number identifying each game set and/or subset;
2. Description of the game set sufficient to categorize the game set relative to other game sets;
3. The total number of electronic [ game
cards pull-tabs ] unsold;
4. The total number of electronic [ game
cards pull-tabs ] purchased;
5. The time and date that the game set and/or each game subset became available for play;
6. The time and date that the game set and/or each game subset was completed or removed from play;
7. Location where game set and/or subset was played;
8. The final payout percentage of the game set when removed from play; and
9. The purchase price per electronic [ game
cards pull-tab ] assigned to the game set.
C. In order to provide maximum game integrity, no audit or other determination of the status of any game set or any subset, including, but not limited to, a determination of the prizes won or prizes remaining to be won, shall be conducted by anyone while a game set or subset is in play without causing termination of the entire game set or subset. Only upon game set termination shall the details of the associated game set and subsets be revealed to the individual or individuals performing the audit.
D. Once terminated, a game set shall not be able to be reopened.
11VAC15-40-210. Security requirements.
A. A distributed pull-tab system computer must be in a locked, secure enclosure with key controls in place.
B. A distributed pull-tab system shall provide a means for
terminating the game set if information about electronic [ game
cards pull-tabs ] in an open game set has been accessed
or at the discretion of the department. In such cases, traceability of
unauthorized access including time and date, users involved, and any other
relevant information shall be available.
C. A distributed pull-tab system shall not permit the
alteration of any accounting or significant event information that was
communicated from the [ player electronic pull-tab ]
device without supervised access controls. In the event financial data is
changed, an automated audit log must be capable of being produced to document
the following:
1. Data element altered;
2. Data element value prior to alteration;
3. Data element value after alteration;
4. Time and date of alteration; and
5. Personnel that performed alteration.
D. A distributed pull-tab system must provide password security or other secure means of ensuring data integrity and enforcing user permissions for all system components through the following means:
1. All programs and data files must only be accessible via the entry of a password that will be known only to authorized personnel;
2. The distributed pull-tab system must have multiple security access levels to control and restrict different classes;
3. The distributed pull-tab system access accounts must be unique when assigned to the authorized personnel and shared accounts amongst authorized personnel must not be allowed;
4. The storage of passwords and PINs must be in an encrypted, nonreversible form; and
5. A program or report must be available that will list all registered users on the distributed pull-tab system including their privilege level.
E. All components of a distributed pull-tab system [ that allow access to users, other than end-users for game play, ] must have a password sign-on with two-level codes comprising the personal identification code and a personal password.
1. The personal identification code must have a length of at least six ASCII characters; and
2. The personal password must have a minimum length of six alphanumeric characters, which should include at least one nonalphabetic character.
F. A distributed pull-tab system must have the capability to control potential data corruption that can be created by multiple simultaneous log-ons by system management personnel.
1. A distributed pull-tab system shall specify which of the access levels allow for multiple simultaneous sign-ons by different users and which of the access levels do not allow for multiple sign-ons, and, if multiple sign-ons are possible, what restrictions, if any, exist; or
2. If a distributed pull-tab system does not provide adequate control, a comprehensive procedural control document must be drafted for the department's review and approval.
G. Distributed pull-tab system software components/modules shall be verifiable by a secure means at the system level. A distributed pull-tab system shall have the ability to allow for an independent integrity check of the components/modules from an outside source and is required for all control programs that may affect the integrity of the distributed pull-tab system. This must be accomplished by being authenticated by a third-party device, which may be embedded within the distributed pull-tab system software or having an interface or procedure for a third-party application to authenticate the component. This integrity check will provide a means for field verification of the distributed pull-tab system components.
H. A distributed pull-tab system may be used to configure
and perform security checks on [ player electronic
pull-tab ] devices, provided such functions do not affect the
security, integrity, or outcome of any game and meets the requirements set
forth in this regulation regarding program storage devices.
11VAC15-40-220. Backup and recovery.
A. A distributed pull-tab system computer shall have a separate physical medium for securely storing game sets or subsets on the computer, which shall be mirrored in real time by a backup medium.
B. All data required to be available or reported by this chapter must be retained for a period of not less than three years [ from the close of the fiscal year ].
C. All storage of critical data shall utilize error checking and be stored on a nonvolatile physical medium.
D. The database shall be stored on redundant media so that no single failure of any portion of the system would result in the loss or corruption of data.
E. In the event of a catastrophic failure when the distributed pull-tab system cannot be restarted in any other way, it shall be possible to reload the distributed pull-tab system from the last viable backup point and fully recover the contents of that backup, to consist of at least the following information:
1. All significant events;
2. All accounting information;
3. Auditing information, including all open game sets and the summary of completed game sets; and
4. Employee files with access levels.
11VAC15-40-230. Electronic accounting and reporting.
A. One or more electronic accounting systems shall be required to perform reporting and other functions in support of distributed pull-tab system. The electronic accounting system shall not interfere with the outcome of any gaming function.
B. The following reporting capabilities must be provided by the electronic accounting system:
1. Electronic [ game card
pull-tab ] game set report – game sets in play. An electronic
[ game card pull-tab ] game set report must
be available on demand for each game set currently in play. Game cards,
outcomes, or prizes must not be revealed. The report must contain the following
information:
a. A unique serial number identifying each game set and/or subsets;
b. A description of the game set sufficient to categorize the game set or subset relative to other game sets;
c. The total number of electronic [ game
card pull-tabs ] in the game set;
d. The number of game subsets to be created from the game
set and the number of electronic [ game cards
pull-tabs ] in each subset when applicable;
e. The theoretical payout percentage of the entire game set;
f. The purchase price per electronic [ game
card pull-tab ] assigned to the game set;
g. The time and date that the game set and/or each game subset became available for play; and
h. Location where the game set and/or subset is being played.
2. Electronic [ game card
pull-tab ] game set report – completed game set. An electronic
[ game card pull-tab ] game set report must
be available on demand, for each completed game set. The report must contain
the following information:
a. A unique serial number identifying each game set and/or subset;
b. Description of the game set sufficient to categorize the game set relative to other game sets;
c. The total number of electronic [ game
card pull-tabs ] unsold;
d. The total number of electronic [ game
card pull-tabs ] purchased;
e. The time and date that the game set and/or each game subset became available for play;
f. The time and date that the game set and/or each game subset was completed or removed from play;
g. Location where game set and/or subset was played;
h. The final payout percentage of the game set when removed from play; and
i. The purchase price per electronic [ game
card pull-tab ] assigned to the game set.
3. A report that shall indicate all prizes that exceed the
threshold that triggers additional procedures to be followed for the purpose of
compliance with federal tax reporting requirements. At a minimum, on a daily
and monthly basis, the report shall provide the following information per
[ player electronic pull-tab ] device:
a. The date and time won;
b. Location of prize award; and
c. Amount of each prize occurrence.
4. Liability report. A liability report shall provide a summary of the outstanding funds that carry from business day to business day. At a minimum, this report shall include:
a. Amount of prizes and/or vouchers that were awarded in dollars and cents, but have not yet been claimed that have not yet expired; and
b. Summary of all outstanding accounts.
[ 5. Master reconciliation report. A master
reconciliation report must be available on a per session basis, monthly basis,
and quarterly basis at a minimum. A master reconciliation report shall include
the following:
a. Total of all moneys used to purchase electronic game
cards;
b. Total of all prizes, in dollars and cents, awarded
from electronic game cards;
c. Total of all moneys inserted into a player device or
provided to a cashier for the purchase of electronic game cards; and
d. Total of all moneys removed from a player device. ]
C. A distributed pull-tab system shall be capable of providing an electronic file in a format specified by the department on a periodic basis to a location specified by the department. The data to be reported will contain, at a minimum, the following items per session:
1. Organization identification;
2. Session date;
3. Total cash in;
4. Total cash out;
5. Total cash played;
6. Total cash won;
7. For all game sets on the system in play or in inventory:
a. Serial number;
b. Description;
c. Ticket price;
d. Number of subsets if applicable;
e. Number of tickets or number of tickets per subset;
f. Theoretical return percentage; and
g. Date game set was opened for play, when applicable; and
8. For all game sets completed or closed since the previous reporting date:
a. Serial number;
b. Description;
c. Ticket price;
d. Number of subsets, if applicable;
e. Number of tickets or number of tickets per subset;
f. Theoretical return percentage;
g. Date game set was opened;
h. Date game set was closed;
i. Total tickets sold;
j. Total dollars in;
k. Total prizes paid; and
l. Actual return percentage.
11VAC15-40-240. Randomization.
A. As used in this section, unless the context requires a different meaning:
"Card position" means the first card dealt, second card dealt in sequential order.
"Number position" means the first number drawn in sequential order.
B. A distributed pull-tab system shall utilize randomizing
procedures in the creation of game sets for electronic [ game
cards pull-tabs ] or externally generated randomized
game sets that have been created using a method previously approved by the
department.
C. Any random number generation, shuffling, or randomization of outcomes used in connection with a distributed pull-tab system must be by use of a random number generation application that has successfully passed standard tests for randomness and unpredictability including but not limited to:
1. Each card position or number position satisfies the 99% confidence limit using the standard chi-squared analysis. "Chi-squared analysis" is the sum of the ratio of the square difference between the expected result and the observed result to the expected result.
2. Each card position or number position does not produce a significant statistic with regard to producing patterns of occurrences. Each card position or number position will be considered random if it meets the 99% confidence level with regard to the "run test" or any similar pattern testing statistic. The "run test" is a mathematical statistic that determines the existence of recurring patterns within a set of data.
3. Each card position or number position is independently chosen without regard to any other card or number drawn within that game play. This test is the "correlation test." Each pair of card positions or number positions is considered random if it meets the 99% confidence level using standard correlation analysis.
4. Each card position or number position is independently chosen without reference to the same card position or number position in the previous game. This test is the "serial correlation test." Each card position or number position is considered random if it meets the 99% confidence level using standard serial correlation analysis.
11VAC15-40-250. Communications and network requirements.
A. Where the distributed pull-tab system components are linked with one another in a network, communication protocols shall be used that ensure that erroneous data or signals will not adversely affect the operations of any such system components.
B. All data communication shall incorporate an error detection and correction scheme to ensure the data is transmitted and received accurately.
C. Connections between all components of the distributed pull-tab system shall only be through the use of secure communication protocol(s) that are designed to prevent unauthorized access or tampering, employing Advanced Encryption Standard (AES), or equivalent encryption.
[ D. A firewall or equivalent hardware device configured to block all inbound and outbound traffic that has not been expressly permitted and is not required for continued use of the distributed pull-tab system must exist between the distributed pull-tab system and any external point of access. ]
[ D. E. ] The minimum width
(size) for encryption keys is 112 bits for symmetric algorithms and 1024 bits
for public keys.
[ E. F. ] There must be a
secure method implemented for changing the current encryption key set. It is
not acceptable to only use the current key set to "encrypt" the next
set.
[ F. G. ] There must be a
secure method in place for the storage of any encryption keys. Encryption keys
must not be stored without being encrypted themselves.
[ G. H. ] If a wireless
network is used, wireless products used in conjunction with any gaming system
or system component must meet the following minimum standards:
1. Employ a security process that complies with the Federal Information Processing Standard 140-2 (FIPS 140-2); or
2. Employ an alternative method, as approved by the department.
11VAC15-40-260. Significant events.
The following significant events, if applicable, shall be
collected from the [ player electronic pull-tab ]
device or point of sale and communicated to the system for storage and a
report of the occurrence of the significant event must be made available upon
request:
1. Power resets or power failure.
2. Communication loss between [ a player
an electronic pull-tab ] device and any component of the
distributed pull-tab system.
3. [ Player Electronic pull-tab ]
device jackpot (any award in excess of the single win limit of the
[ player electronic pull-tab ] device).
4. Door openings (any external door that accesses a
critical area of the [ player electronic pull-tab ]
device).
5. Bill validator errors:
a. Stacker full (if supported); and
b. Bill jam.
6. Printer errors:
a. Printer empty; and
b. Printer disconnect or failure.
7. Corruption of the [ player
electronic pull-tab ] device RAM or program storage device.
8. Any other significant events as defined by the protocol employed by the distributed pull-tab system.
11VAC15-40-270. Validation system and redemption.
A distributed pull-tab system may utilize a voucher validation system to facilitate gaming transactions. The validation system may be entirely integrated into a distributed pull-tab system or exist as a separate entity.
[ 1. Payment by voucher printer as a method of
redeeming unused game plays and/or winnings on a player device is only
permissible when the device is linked to an approved validation system or
distributed pull-tab system that allows validation of the printed voucher. ]
[ a. 1. ] A distributed
pull-tab system may allow voucher out only; vouchers shall not be inserted,
scanned, or used in any way at the [ player
electronic pull-tab ] device for redemption.
[ b. 2. ] The validation
system must process voucher redemption correctly according to the secure
communication protocol implemented.
[ 2. 3. ] The algorithm or
method used by the validation system or distributed pull-tab system to generate
the voucher validation numbers must guarantee an insignificant percentage of
repetitive validation numbers.
[ 3. 4. ] The validation
system must retrieve the voucher information correctly based on the secure communication
protocol implemented and store the voucher information in a database. The
voucher record on the host system must contain, at a minimum, the following
voucher information:
a. Validation number;
b. Date and time the [ player
electronic pull-tab ] device printed the voucher;
c. Value of voucher in dollars and cents;
d. Status of voucher;
e. Date and time the voucher will expire;
f. Serial number of [ player
electronic pull-tab ] device; and
g. Location name or site identifier;
[ 4. 5. ] The validation
system or distributed pull-tab system must have the ability to identify the
following occurrences and notify the cashier when the following conditions
exist:
a. Voucher cannot be found on file;
b. Voucher has already been paid; or
c. Amount of voucher differs from amount on file (requirement may be met by display of voucher amount for confirmation by cashier during the redemption process).
[ 5. 6. ] If the connection
between the validation system and the distributed pull-tab system fails, an
alternate method or procedure of payment must be available and shall include
the ability to identify duplicate vouchers and prevent fraud by redeeming
vouchers that were previously issued by the [ player
electronic pull-tab ] device.
[ 6. 7. ] The following
reports related to vouchers shall be generated on demand:
a. Voucher Issuance Report shall be available from the
validation system that shows all vouchers generated by an electronic
[ game card pull-tab ] device; and
b. Voucher Redemption Report shall detail individual vouchers, the sum of the vouchers paid by the validation terminal or point of sale by session, and include the following information:
(1) The date and time of the transaction;
(2) The dollar value of the transaction;
(3) Validation number;
(4) A transaction number; and
(5) Point-of-sale identification number or name.
[ 7. 8. ] The validation
system database must be encrypted and password-protected and should possess a
nonalterable user audit trail to prevent unauthorized access.
[ 8. 9. ] The normal
operation of any device that holds voucher information shall not have any
options or method that may compromise voucher information. Any device that
holds voucher information in its memory shall not allow removal of the
information unless it has first transferred that information to the ticketing
database or other secured component or components of the validation system.
11VAC15-40-280. Point of sale; validation terminal.
A. A distributed pull-tab system may utilize a point-of-sale and/or validation terminal that is capable of facilitating the sale of the organization's pull tab outcomes or used for the redemption of credits from player accounts or vouchers. The point of sale may be entirely integrated into a distributed pull-tab system or exist as a separate entity.
B. Point-of-sale use is only permissible when the device is linked to an approved validation system or distributed pull-tab system.
C. If a distributed pull-tab system utilizes a point of sale, it shall be capable of printing a receipt for each sale, void, or redemption.
1. The receipt shall contain the following information:
a. Date and time of the transaction;
b. Dollar value of the transaction;
c. Validation number, if applicable;
d. Quantity of associated products, if applicable;
e. Transaction number;
f. Account number, if applicable; and
g. Point-of-sale identification number or name.
D. The following point-of-sale or validation terminal reports shall be generated on demand:
1. Sales Transaction History Report shall show all sales and voids by session and include the following information:
a. Date and time of the transaction;
b. Dollar value of the transaction;
c. Quantity of associated products;
d. Transaction number; and
e. Point of sale identification number or name;
2. Voucher Redemption Report shall detail individual voucher redemptions paid by the validation terminal or point of sale by session and include the following information:
a. Date and time of the transaction;
b. Dollar value of the transaction;
c. Validation number;
d. Transaction number; and
e. Point of sale identification number or name.
11VAC15-40-290. Location of equipment.
All equipment used to facilitate the distribution, play,
or redemption of electronic pull-tab [ or instant bingo ]
games must be physically located within the boundaries of the Commonwealth
of Virginia. This includes but is not limited to the distributed pull-tab
system, [ player electronic pull-tab ] devices,
redemption terminals, and point-of-sale stations.
Article [ 2 4 ]
[ Player Electronic Pull-tab ] Devices
11VAC15-40-300. [ Player
Electronic pull-tab ] device general requirements.
A. Each [ player electronic
pull-tab ] device shall bear a seal approved by the commissioner
and affixed by the department.
B. [ A player An electronic
pull-tab ] device shall not be capable of being used for the
purposes of engaging in any game prohibited by the department.
C. In addition to a video monitor or touch screen, each
[ player electronic pull-tab ] device may
have one or more of the following: a bill acceptor, printer, and
electromechanical buttons for activating the game and providing player input,
including a means for the player to make selections and choices in games.
D. For each [ player electronic
pull-tab ] device, there shall be located anywhere within the
distributed pull-tab system, nonvolatile memory or its equivalent. The memory
shall be maintained in a secure location for the purpose of storing and
preserving a set of critical data that has been error checked in accordance
with the critical memory requirements of this regulation.
E. [ A player An electronic
pull-tab ] device shall not have any switches, jumpers, wire posts,
or other means of manipulation that could affect the operation or outcome of a
game. The [ player electronic pull-tab ] device
may not have any functions or parameters adjustable through any separate video
display or input codes except for the adjustment of features that are wholly
cosmetic.
F. [ A player An electronic
pull-tab ] device shall not have any of the following attributes:
spinning or mechanical reels, pull handle, sounds [ other than
an audio effect to simulate the opening of a paper pull-tab or instant bingo
card or music solely intended to entice a player to play ],
flashing lights, tower light, top box, coin tray, ticket acceptance, hopper,
coin acceptor, enhanced animation, cabinet or payglass artwork, or any other
attribute identified by the department.
G. [ A player An electronic
pull-tab ] device shall be robust enough to withstand forced
illegal entry that would leave behind physical evidence of the attempted entry
or such entry that causes an error code that is displayed and transmitted to
the distributed pull-tab system. Any such entry attempt shall inhibit game play
until cleared, and shall not affect the subsequent play or any other play,
prize, or aspect of the game.
H. [ The Except as provided in
subsection I of this section, the ] number of [ player
electronic pull-tab ] devices, other than those [ player
electronic pull-tab ] devices that are handheld, present at any
[ premise premises ] at which charitable
gaming is conducted shall be limited to [ one device for every
50 permissible occupants under the maximum occupancy as determined pursuant to
the Uniform Statewide Building Code 10. Except as provided in
subsection I of this section the number of handheld electronic pull-tab devices
present at any premises at which charitable gaming is conducted shall be
limited to 50. ] The department shall determine whether [ a
player an electronic pull-tab ] device is handheld.
[ I. The number of electronic pull-tab devices used to facilitate the play of electronic pull-tabs sold, played, and redeemed at any premises pursuant to § 18.2-340.26:1 of the Code of Virginia shall be limited to five. ]
11VAC15-40-310. Cabinet wiring.
A. Proof of UL or equivalent certification shall be required for all submitted electronic devices.
B. [ A player An electronic
pull-tab ] device shall be designed so that power and data cables
into and out of the [ player electronic pull-tab ]
device can be routed so that the cables are not accessible to the general
public.
11VAC15-40-320. [ Player
Electronic pull-tab ] device identification.
[ A player An electronic pull-tab ]
device shall have a permanently affixed identification badge that cannot be
removed without leaving evidence of tampering. This badge shall be affixed to
the exterior of the [ player electronic pull-tab ]
device and shall include the following information:
1. Manufacturer name;
2. A unique serial number;
3. The [ player electronic
pull-tab ] device model number;
4. The date of manufacture; and
5. Any other information required by the department.
11VAC15-40-330. Doors; compartments.
A. If [ a player an electronic
pull-tab ] device possesses an external door that allows access to
the interior of the machine the following rules shall apply:
1. Doors and their associated hinges shall be capable of withstanding
determined illegal efforts to gain access to the inside of the [ player
electronic pull-tab ] device and shall leave evidence of tampering
if an illegal entry is made;
2. All external doors shall be locked and monitored by door access sensors that shall detect and report all external door openings by way of an audible alarm, on-screen display, or both;
3. The [ player electronic
pull-tab ] device shall cease play when any external door is
opened;
4. It shall not be possible to disable a door open sensor when the machine's door is closed without leaving evidence of tampering;
5. The sensor system shall register a door as being open when the door is moved from its fully closed and locked position; and
6. Door open conditions shall be recorded in an electronic log that includes a date/time stamp.
B. [ Player Electronic pull-tab ]
devices that contain control programs located within an accessible area
shall have a separate internal locked logic compartment, that shall be keyed
differently than the front door access lock. The logic compartment shall be a
locked cabinet area with its own locked door, that houses critical electronic
components that have the potential to significantly influence the operation of
the [ player electronic pull-tab ] device.
There may be more than one such logic area in [ a player
an electronic pull-tab ] device. Electronic component items that
are required to be housed in one or more logic areas are:
1. CPUs and other electronic components involved in the operation and calculation or display of game play;
2. Communication controller electronics and components
housing the communication program storage media or, the communication board for
the on-line system may reside outside the [ player
electronic pull-tab ] device; and
3. Logic compartment door open conditions shall be recorded in a log that includes a date/time stamp.
C. [ Player Electronic pull-tab ]
devices that do not contain a door shall have adequate security for any
panels or entry points that allow access to the interior of the device.
11VAC15-40-340. Memory clear.
A. Following the initiation of a memory reset procedure
utilizing a certified reset method, the program shall execute a routine that
initializes the entire contents of memory to the default state. For [ player
electronic pull-tab ] devices that allow for partial memory clears,
the methodology in doing so must be accurate and the game application must
validate the uncleared portions of memory. The [ player
electronic pull-tab ] device display after a memory reset shall not
be the top award.
B. It shall not be possible to change a configuration setting that causes an alteration or obstruction to the electronic accounting meters without a memory clear.
11VAC15-40-350. Critical memory.
A. Critical memory shall be used to store all data that is
considered vital to the continued operation of the [ player
electronic pull-tab ] device. Critical memory storage shall be
maintained by a methodology that enables errors to be identified and corrected
in most circumstances. This methodology may involve signatures, checksums,
partial checksums, multiple copies, timestamps, and/or use of validity codes.
This includes, but is not limited to:
1. All electronic meters required in [ 11VAC15-40-420
E 11VAC15-40-410 E ];
2. Current unused credits;
3. [ Player Electronic pull-tab ]
device or game configuration data;
4. Recall of all wagers and other information necessary to fully reconstruct the game outcome associated with the last 10 plays;
5. Software state, which is the last state the [ player
electronic pull-tab ] device software was in before interruption;
and
6. Error conditions that may have occurred on the
[ player electronic pull-tab ] device that
may include:
a. Memory error or control program error;
b. Low memory battery, for batteries external to the memory itself or low power source;
c. Program error or authentication mismatch; and
d. Power reset.
B. Comprehensive checks of critical memory shall be made continually to test for possible corruption. In addition, all critical memory:
1. Shall have the ability to retain data for a minimum of
180 days after power is discontinued from the [ player
electronic pull-tab ] device. If the method used is an off-chip
battery source, it shall recharge itself to its full potential in a maximum of
24 hours. The shelf life shall be at least five years. Memory that uses an
off-chip back-up power source to retain its contents when the main power is
switched off shall have a detection system that will provide a method for software
to interpret and act upon a low battery condition;
2. Shall only be cleared by a department certified memory clear method; and
3. Shall result in an error if the control program detects an unrecoverable memory error.
11VAC15-40-360. Program storage devices.
A. All program storage devices (writable/nonwritable), including Erasable Programmable Read Only Memory (EPROM), DVD, CD-ROM, compact flash, and any other type of program storage device shall be clearly marked with sufficient information to identify the software and revision level of the information stored in the devices.
B. Program storage devices shall meet the following requirements:
1. Program storage, including CD-ROM, shall meet the following rules:
a. The control program shall authenticate all critical
files by employing a hashing algorithm that produces a "message
digest" output of at least 128 bits at minimum, as certified by the
recognized independent test laboratory and agreed upon by the department. Any
message digest shall be stored on a read-only memory device within the
[ player electronic pull-tab ] device. Any
message digest that resides on any other medium shall be encrypted, using a
public/private key algorithm with a minimum of a 512 bit key, or an equivalent
encryption algorithm with similar security certified by the independent test
laboratory and agreed upon by the department.
b. The [ player electronic
pull-tab ] device shall authenticate all critical files against the
stored message digests. In the event of a failed authentication, the
[ player electronic pull-tab ] device should
immediately enter an error condition with the appropriate indication such as an
audible signal, on-screen display, or both. This error shall require operator
intervention to clear. The [ player electronic
pull-tab ] device shall display specific error information and
shall not clear until the file authenticates properly and/or the [ player
electronic pull-tab ] device's memory is cleared, the game is
restarted, and all files authenticate correctly.
2. CD-ROM specific based program storage shall:
a. Not be a rewriteable disk; and
b. The "write session" shall be closed to prevent any further writing to the storage device.
C. [ Player Electronic pull-tab ]
devices where the control program is capable of being erased and
reprogrammed without being removed from the [ player
electronic pull-tab ] device, or other equipment or related
peripheral devices shall meet the following requirements:
1. Reprogrammable program storage shall only write to alterable storage media containing data, files, and programs that are not critical to the basic operation of the game.
2. Notwithstanding the foregoing, data may be written to media containing critical data, files, and programs provided that:
a. A log of all information that is added, deleted, and modified be stored on the media;
b. The control program verifies the validity of all data, files, and programs that reside on the media using the methods required herein;
c. The [ player electronic
pull-tab ] device's program contains appropriate security to
prevent unauthorized modifications; and
d. The [ player electronic
pull-tab ] device's program does not allow game play while the
media containing the critical data, files, and programs is being modified.
D. The control program shall ensure the integrity of all critical program components during the execution of said components and the first time the files are loaded for use even if only partially loaded. Space that is not critical to machine security (e.g., video or sound) is not required to be validated, although the department recommends a method be in place for the files to be tested for corruption. If any of the video or sound files contain payout amounts or other information needed by the player, the files are to be considered critical.
11VAC15-40-370. Touch screens.
Any touch screen must meet the following rules:
1. A touch screen shall be accurate once calibrated;
2. A touch screen shall be able to be recalibrated; and
3. A touch screen shall have no hidden or undocumented buttons or touch points anywhere on the touch screen, except as provided for by the game rules that affect game play.
11VAC15-40-380. Bill acceptors.
A. [ A player An electronic
pull-tab ] device may have a mechanism that accepts U.S. currency
and provides a method to enable the [ player
electronic pull-tab ] device software to interpret and act
appropriately upon a valid or invalid input.
B. An acceptance device shall be electronically based and be configured to ensure that it only accept valid bills and rejects all others in a highly accurate manner.
C. A bill input system shall be constructed in a manner that protects against vandalism, abuse, or fraudulent activity. In addition, a bill acceptance device shall only register credits when:
1. The bill has passed the point where it is accepted and stacked; and
2. The bill acceptor has sent the "irrevocably stacked" message to the machine.
D. A bill acceptor shall communicate to the [ player
electronic pull-tab ] device using a bidirectional protocol.
E. A bill acceptor shall be designed to prevent the use of cheating methods such as stringing, the insertion of foreign objects, and any other manipulation that may be deemed as a cheating technique.
F. If a bill acceptor is designed to be factory set only, it shall not be possible to access or conduct maintenance or adjustments to that bill acceptor in the field, other than:
1. The selection of bills and their limits;
2. Changing of certified EPROMs or downloading of certified software;
3. The method for adjustment of the tolerance level for
accepting bills of varying quality should not be accessible from the exterior
of the [ player electronic pull-tab ] device.
Adjustments of the tolerance level should only be allowed with adequate levels
of security in place. This can be accomplished through lock and key, physical
switch settings, or other accepted methods approved on a case-by-case basis;
4. Maintenance, adjustment, and repair per approved factory procedures; and
5. Options that set the direction or orientation of bill acceptance.
G. [ A player An electronic
pull-tab ] device equipped with a bill acceptor shall have the
capability of detecting and displaying an error condition for the following
events:
1. Stacker full (it is recommended that an explicit "stacker full" error message not be utilized since this may cause a security issue);
2. Bill jams;
3. Bill acceptor door open. If a bill acceptor door is a machine door, a door open signal is sufficient;
4. Stacker door open; and
5. Stacker removed.
H. [ A player An electronic
pull-tab ] device equipped with a bill acceptor shall maintain
sufficient electronic metering to be able to report the following:
1. Total monetary value of all bills accepted;
2. Total number of all bills accepted;
3. A breakdown of the bills accepted for each denomination; and
4. The value of the last five items accepted by the bill acceptor.
11VAC15-40-390. Payment by voucher printers.
A. If the [ player electronic
pull-tab ] device has a printer that is used to issue payment to
the player by issuing a printed voucher for any unused game plays and/or
winnings, the [ player electronic pull-tab ]
device shall meet the following rules:
1. The printer shall be located in a secure area of the
[ player electronic pull-tab ] device, but
shall not be located in the logic area or any cash storage area. The bill
acceptor stacker or logic areas containing critical electronic components shall
not be accessed when the printer paper is changed; [ and ]
[ 2. The player device, in which the printer is
housed, is linked to a voucher validation system, which records the voucher
information; and
3. 2. ] Data printed on a voucher
shall [ be provided to the voucher validation system that
records include ] the following information [ regarding
each voucher printed ]:
a. Value of unused game plays and/or winnings in U.S. currency, in numerical form;
b. Time the voucher was printed;
c. Date the voucher was printed;
d. Location name or site identifier;
e. Serial number of [ player
electronic pull-tab ] device;
f. Unique validation number or barcode [ if used in conjunction with a validation system ]; and
g. Expiration date and time.
B. If the [ player electronic
pull-tab ] device is capable of printing a duplicate voucher, the
duplicate voucher shall clearly state the word "DUPLICATE" on its
face.
C. The printer shall use printer paper containing security features such as a watermark as approved by the department.
D. A printer shall have mechanisms to allow the
[ player electronic pull-tab ] device to
interpret and act upon the following conditions that must disable the game, and
produce an error condition that requires attendant intervention to resume play:
1. Out of paper;
2. Printer jam or failure; and
3. Printer disconnect. The [ player
electronic pull-tab ] device may detect this error condition when
the game tries to print.
E. [ A player An electronic
pull-tab ] device that uses a voucher printer shall maintain a
minimum of the last 25 transactions in critical memory. All voucher
transactions shall be logged with a date and time stamp.
11VAC15-40-400. Payment by account.
A. Credit may be added to a player account via a cashier
or point of sale station. Credit may also be added by any supporting
[ player electronic pull-tab ] device through
credits won or bills.
B. Money may be removed from a player account either
through downloading of credits to the [ player
electronic pull-tab ] device or by cashing out at a cashier's or
point-of-sale station.
C. All monetary transactions between a supporting
[ player electronic pull-tab ] device and the
distributed pull-tab system must be secured by means of a card insertion into a
magnetic card reader and PIN entry or by other protected means.
Article [ 3 5 ]
Game Requirements
11VAC15-40-410. Game play requirements.
A. A player receives an electronic [ game
card pull-tab ] in return for consideration. A player
wins if the player's electronic [ game card pull-tab ]
contains a combination of symbols or numbers that was designated in advance
of the game as a winning combination. There may be multiple winning
combinations in each game. Electronic versions of instant bingo and pull-tabs,
as authorized by the department, shall only utilize devices that allow players
to play electronic [ game cards pull-tabs ].
[ A player An electronic pull-tab ] device
shall meet the following minimum requirements:
1. A player may purchase an opportunity to play an
electronic [ game card pull-tab ] by:
a. Insertion of U.S. currency (bills only);
b. Purchase made at a point of sale terminal; or
c. Withdrawing deposits available in a player account.
2. [ In addition to the The ]
available games, [ the flare, and ] rules
of play shall be displayed on the [ player electronic
pull-tab ] device's video screen. Rules of play shall include all
winning combinations.
3. Any number of game themes may be selectable for play on
any given [ player electronic pull-tab ] device.
Only one of the game themes shall be playable at any given time.
4. [ A player An electronic
pull-tab ] device shall be clearly labeled so as to inform the
public that no one under 18 years of age is allowed to play.
5. [ A player An electronic
pull-tab ] device shall not be capable of displaying any enticing
animation while in an idle state. [ A player An
electronic pull-tab ] device may use simple display elements or
screen savers to prevent monitor damage.
6. The results of the electronic [ game card
pull-tab ] shall be shown to the player using a video display. No
rolling, flashing, or spinning animations are permitted. No rotating reels
marked into horizontal segments by varying symbols are permitted. [ No
entertaining sound or music is permitted other than an audio effect to simulate
the opening of a paper pull-tab or instant bingo card. Any sounds present used
to simulate the opening of a paper pull-tab must not be played at a level
sufficient to disturb other players or patrons.
7. Any sound or music solely intended to entice a player to play is prohibited. Any sound or music emitted by an electronic pull-tab device must not be played at a level sufficient to disturb other players or patrons. ]
[ 7. 8. ] The [ player
electronic pull-tab ] device shall have one or more buttons,
electromechanical or touch screen, to facilitate the following functions:
a. Viewing of the game "help" screens;
b. Viewing of the game rules;
c. Initiating game play;
d. Cashout or logout; and
e. One or more buttons designated to reveal the pull-tab or instant bingo windows.
[ 8. 9. ] Following play on
[ a player an electronic pull-tab ] device,
the result shall be clearly shown on the video display along with any prizes
that may have been awarded. Prizes may be dispensed in the form of:
a. Voucher;
b. Added to the machine balance meter; or
c. Added to the player's account balance.
[ 9. 10. ] An available
balance may be collected from the [ player electronic
pull-tab ] device by the player pressing the "cashout"
button or logging off of the [ player electronic
pull-tab ] device at any time other than during:
a. A game being played;
b. While in an audit mode or screen;
c. Any door open;
d. Test mode;
e. A machine balance meter or win meter incrementation unless the entire amount is placed on the meter when the "cashout" button is pressed; or
f. An error condition.
[ 10. 11. ] The default
[ player electronic pull-tab ] device
display, upon entering game play mode, shall not be the top award.
B. [ A player An electronic
pull-tab ] device shall not have hardware or software that
determines the outcome of any electronic [ game card
pull-tab ], produce its own outcome, or affect the order of
electronic [ game cards pull-tabs ] as
dispensed from the distributed pull-tab system. The game outcome shall be
determined by the distributed pull-tab system as outlined within these rules.
C. Game themes [ may shall ]
not contain obscene or offensive graphics, animations, or references.
[ All game themes will be subject to approval by the department
The department shall determine what constitutes obscene or offensive graphics,
animations, or references. ]
D. Prior to approval for use, each [ player
electronic pull-tab ] device must meet the following specifications
with respect to its operation:
1. After accepting an allowable cash payment from the player, the player shall press a "play" button to initiate a game.
2. The [ player electronic
pull-tab ] device shall not display in any manner, the number of
electronic [ game cards pull-tabs ] of
each finite category, or how many cards remain.
3. Awards of merchandise prizes in lieu of cash are prohibited.
4. The player must interact with the device to initiate a game and reveal a win or loss. This may involve a button press on the console or on the touch screen.
5. The electronic [ game card
pull-tab ] must be initially displayed with a cover and require
player interaction to reveal the symbols and game outcome.
6. In no event may [ a player an
electronic pull-tab ] device simulate play of roulette, poker,
keno, lotto or lottery, twenty-one, blackjack, or any other card game, or
simulate play of any type of slot machine game, regardless of whether the
machine has a payback feature or extra play awards. Card symbols such as ace,
king, queen, or heart are acceptable, provided the aforementioned is abided by.
7. Games must not contain any elements of skill.
E. Each [ player electronic
pull-tab ] device must meet the following specifications with
respect to its metering system:
1. [ A player An electronic
pull-tab ] device shall contain electronic metering whereby meters
record and display on the video screen the following information at a minimum:
a. Total cash in for the bill acceptor if equipped with a bill acceptor;
b. Total cash played;
c. Total cash won;
d. Total cash removed from [ player
electronic pull-tab ] device;
e. Total count of electronic [ game cards
pull-tabs ] played; and
f. Total count of electronic [ game cards
pull-tabs ] won.
2. An electronic meter shall be capable of maintaining correct totals and be of no less than 10 digits in length.
3. [ A player An electronic
pull-tab ] device shall not be capable of displaying the number of
electronic [ game cards pull-tabs ] that
remain in the game set or the number of winners or losers that have been drawn
or still remain in the game set while the game set is still being played.
4. An electronic meter shall not be capable of being automatically reset or cleared, whether due to an error in any aspect of the meter's or a game's operation or otherwise.
5. Currency meters shall be maintained in dollars and cents.
Part V
Administrative Process
11VAC15-40-420. Procedural rules for the conduct of fact-finding conferences and hearings.
[ A. As used in this section, "manufacturer" means a person or entity that assembles from raw materials or subparts an electronic games of chance system. ]
[ A. B. ] Fact-finding
conference; notification, appearance, and conduct.
1. Unless automatic revocation or immediate suspension is
required by law, no permit to conduct charitable gaming [ , or ]
to sell charitable gaming supplies [ , or to distribute
electronic games of chance ] shall be denied, suspended, or revoked
except after review and approval of such proposed denial, suspension, or
revocation action by the board, and upon notice stating the basis for such
proposed action and the time and place for a fact-finding conference as set
forth in § 2.2-4019 of the Administrative Process Act.
2. If a basis exists for a refusal to renew, suspend, or a revoke a permit, the department shall notify by certified mail or by hand delivery the interested persons at the address of record maintained by the department.
3. Notification shall include the basis for the proposed
action and afford interested persons the opportunity to present written and
oral information to the department that may have a bearing on the proposed
action at a fact-finding conference. If there is no withdrawal, a fact-finding
conference shall be scheduled at the earliest mutually agreeable date, but no
later than 60 days from the date of the notification. Organizations [ ,
or ] suppliers [ , or manufacturers ] who
wish to waive their right to a conference shall notify the department at least
14 days before the scheduled conference.
4. If, after consideration of evidence presented during an informal fact-finding conference, a basis for action still exists, the interested persons shall be notified in writing within 60 days of the fact-finding conference via certified or hand-delivered mail of the decision and the right to a formal hearing. Parties to the conference may agree to extend the report deadline if more time is needed to consider relevant evidence.
[ B. C. ] Hearing;
notification, appearance, and conduct.
1. If, after a fact-finding conference, a sufficient basis
still exists to deny, suspend, or revoke a permit, interested persons shall be
notified by certified or hand-delivered mail of the proposed action and of the
opportunity for a hearing on the proposed action. If an organization
[ or, ] supplier [ , or
manufacturer ] desires to request a hearing, it shall notify the
department within 14 days of receipt of a report on the conference. Parties may
enter into a consent agreement to settle the issues at any time prior to, or
subsequent to, an informal fact-finding conference.
2. If an interested party or representative fails to appear at a hearing, the hearing officer may proceed in his absence and make a recommendation.
3. Oral and written arguments may be submitted to and limited by the hearing officer. Oral arguments shall be recorded in an appropriate manner.
[ C. D. ] Hearing location.
Hearings before a hearing officer shall be held, insofar as practicable, in the
county or city in which the organization [ or, ] supplier
[ , or manufacturer ] is located. If the parties agree,
hearing officers may conduct hearings at locations convenient to the greatest
number of persons or by telephone conference, video conference, or similar
technology, in order to expedite the hearing process.
[ D. E. ] Hearing
decisions.
1. Recommendations of the hearing officer shall be a part of the record and shall include a written statement of the hearing officer's findings of fact and recommendations as well as the reasons or basis for the recommendations. Recommendations shall be based upon all the material issues of fact, law, or discretion presented on the record.
2. The department shall review the recommendation of the hearing officer and render a decision on the recommendation within 30 days of receipt. The decision shall cite the appropriate rule, relief, or denial thereof as to each issue.
[ E. F. ] Agency representation.
The commissioner's designee may represent the department in an informal
conference or at a hearing.
11VAC15-40-430. Reporting violations.
[ A. As used in this section, "manufacturer" means a person or entity that assembles from raw materials or subparts an electronic games of chance system. ]
[ A. B. ] Unless otherwise
required by law, the identity of any individual who provides information to the
department or its agents regarding alleged violations shall be held in strict
confidence.
[ B. C. ] Any officer,
director, or game manager of a qualified organization or any officer or
director of a supplier [ or manufacturer ] shall
immediately report to the department any information pertaining to the
suspected misappropriation or theft of funds or any other violations of
charitable gaming statutes or these regulations.
[ C. D. ] Failure to report
the information required by subsection [ B C ]
of this section may result in the denial, suspension, or revocation of a
permit.
[ D. E. ] Any officer,
director, or game manager of a qualified organization involved in the
management, operation, or conduct of charitable gaming shall immediately notify
the department upon [ conviction being convicted ]
of a felony or a crime involving fraud, theft, or financial crimes.
[ E. F. ] Any officer, director,
partner, or owner of a supplier [ or manufacturer ] shall
immediately notify the department upon [ conviction
being convicted ] or [ plea of pleading ]
nolo contendere to a felony or a crime involving gambling or an action
against any license or certificate held by the supplier in any state in the
United States.
[ F. G. ] Failure to report
information required by subsection [ D or E or F ]
of this section by any officer, director, or game manager of a qualified
organization or by any supplier [ or manufacturer ] may
result in the denial, suspension, or revocation of a permit.
[ G. H. ] Any officer,
director, or game manager of a qualified organization involved in charitable
gaming shall immediately report to the department any change the Internal
Revenue Service makes in the tax status of the organization, or if the
organization is a chapter of a national organization covered by a group tax
exempt determination, the tax status of the national organization.
[ H. I. ] All organizations
regulated by the department shall display prominently a poster advising the
public of a phone number where complaints relating to charitable gaming may be
made. Such posters shall be [ provided by the department to
organizations at no charge in a format prescribed by the department ].
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 (11VAC15-40)
GAME MANAGEMENT FORMS
Bingo Session Reconciliation Summary, Form 103 (rev. 1/11).
Admission Sales Reconciliation - Paper, Form 104-A (rev. 1/11).
Floor Sales Reconciliation - Paper, Form 104-B (rev. 1/11).
Decision Bingo Reconciliation, Form 104-C (rev. 1/11).
Raffle/Treasure Chest Sales Reconciliation - Bingo Session, Form 104-D (rev. 1/11).
Instant Bingo/Seal Cards/Pull-Tabs Reconciliation, Form 105 (rev. 1/11) .
Storeroom Inventory Issue - Paper, Form 106-A (rev. 7/08).
Storeroom Inventory Issue - Instant Bingo/Seal Cards/Pull-Tabs, Form 106-B (rev. 7/08).
List of Volunteer Workers, Form 107 (rev. 7/08).
Prize Receipt, Form 108 (rev. 7/08).
Storeroom Inventory - Paper, Form 109-A (rev. 1/11).
Storeroom Inventory - Instant Bingo/Seal Cards/Pull-Tabs, Form 109-B (rev. 1/11) .
ORGANIZATION LICENSING FORMS
Charitable Gaming Permit Application - New Applicants Only, Form 201 - N (rev. 1/11).
Charitable Gaming Permit Application - Renewal Applicants Only, Form 201 - R (rev. 1/11).
Gaming Personnel Information Update (rev. 7/08).
Report of Game Termination (rev. 7/08).
[ SUPPLIER LICENSING FORMS
Charitable Gaming Supplier Permit Application, Form 301
(rev. 1/11).
Annual Supplier Sales and Transaction Report, Form 302
(rev. 7/08).
MANUFACTURER OF ELECTRONIC GAMES OF CHANCE SYSTEMS AND SUPPLIER LICENSING FORMS
Annual Supplier/Manufacturer Sales and Transaction Report, Form 302 (rev. 6/12). ]
BINGO MANAGER AND BINGO CALLER REGISTRATION FORMS
Charitable Gaming Bingo Caller Certificate of Registration Application, Form 401 (rev. 1/11).
Charitable Gaming Bingo Manager Certificate of Registration Application, Form 402 (rev. 1/11).
Amendment to Certificate of Registration – Registered Bingo Callers and Bingo Managers (rev. 1/11).
Bona Fide Member Verification, Form 405 (rev. 5/11).
DOCUMENTS INCORPORATED BY REFERENCE (11VAC15-40)
IRS Publication 3079, Tax-Exempt Organizations and Gaming (rev. 6/10).
VA.R. Doc. No. R11-2560; Filed September 10, 2012, 11:16 a.m.
w –––––––––––––––––– w
BOARD OF HEALTH
Fast-Track Regulation
Title of Regulation: 12VAC5-490. Virginia Radiation Protection Regulations: Fee Schedule (amending 12VAC5-490-40; repealing 12VAC5-490-30).
Statutory Authority: § 32.1-229 of the Code of Virginia.
Public Hearing Information: No public hearings are scheduled.
Public Comment Deadline: November 7, 2012.
Effective Date: November 22, 2012.
Agency Contact: Steve Harrison, Acting Director, Division of Radiological Health, Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7001, FAX (804) 864-7022, or email steve.harrison@vdh.virginia.gov.
Basis: Section 32.1-229 of the Code of Virginia authorizes the Board of Health to establish fee schedules for the licensure of radioactive materials.
Purpose: The fee schedule was designed on the premise that all licensees will pay their fair share of the program costs and one fee would be set per category of licensee based on time and effort. In developing the Commonwealth's program, the U.S. Nuclear Regulatory Commission (NRC) fee schedule was referenced and then adjusted for expected time and effort involved in the department's Radioactive Material Program (RMP) staff managing each license category. Unlike the NRC program, the RMP did not include a reduced rate for small business licensees as the size of the business (i.e., licensee) did not correlate with the time and effort required by RMP staff to administer the program.
The NRC delegated responsibility to the Commonwealth for licensure and inspection of radioactive materials. On that date there were 106 licensees designated as an NRC-Small Business (SB). Subsequently, 66 of the 106 SBs were charged a higher licensure fee by the Virginia Department of Health (VDH) than they had previously paid to the NRC. Through attrition, mergers, etc., the group of 66 has dropped to 54.
One licensee submitted a Petition for Rulemaking requesting the radioactive material licensing fees be lowered. By the time the public comment period ended, 18 comments had been received. VDH responded to the petition indicating a regulatory action would be initiated.
The proposed amendment to the regulation changes the fee in 22 licensure categories reducing the fee for some licensees while maintaining equity within each category.
Among the 54 remaining licensees, 35 will pay the same or lower fees to VDH than what they paid the NRC while 19 licensees will pay a higher licensing fee to VDH than they paid to the NRC, ranging from $250 to $3,700 more. However, of these 19 licensees, 17 will pay a lower fee to VDH than under the current fee schedule while 2 will continue to pay the same amount to VDH.
18 comments were received via the Town Hall concerning the petition for rulemaking. Based on VDHs analysis, only 4 of the commenters will pay a higher fee to VDH than they previously paid to the NRC. However, all 4 will pay less to VDH as a result of the proposed amendments than they are required to pay under the current regulations.
Rationale for Using Fast-Track Process: A fast-track rulemaking process for this amendment is necessary to provide the requested financial relief to the affected licensees as soon as possible.
Substance: This amendment repeals 12VAC5-490-30, which was used for the Naturally Occurring and Accelerated Radioactive Material (NARM) licensees prior to the agreement. These licensees are now covered by the fee schedule in 12VAC5-490-40.
The proposal for 12VAC5-490-40 amends the licensing category 7D titled "Medical Institutions Providing Imaging, Diagnostic or Radionuclide Therapy," and lowers the fee to $2,300, which matches the 2009 NRC small business fee these licensees paid to the NRC. The proposal also creates a new medical licensing category 7E titled "Medical Institutions Using a High Dose Remote Afterloader (HDR) or Emerging Technologies," to be used for medical therapy licensees. It lowers 21 other fee categories.
This amendment removes the fee category 11, which was used for licensing amendments and terminations. This cost can be covered by the annual licensing fee paid.
Issues: Primary advantages and disadvantages to the public: The primary advantage to the public is that the radioactive materials licensing and inspection activities will not rely on general funds to support these activities but rather the costs of the regulatory program will be fully borne by the licensees. It is also advantageous to businesses currently using radioactive materials to pay a lesser fee, where possible. There are no disadvantages to the public in promulgating the proposed fee schedule.
Primary advantages and disadvantages to the agency and Commonwealth: Approving the amended fee structure will allow 35 of the 54 active "small business" licensees to pay the same amount or less than what they paid to the NRC prior to March 31, 2009. The amended fee structure will also reduce the annual license fee for 17 of the active small business licensees. There are no disadvantages to the agency and Commonwealth in promulgating the proposed fee schedule. The proposed RMP fee schedule is sufficient to support the program.
Pertinent matters of interest to the regulated community: VDH staff anticipates that the 19 licensees who will still pay a higher licensing fee to VDH than what they paid the NRC may have a negative comment on the fee. The reason they will still pay a higher fee is due to the type of work these businesses perform with the radioactive material, regardless of the size of the business. If this fast-track action receives objections from 10 or more public commenters then the fee amendment would be processed as a standard rulemaking, which would take longer to complete. This would lengthen the period of time during which the licensees would continue to pay a higher fee.
Department of Planning and Budget's Economic Impact Analysis:
Summary of the Proposed Amendments to Regulation. The Board of Health (Board) proposes to lower several fees for radioactive materials licenses.
Result of Analysis. The benefits likely exceed the costs for all proposed changes.
Estimated Economic Impact. Currently there are 42 different categories of radioactive materials licenses. Under the proposed regulations one of the categories is split so that there would be a total of 43 license types. The Board proposes to lower fees for 22 categories and keep the fees the same for the others. According to the Department of Health, of the 428 active license holders, 364 will have their fees reduced and 64 will not have their fees changed. Also, the proposed fees will raise sufficient revenue to support the program. Since costs for the affected firms will be reduced and there will be sufficient funds to maintain the radioactive materials program (with its associated safety benefits), the proposed amendments will create a net benefit.
Businesses and Entities Affected. The proposed amendments affect 364 of the 428 radioactive materials license holders in the Commonwealth. Most are small businesses.
Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.
Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.
Effects on the Use and Value of Private Property. The proposed fee reductions will moderately increase the value of affected businesses.
Small Businesses: Costs and Other Effects. The proposed fee reductions will moderately reduce costs for affected small businesses.
Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.
Real Estate Development Costs. The proposed regulations are unlikely to significantly affect real estate development costs.
Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, 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 DPBs best estimate of these economic impacts.
Agency's Response to Economic Impact Analysis: The Department of Health concurs with the economic impact analysis submitted by the Department of Planning and Budget.
Summary:
This regulation supports the department's Radioactive Materials Program (RMP) for those materials the U.S. Nuclear Regulatory Commission (NRC) transferred to the Commonwealth by agreement. The amendments lower several fees for radioactive materials licenses.
12VAC5-490-30. Application and licensing fees for naturally
occurring and accelerator-produced radioactive materials. (Repealed.)
The application and licensing fees to receive, possess,
use, transfer, own or acquire naturally occurring and accelerator-produced
radioactive materials license pursuant to 12VAC5-481 are listed in
12VAC5-490-40.
12VAC5-490-40. Application and licensing fees for byproduct,
source, and special nuclear radioactive materials licenses.
The application and licensing fees to receive, possess,
use, transfer, own or acquire byproduct materials, source and special nuclear
materials shall not become effective until 30 days after publication in the
Virginia Register of a notice of an agreement executed by the Commonwealth of
Virginia and the federal government under the provisions of § 274b of the
Atomic Energy Act of 1954, as amended (73 Statute 689). Application The
application fee for a radioactive materials license and annual fees for
persons issued a radioactive materials license pursuant to 12VAC5-481 are
listed in the following table: