REGISTER INFORMATION
PAGE
The Virginia Register OF
REGULATIONS is an official state publication issued every other week
throughout the year. Indexes are published quarterly, and are cumulative for
the year. The Virginia Register has
several functions. The new and amended sections of regulations, both as
proposed and as finally adopted, are required by law to be published in the Virginia Register. In addition, the Virginia Register is a source of other
information about state government, including petitions for rulemaking,
emergency regulations, executive orders issued by the Governor, and notices of
public hearings on regulations.
ADOPTION, AMENDMENT, AND REPEAL OF REGULATIONS
An
agency wishing to adopt, amend, or repeal regulations must first publish in the
Virginia Register a notice of
intended regulatory action; a basis, purpose, substance and issues statement;
an economic impact analysis prepared by the Department of Planning and Budget;
the agency’s response to the economic impact analysis; a summary; a notice
giving the public an opportunity to comment on the proposal; and the text of
the proposed regulation.
Following
publication of the proposal in the Virginia Register, the promulgating agency
receives public comments for a minimum of 60 days. The Governor reviews the
proposed regulation to determine if it is necessary to protect the public
health, safety and welfare, and if it is clearly written and easily
understandable. If the Governor chooses to comment on the proposed regulation,
his comments must be transmitted to the agency and the Registrar no later than
15 days following the completion of the 60-day public comment period. The Governor’s
comments, if any, will be published in the Virginia
Register. Not less than 15 days following the completion of the 60-day
public comment period, the agency may adopt the proposed regulation.
The
Joint Commission on Administrative Rules (JCAR) or the appropriate standing
committee of each house of the General Assembly may meet during the
promulgation or final adoption process and file an objection with the Registrar
and the promulgating agency. The objection will be published in the Virginia Register. Within 21 days after
receipt by the agency of a legislative objection, the agency shall file a
response with the Registrar, the objecting legislative body, and the Governor.
When
final action is taken, the agency again publishes the text of the regulation as
adopted, highlighting all changes made to the proposed regulation and
explaining any substantial changes made since publication of the proposal. A
30-day final adoption period begins upon final publication in the Virginia Register.
The
Governor may review the final regulation during this time and, if he objects,
forward his objection to the Registrar and the agency. In addition to or in
lieu of filing a formal objection, the Governor may suspend the effective date
of a portion or all of a regulation until the end of the next regular General
Assembly session by issuing a directive signed by a majority of the members of
the appropriate legislative body and the Governor. The Governor’s objection or
suspension of the regulation, or both, will be published in the Virginia Register. If the Governor finds
that changes made to the proposed regulation have substantial impact, he may
require the agency to provide an additional 30-day public comment period on the
changes. Notice of the additional public comment period required by the
Governor will be published in the Virginia
Register.
The
agency shall suspend the regulatory process for 30 days when it receives
requests from 25 or more individuals to solicit additional public comment,
unless the agency determines that the changes have minor or inconsequential
impact.
A
regulation becomes effective at the conclusion of the 30-day final adoption
period, or at any other later date specified by the promulgating agency, unless
(i) a legislative objection has been filed, in which event the regulation,
unless withdrawn, becomes effective on the date specified, which shall be after
the expiration of the 21-day objection period; (ii) the Governor exercises his
authority to require the agency to provide for additional public comment, in
which event the regulation, unless withdrawn, becomes effective on the date
specified, which shall be after the expiration of the period for which the
Governor has provided for additional public comment; (iii) the Governor and the
General Assembly exercise their authority to suspend the effective date of a
regulation until the end of the next regular legislative session; or (iv) the
agency suspends the regulatory process, in which event the regulation, unless
withdrawn, becomes effective on the date specified, which shall be after the
expiration of the 30-day public comment period and no earlier than 15 days from
publication of the readopted action.
A
regulatory action may be withdrawn by the promulgating agency at any time
before the regulation becomes final.
FAST-TRACK RULEMAKING PROCESS
Section
2.2-4012.1 of the Code of Virginia provides an exemption from certain
provisions of the Administrative Process Act for agency regulations deemed by
the Governor to be noncontroversial. To
use this process, Governor's concurrence is required and advance notice must be
provided to certain legislative committees.
Fast-track regulations will become effective on the date noted in the
regulatory action if no objections to using the process are filed in accordance
with § 2.2-4012.1.
EMERGENCY REGULATIONS
Pursuant
to § 2.2-4011 of the Code of
Virginia, an agency, upon consultation with the Attorney General, and at the
discretion of the Governor, may adopt emergency regulations that are
necessitated by an emergency situation. An agency may also adopt an emergency
regulation when Virginia statutory law or the appropriation act or federal law
or federal regulation requires that a regulation be effective in 280 days or
less from its enactment. The emergency
regulation becomes operative upon its adoption and filing with the Registrar of
Regulations, unless a later date is specified. Emergency regulations are limited
to no more than 12 months in duration; however, may be extended for six months
under certain circumstances as provided for in § 2.2-4011 D. Emergency
regulations are published as soon as possible in the Register.
During
the time the emergency status is in effect, the agency may proceed with the
adoption of permanent regulations through the usual procedures. To begin
promulgating the replacement regulation, the agency must (i) file the Notice of
Intended Regulatory Action with the Registrar within 60 days of the effective
date of the emergency regulation and (ii) file the proposed regulation with the
Registrar within 180 days of the effective date of the emergency regulation. If
the agency chooses not to adopt the regulations, the emergency status ends when
the prescribed time limit expires.
STATEMENT
The
foregoing constitutes a generalized statement of the procedures to be followed.
For specific statutory language, it is suggested that Article 2 (§ 2.2-4006
et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be examined
carefully.
CITATION TO THE VIRGINIA
REGISTER
The Virginia Register is cited by volume,
issue, page number, and date. 28:2 VA.R.
47-141 September 26, 2011, refers to Volume 28, Issue 2, pages 47 through 141
of the Virginia Register issued on
September 26, 2011.
The Virginia Register of Regulations is published pursuant to Article 6 (§ 2.2-4031 et
seq.) of Chapter 40 of Title 2.2 of the Code of Virginia.
Members
of the Virginia Code Commission: John S. Edwards, Chairman; Gregory D. Habeeb; James M. LeMunyon; Ryan T. McDougle; Robert L.
Calhoun; E.M. Miller, Jr.; Thomas M. Moncure, Jr.; Wesley G. Russell, Jr.;
Charles S. Sharp; Robert L. Tavenner; Christopher R. Nolen; J. Jasen Eige or
Jeffrey S. Palmore.
Staff
of the Virginia Register: Jane D.
Chaffin, Registrar of Regulations; June T. Chandler, Assistant
Registrar; Rhonda Dyer, Publications
Assistant; Terri Edwards, Operations
Staff Assistant;
Karen Perrine, Staff Attorney.
PUBLICATION SCHEDULE AND DEADLINES
October
2012 through November 2013
|
Volume: Issue
|
Material Submitted By Noon*
|
Will Be Published On
|
|
29:4
|
October 3, 2012
|
October 22, 2012
|
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29:5
|
October 17, 2012
|
November 5, 2012
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29:6
|
October 31, 2012
|
November 19, 2012
|
|
29:7
|
November 13, 2012 (Tuesday)
|
December 3, 2012
|
|
29:8
|
November 28, 2012
|
December 17, 2012
|
|
29:9
|
December 11, 2012 (Tuesday)
|
December 31, 2012
|
|
29:10
|
December 26, 2012
|
January 14, 2013
|
|
29:11
|
January 9, 2013
|
January 28, 2013
|
|
29:12
|
January 23, 2013
|
February 11, 2013
|
|
29:13
|
February 6, 2013
|
February 25, 2013
|
|
29:14
|
February 20, 2013
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March 11, 2013
|
|
29:150
|
March 6, 2013
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March 25, 2013
|
|
29:16
|
March 20, 2013
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April 8, 2013
|
|
29:17
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April 3, 2013
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April 22, 2013
|
|
29:18
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April 17, 2013
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May 6, 2013
|
|
29:19
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May 1, 2013
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May 20, 2013
|
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29:20
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May 15, 2013
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June 3, 2013
|
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29:21
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May 29, 2013
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June 17, 2013
|
|
29:22
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June 12, 2013
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July 1, 2013
|
|
29:23
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June 26, 2013
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July 15, 2013
|
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29:24
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July 10, 2013
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July 29, 2013
|
|
29:25
|
July 24, 2013
|
August 12, 2013
|
|
29:26
|
August 7, 2013
|
August 26, 2013
|
|
30:1
|
August 21, 2013
|
September 9, 2013
|
|
30:2
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September 4, 2013
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September 23, 2013
|
|
30:3
|
September 18, 2013
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October 7, 2013
|
|
30:4
|
October 2, 2013
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October 21, 2013
|
|
30:5
|
October 16, 2013
|
November 4, 2013
|
|
30:6
|
October 30, 2013
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November 18, 2013
|
*Filing deadlines are Wednesdays
unless otherwise specified.
PETITIONS FOR RULEMAKING
TITLE 18. AGRICULTURE
DEPARTMENT
OF AGRICULTURE AND CONSUMER SERVICES
Initial
Agency Notice
Title of Regulation: 2VAC5-670. Rules
and Regulations for Enforcement of the Virginia Pesticide Law.
Statutory
Authority: § 3.2-3906 of the Code of Virginia.
Name
of Petitioner: H. Ronald Coake.
Nature
of Petitioner's Request: The petitioner is requesting that the Board of
Agriculture and Consumer Services amend the regulation to prohibit a person
from applying, dispensing, or using any pesticide or herbicide on property
without written permission from the property owner and without notification of
the application that includes the material safety data sheet.
Agency
Plan for Disposition of Request: The Board of Agriculture and Consumer
Services will consider this request at its next scheduled meeting following the
public comment period.
Public
Comment Deadline: November 11, 2012.
Agency Contact: Erin Williams, Policy and Planning
Coordinator, Department of Agriculture and Consumer Services, Oliver Hill
Building, 102 Governor Street, Richmond, VA 23219, telephone (804) 786-1308, or
email erin.williams@vdacs.virginia.gov.
VA.R. Doc. No. R13-06,
Filed September 25, 2012, 10:15 a.m.
Initial
Agency Notice
Title of Regulation: 2VAC5-680.
Regulations Governing Licensing of Pesticide Businesses Operating Under
Authority of the Virginia Pesticide Control Act.
Statutory
Authority: § 3.2-3906 of the Code of Virginia.
Name
of Petitioner: H. Ronald Coake.
Nature
of Petitioner's Request: The petitioner is requesting that the Board of
Agriculture and Consumer Services amend the regulation to require the
revocation of the business license of any person who applies any pesticide or
herbicide on property without written permission from the property owner and
without notification to the property owner that includes the material safety
data sheet. The petitioner is also requesting that the Board of Agriculture and
Consumer Services amend the regulation to include provisions regarding the
restoration of property and environmental cleanup.
Agency
Plan for Disposition of Request: The Board of Agriculture and Consumer
Services will consider this request at its next scheduled meeting following the
public comment period.
Public
Comment Deadline: November 11, 2012.
Agency Contact: Erin Williams, Policy and Planning
Coordinator, Department of Agriculture and Consumer Services, Oliver Hill
Building, 102 Governor Street, Richmond, VA 23219, telephone (804) 786-1308, or
email erin.williams@vdacs.virginia.gov.
VA.R. Doc. No. R13-05,
Filed September 25, 2012, 10:20 a.m.
REGULATIONS
TITLE 1. ADMINISTRATION
DEPARTMENT OF GENERAL SERVICES
Final Regulation
REGISTRAR'S NOTICE:
The Department General Services is claiming an exemption from the
Administrative Process Act in accordance with (i) § 2.2-4006 A 3 of the
Code of Virginia, which excludes regulations that consist only of changes in
style or form or corrections of technical errors and (ii) § 2.2-4006 A 4 a
of the Code of Virginia, which excludes regulations that are necessary to
conform to changes in Virginia statutory law where no agency discretion is
involved. The Department of General Services will receive, consider, and
respond to petitions by any interested person at any time with respect to
reconsideration or revision.
Titles of Regulations: 1VAC30-45. Certification for
Noncommercial Environmental Laboratories (amending 1VAC30-45-40).
1VAC30-46. Accreditation for Commercial Environmental
Laboratories (amending 1VAC30-46-40).
Statutory Authority: § 2.2-1105 of the Code of
Virginia.
Effective Date: November 21, 2012.
Agency Contact: Rhonda Bishton, Regulatory Coordinator,
Department of General Services, 1100 Bank Street, Suite 420, Richmond, VA
23219, telephone (804) 786-3311, FAX (804) 371-8305, or email
rhonda.bishton@dgs.virginia.gov.
Summary:
To conform to the amendment made to § 2.2-1105
by Chapter 99 of the 2012 Acts of Assembly, the Division of Consolidated
Laboratory Services has revised the definition of "environmental
analysis" in the regulations governing the Virginia Environmental
Laboratory Accreditation Program (1VAC30-45 and 1VAC30-46). The definition is
revised to include an exemption for laboratories using protocols pursuant to § 10.1-104.2
of the Code of Virginia to determine soil fertility, animal manure nutrient
content, or plant tissue nutrient uptake for the purposes of nutrient
management.
1VAC30-45-40. Definitions.
Where a term is defined in this section, the term shall have
no other meaning, even if it is defined differently in the Code of Virginia or
another regulation of the Virginia Administrative Code. Unless specifically
defined in this section, the terms used in this chapter shall have the meanings
commonly ascribed to them by recognized authorities.
"Acceptance criteria" means specified limits placed
on characteristics of an item, process, or service defined in requirement
documents.
"Accuracy" means the degree of agreement between an
observed value and an accepted reference value. Accuracy includes a combination
of random error (precision) and systematic error (bias) components that are due
to sampling and analytical operations. Accuracy is an indicator of data
quality.
"Algae" means simple single-celled, colonial, or
multicelled, mostly aquatic plants, containing chlorophyll and lacking roots,
stems and leaves that are either suspended in water (phytoplankton) or attached
to rocks and other substrates (periphyton).
"Aliquot" means a portion of a sample taken for
analysis.
"Analyte" means the substance or physical property
to be determined in samples examined.
"Analytical method" means a technical procedure for
providing analysis of a sample, defined by a body such as the Environmental
Protection Agency or the American Society for Testing and Materials, that may
not include the sample preparation method.
"Assessment" means the evaluation process used to
measure or establish the performance, effectiveness, and conformance of an
organization and its systems or both to defined criteria.
"Assessor" means the person who performs on-site
assessments of laboratories' capability and capacity for meeting the
requirements under this chapter by examining the records and other physical
evidence for each one of the tests for which certification has been requested.
"Audit" means a systematic evaluation to determine
the conformance to quantitative and qualitative specifications of some
operational function or activity.
"Authority" means, in the context of a governmental
body or local government, an authority created under the provisions of the
Virginia Water and Waste Authorities Act, Chapter 51 (§ 15.2-5100 et seq.)
of Title 15.2 of the Code of Virginia.
"Batch" means environmental samples that are
prepared together or analyzed together or both with the same process and
personnel, using the same lot or lots of reagents. "Analytical batch"
means a batch composed of prepared environmental samples (extracts, digestates
or concentrates) that are analyzed together as a group. An analytical batch can
include prepared samples originating from various environmental matrices and
can exceed 20 samples. "Preparation batch" means a batch composed of
one to 20 environmental samples of the same matrix that meets the criteria in
this definition for "batch" and with a maximum time between the start
of processing of the first and last sample in the batch to be 24 hours.
"Benthic macroinvertebrates" means bottom dwelling
animals without backbones that live at least part of their life cycles within
or upon available substrates within a body of water.
"Blank" means a sample that has not been exposed to
the analyzed sample stream in order to monitor contamination during sampling,
transport, storage or analysis. The blank is subjected to the usual analytical
and measurement process to establish a zero baseline or background value and is
sometimes used to adjust or correct routine analytical results. Blanks include
the following types:
1. Field blank. A blank prepared in the field by filling a
clean container with pure deionized water and appropriate preservative, if any,
for the specific sampling activity being undertaken.
2. Method blank. A sample of a matrix similar to the batch of
associated samples (when available) that is free from the analytes of interest
and is processed simultaneously with and under the same conditions as samples
through all steps of the analytical procedures, and in which no target analytes
or interferences are present at concentrations that impact the analytical
results for sample analyses.
"Calibration" means to determine, by measurement or
comparison with a standard, the correct value of each scale reading on a meter,
instrument or other device. The levels of the applied calibration standard
should bracket the range of planned or expected sample measurements.
"Calibration curve" means the graphical
relationship between the known values, such as concentrations, of a series of
calibration standards and their instrument response.
"Calibration standard" means a substance or
reference material used to calibrate an instrument.
"Certified reference material" means a reference
material one or more of whose property values are certified by a technically
valid procedure, accompanied by or traceable to a certificate or other
documentation that is issued by a certifying body.
"Commercial environmental laboratory" means an
environmental laboratory where environmental analysis is performed for another
person.
"Corrective action" means the action taken to
eliminate the causes of an existing nonconformity, defect or other undesirable
situation in order to prevent recurrence.
"DGS-DCLS" means the Division of Consolidated
Laboratory Services of the Department of General Services.
"Demonstration of capability" means the procedure
to establish the ability of the analyst to generate data of acceptable accuracy
and precision.
"Detection limit" means the lowest concentration or
amount of the target analyte that can be determined to be different from zero
by a single measurement at a stated degree of confidence.
"Environmental analysis" or "environmental
analyses" means any test, analysis, measurement, or monitoring used for
the purposes of the Virginia Air Pollution Control Law, the Virginia Waste
Management Act or the State Water Control Law (§ 10.1-1300 et seq., § 10.1-1400
et seq., and § 62.1-44.2 et seq., respectively, of the Code of Virginia).
For the purposes of these regulations, any test, analysis, measurement, or
monitoring required pursuant to the regulations promulgated under these three
laws, or by any permit or order issued under the authority of any of these laws
or regulations is "used for the purposes" of these laws. The term
shall not include the following:
1. Sampling of water, solid and chemical materials, biological
tissue, or air and emissions.
2. Field testing and measurement of water, solid and chemical
materials, biological tissue, or air and emissions, except when performed in an
environmental laboratory rather than at the site where the sample was taken.
3. Taxonomic identification of samples for which there is no
national accreditation standard such as algae, benthic macroinvertebrates,
macrophytes, vertebrates and zooplankton.
4. Protocols used pursuant to § 10.1-104.2 of the Code
of Virginia to determine soil fertility, animal manure nutrient content, or
plant tissue nutrient uptake for the purposes of nutrient management.
"Environmental laboratory" or
"laboratory" means a facility or a defined area within a facility
where environmental analysis is performed. A structure built solely to shelter
field personnel and equipment from inclement weather shall not be considered an
environmental laboratory.
"Establishment date" means the date set for the
accreditation program under 1VAC30-46 and the certification program to be
established under this chapter.
"Establishment of certification program" or
"established program" means that DGS-DCLS has completed the initial
accreditation of environmental laboratories covered by 1VAC30-46 and the
initial certification of environmental laboratories covered by 1VAC30-45.
"Facility" means something that is built or
installed to serve a particular function.
"Field of certification" means an approach to
certifying laboratories by matrix, technology/method and analyte/analyte group.
"Field testing and measurement" means any of the
following:
1. Any test for parameters under 40 CFR Part 136 for which the
holding time indicated for the sample requires immediate analysis; or
2. Any test defined as a field test in federal regulation.
The following is a limited list of currently recognized field
tests or measures that is not intended to be inclusive: continuous emissions
monitoring; on-line monitoring; flow monitoring; tests for pH, residual
chlorine, temperature and dissolved oxygen; and field analysis for soil gas.
"Finding" means an assessment conclusion that
identifies a condition having a significant effect on an item or activity. An
assessment finding is normally a deficiency and is normally accompanied by
specific examples of the observed condition.
"Governmental body" means any department, agency,
bureau, authority, or district of the United States government, of the
government of the Commonwealth of Virginia, or of any local government within
the Commonwealth of Virginia.
"Holding time (or maximum allowable holding time)"
means the maximum time that a sample may be held prior to analysis and still be
considered valid or not compromised.
"Initial certification period" means the period
during which DGS-DCLS is accepting and processing applications for the first
time under this chapter as specified in 1VAC30-45-60.
"International System of Units (SI)" means the
coherent system of units adopted and recommended by the General Conference on
Weights and Measures.
"Laboratory control sample" or "LCS"
means a sample matrix, free from the analytes of interest, spiked with verified
known amounts of analytes or a material containing known and verified amounts
of analytes. It is generally used to establish intra-laboratory or analyst
specific precision and bias or to assess the performance of all or a portion of
the measurement system. "Laboratory control sample" or
"LCS" may also be named laboratory fortified blank, spiked blank, or
QC check sample.
"Laboratory manager" means the person who has
overall responsibility for the technical operation of the environmental
laboratory and who exercises actual day-to-day supervision of laboratory
operation for the appropriate fields of testing and reporting of results. The
title of this person may include but is not limited to laboratory director,
technical director, laboratory supervisor or laboratory manager.
"Legal entity" means an entity, other than a
natural person, who has sufficient existence in legal contemplation that it can
function legally, be sued or sue and make decisions through agents as in the case
of corporations.
"Limit of detection" or "LOD" means an
estimate of the minimum amount of a substance that an analytical process can
reliably detect. An LOD is analyte and matrix specific and may be laboratory
dependent.
"Limit of quantitation" or "LOQ" means
the minimum levels, concentrations, or quantities of a target variable (e.g.,
target analyte) that can be reported with a specified degree of confidence.
"Local government" means a municipality (city or
town), county, sanitation district, or authority.
"Macrophytes" means any aquatic or terrestrial
plant species that can be identified and observed with the eye, unaided by
magnification.
"Matrix" means the component or substrate that may
contain the analyte of interest. A matrix can be a field of certification
matrix or a quality system matrix.
1. Field of certification matrix. These matrix definitions
shall be used when certifying a laboratory.
a. Non-potable water. Any aqueous sample that has not been
designated a potable or potential potable water source. Includes surface water,
groundwater, effluents, water treatment chemicals, and TCLP or other extracts.
b. Solid and chemical materials. Includes soils, sediments,
sludges, products and byproducts of an industrial process that results in a
matrix not previously defined.
c. Biological tissue. Any sample of a biological origin such
as fish tissue, shellfish, or plant material. Such samples shall be grouped
according to origin.
d. Air and emissions. Whole gas or vapor samples including
those contained in flexible or rigid wall containers and the extracted
concentrated analytes of interest from a gas or vapor that are collected with a
sorbent tube, impinger solution, filter or other device.
2. Quality system matrix. For purposes of batch and quality control
requirement determinations, the following matrix types shall be used:
a. Drinking water. Any aqueous sample that has been designated
a potable or potential potable water source.
b. Aqueous. Any aqueous sample excluded from the definition of
drinking water matrix or saline/estuarine source. Includes surface water,
groundwater, effluents, and TCLP or other extracts.
c. Saline/estuarine. Any aqueous sample from an ocean or
estuary, or other salt water source.
d. Nonageous Nonaqueous liquid. Any organic liquid
with less than 15% settleable solids.
e. Biological tissue. Any sample of a biological origin such
as fish tissue, shellfish, or plant material. Such samples shall be grouped
according to origin.
f. Solids. Includes soils, sediments, sludges and other
matrices with more than 15% settleable solids.
g. Chemical waste. A product or by-product of an industrial
process that results in a matrix not previously defined.
h. Air and emissions. Whole gas or vapor samples including
those contained in flexible or rigid wall containers and the extracted
concentrated analytes of interest from a gas or vapor that are collected with a
sorbent tube, impinger solution, filter or other device.
"Matrix spike (spiked sample or fortified sample)"
means a sample prepared by adding a known mass of target analyte to a specified
amount of matrix sample for which an independent estimate of target analyte
concentration is available. Matrix spikes are used, for example, to determine
the effect of the matrix on a method's recovery efficiency.
"Matrix spike duplicate (spiked sample or fortified
sample duplicate)" means a second replicate matrix spike prepared in the
laboratory and analyzed to obtain a measure of the precision of the recovery
for each analyte.
"National Environmental Laboratory Accreditation
Conference (NELAC)" means a voluntary organization of state and federal
environmental officials and interest groups with the primary purpose to
establish mutually acceptable standards for accrediting environmental
laboratories. A subset of NELAP.
"National Environmental Laboratory Accreditation Program
(NELAP)" means the overall National Environmental Laboratory Accreditation
Program of which NELAC is a part.
"National Institute of Standards and Technology" or
"NIST" means an agency of the U.S. Department of Commerce's
Technology Administration that is working with EPA, states, NELAC, and other
public and commercial entities to establish a system under which private sector
companies and interested states can be certified by NIST to provide
NIST-traceable proficiency testing (PT) samples.
"Negative control" means measures taken to ensure
that a test, its components, or the environment do not cause undesired effects,
or produce incorrect test results.
"Noncommercial environmental laboratory" means
either of the following:
1. An environmental laboratory where environmental analysis is
performed solely for the owner of the laboratory.
2. An environmental laboratory where the only performance of
environmental analysis for another person is one of the following:
a. Environmental analysis performed by an environmental
laboratory owned by a local government for an owner of a small wastewater
treatment system treating domestic sewage at a flow rate of less than or equal
to 1,000 gallons per day.
b. Environmental analysis performed by an environmental
laboratory operated by a corporation as part of a general contract issued by a
local government to operate and maintain a wastewater treatment system or a
waterworks.
c. Environmental analysis performed by an environmental
laboratory owned by a corporation as part of the prequalification process or to
confirm the identity or characteristics of material supplied by a potential or
existing customer or generator as required by a hazardous waste management
permit under 9VAC20-60.
d. Environmental analysis performed by an environmental
laboratory owned by a Publicly Owned Treatment Works (POTW) for an industrial
source of wastewater under a permit issued by the POTW to the industrial source
as part of the requirements of a pretreatment program under Part VII
(9VAC25-31-730 et seq.) of 9VAC25-31.
e. Environmental analysis performed by an environmental
laboratory owned by a county authority for any municipality within the county's
geographic jurisdiction when the environmental analysis pertains solely to the
purpose for which the authority was created.
f. Environmental analysis performed by an environmental
laboratory owned by an authority or a sanitation district for any participating
local government of the authority or sanitation district when the environmental
analysis pertains solely to the purpose for which the authority or sanitation
district was created.
"Owner" means any person who owns, operates, leases
or controls an environmental laboratory.
"Person" means an individual, corporation,
partnership, association, company, business, trust, joint venture or other
legal entity.
"Physical," for the purposes of fee test
categories, means the tests to determine the physical properties of a sample.
Tests for solids, turbidity and color are examples of physical tests.
"Positive control" means measures taken to ensure
that a test or its components are working properly and producing correct or
expected results from positive test subjects.
"Precision" means the degree to which a set of
observations or measurements of the same property, obtained under similar
conditions, conform to themselves. Precision is an indicator of data quality.
Precision is expressed usually as standard deviation, variance or range, in
either absolute or relative terms.
"Primary accrediting authority" means the agency or
department designated at the territory, state or federal level as the
recognized authority with the responsibility and accountability for granting
NELAC accreditation to a specific laboratory for a specific field of
accreditation.
"Proficiency test or testing (PT)" means evaluating
a laboratory's performance under controlled conditions relative to a given set
of criteria through analysis of unknown samples provided by an external source.
"Proficiency test (PT) field of testing" means the
approach to offer proficiency testing by maxtrix, technology/method, and
analyte/analyte group.
"Proficiency test (PT) sample" means a sample, the
composition of which is unknown to both the analyst and the laboratory provided
to test whether the analyst or laboratory or both can produce analytical
results within specified acceptance criteria.
"Proficiency testing (PT) program" means the
aggregate of providing rigorously controlled and standardized environmental
samples to a laboratory for analysis, reporting of results, statistical
evaluation of the results and the collective demographics and results summary
of all participating laboratories.
"Program," in the context of a regulatory program,
means the relevant U.S. Environmental Protection Agency program such as the
water program under the Clean Water Act (CWA), the air program under the Clean
Air Act (CAA), the waste program under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA or Superfund) or the waste
program under the Resource Conservation and Recovery Act (RCRA).
"Publicly Owned Treatment Works (POTW)" means a
treatment works as defined by § 212 of the CWA, which is owned by a state or
municipality (as defined by § 502(4) of the CWA). This definition includes any
devices and systems used in the storage, treatment, recycling, and reclamation
of municipal sewage or industrial wastes of a liquid nature. It also includes
sewers, pipes, and other conveyances only if they convey wastewater to a POTW
treatment plant. The term also means the municipality as defined in § 502(4)
of the CWA, which has jurisdiction over the indirect discharges to and the
discharges from such a treatment works.
"Quality assurance" means an integrated system of
activities involving planning, quality control, quality assessment, reporting
and quality improvement to ensure that a product or service meets defined
standards of quality with a stated level of confidence.
"Quality assurance officer" means the person who
has responsibility for the quality system and its implementation. Where
staffing is limited, the quality assurance officer may also be the laboratory
manager.
"Quality control" means the overall system of
technical activities whose purpose is to measure and control the quality of a
product or service so that it meets the needs of users.
"Quality manual" means a document stating the
management policies, objectives, principles, organizational structure and
authority, responsibilities, accountability, and implementation of an agency,
organization, or laboratory, to ensure the quality of its product and the
utility of its product to its users.
"Quality system" means a structured and documented
management system describing the policies, objectives, principles,
organizational authority, responsibilities, accountability, and implementation
plan of an organization for ensuring quality in its work processes, products
(items), and services. The quality system provides the framework for planning,
implementing, and assessing work performed by the organization and for carrying
out required quality assurance and quality control.
"Range" means the difference between the minimum
and maximum of a set of values.
"Reference material" means a material or substance
one or more properties of which are sufficiently well established to be used
for the calibration of an apparatus, the assessment of a measurement test
method, or for assigning values to materials.
"Reference standard" means a standard, generally of
the highest metrological quality available at a given location, from which
measurements made at that location are derived.
"Responsible official" means one of the following,
as appropriate:
1. If the laboratory is owned or operated by a private
corporation, "responsible official" means (i) a president, secretary,
treasurer, or a vice-president of the corporation in charge of a principal
business function, or any other person who performs similar policy-making or
decision-making functions for the corporation or (ii) the manager of one or
more manufacturing, production, or operating facilities employing more than 250
persons or having gross annual sales or expenditures exceeding $25 million (in
second-quarter 1980 dollars), if authority to sign documents has been assigned
or delegated in accordance with corporate procedures.
2. If the laboratory is owned or operated by a partnership,
association, or a sole proprietor, "responsible official" means a
general partner, officer of the association, or the proprietor, respectively.
3. If the laboratory is owned or operated by a governmental
body, "responsible official" means a director or highest official
appointed or designated to oversee the operation and performance of the
activities of the environmental laboratory.
4. Any person designated as the responsible official by an
individual described in subdivision 1, 2 or 3 of this definition, provided the
designation is in writing, the designation specifies an individual or position
with responsibility for the overall operation of the environmental laboratory,
and the designation is submitted to DGS-DCLS.
"Sampling" means the act of collection for the
purpose of analysis.
"Sanitation district" means a sanitation district
created under the provisions of Chapters 3 (§ 21-141 et seq.) through 5 (§ 21-291
et seq.) of Title 21 of the Code of Virginia.
"Sewage" means the water-carried human wastes from
residences, buildings, industrial establishments or other places together with
such industrial wastes and underground, surface, storm, or other water as may
be present.
"Simple test procedures" means any of the
following:
1. Field testing and measurement performed in an environmental
laboratory.
2. The test procedures to determine:
a. Biochemical oxygen demand (BOD);
b. Fecal coliform;
c. Total coliform;
d. Fecal streptococci;
e. E. coli;
f. Enterococci;
g. Settleable solids (SS);
h. Total dissolved solids (TDS);
i. Total solids (TS);
j. Total suspended solids (TSS);
k. Total volatile solids (TVS); and
l. Total volatile suspended solids (TVSS).
"Standard operating procedure (SOP)" means a
written document that details the method of an operation, analysis or action
whose techniques and procedures are thoroughly prescribed and which is accepted
as the method for performing certain routine or repetitive tasks.
"Standardized reference material (SRM)" means a
certified reference material produced by the U.S. National Institute of
Standards and Technology or other equivalent organization and characterized for
absolute content, independent of analytical method.
"System laboratory" means a noncommercial
laboratory that analyzes samples from multiple facilities having the same
owner.
"TCLP" or "toxicity characteristic leachate
procedure" means Test Method 1311 in "Test Methods for Evaluating Solid
Waste, Physical/Chemical Methods," EPA Publication SW-846, as incorporated
by reference in 40 CFR 260.11. This method is used to determine whether a solid
waste exhibits the characteristic of toxicity (see 40 CFR 261.24).
"Test" means a technical operation that consists of
the determination of one or more characteristics or performance of a given
product, material, equipment, organism, physical phenomenon, process or service
according to a specified procedure.
"Test, analysis, measurement or monitoring required
pursuant to the Virginia Air Pollution Control Law" means any method of
analysis required by the Virginia Air Pollution Control Law (§ 10.1-1300
et seq.); by the regulations promulgated under this law (9VAC5) including any
method of analysis listed either in the definition of "reference
method" in 9VAC5-10-20, or listed or adopted by reference in 9VAC5; or by
any permit or order issued under and in accordance with this law and these
regulations.
"Test, analysis, measurement or monitoring required
pursuant to the Virginia Waste Management Act" means any method of
analysis required by the Virginia Waste Management Act (§ 10.1-1400 et seq.);
by the regulations promulgated under this law (9VAC20), including any method of
analysis listed or adopted by reference in 9VAC20; or by any permit or order
issued under and in accordance with this law and these regulations.
"Test, analysis, measurement or monitoring required
pursuant to the Virginia Water Control Law" means any method of analysis
required by the Virginia Water Control Law (§ 62.1-44.2 et seq.); by the
regulations promulgated under this law (9VAC25), including any method of
analysis listed or adopted by reference in 9VAC25; or by any permit or order
issued under and in accordance with this law and these regulations.
"Test method" means an adoption of a scientific
technique for performing a specific measurement as documented in a laboratory
standard operating procedure or as published by a recognized authority.
"Traceability" means the property of a
result of a measurement whereby it can be related to appropriate standards,
generally international or national standards, through an unbroken chain of
comparisons.
"U.S. Environmental Protection Agency" means the
federal government agency with responsibility for protecting, safeguarding and
improving the natural environment (i.e., air, water and land) upon which human
life depends.
"Virginia Air Pollution Control Law" means Chapter
13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia, which is
titled "Air Pollution Control Board."
"Wastewater" means liquid and water-carried
industrial wastes and domestic sewage from residential dwellings, commercial
buildings, industrial and manufacturing facilities and institutions.
"Waterworks" means each system of structures and
appliances used in connection with the collection, storage, purification, and
treatment of water for drinking or domestic use and the distribution thereof to
the public, except distribution piping.
"Zooplankton" means microscopic animals that float
freely with voluntary movement in a body of water.
1VAC30-46-40. Definitions.
The definitions in the 2003 National Environmental Laboratory
Accreditation Conference (NELAC) standards, Chapter 1, Appendix A – Glossary,
are incorporated by reference into this section. Some of the definitions from
this glossary are included in this section because the terms are used
throughout this chapter. Where a term is defined in this section, the term
shall have no other meaning, even if it is defined differently in the Code of
Virginia or another regulation of the Virginia Administrative Code. Unless
specifically defined in this section, the terms used in this chapter shall have
the meanings commonly ascribed to them by recognized authorities.
"Accreditation" means the process by which an
agency or organization evaluates and recognizes a laboratory as meeting certain
predetermined qualifications or standards, thereby accrediting the laboratory.
"Accreditation" is the term used as a substitute for the term
"certification" under this chapter.
"Accrediting authority" means the territorial,
state, or federal agency having responsibility and accountability for
environmental laboratory accreditation and which grants accreditation.
"Acceptance criteria" means specified limits placed
on characteristics of an item, process, or service defined in requirement
documents.
"Algae" means simple single-celled, colonial, or
multicelled, mostly aquatic plants, containing chlorophyll and lacking roots,
stems and leaves that are either suspended in water (phytoplankton) or attached
to rocks and other substrates (periphyton).
"Analyte" means the substance or physical property
to be determined in samples examined.
"Analytical method" means a technical procedure for
providing analysis of a sample, defined by a body such as the Environmental
Protection Agency or the American Society for Testing and Materials, that may
not include the sample preparation method.
"Assessment" means the evaluation process used to
measure or establish the performance, effectiveness, and conformance of an
organization and its systems or both to defined criteria.
"Assessor" means the person who performs on-site
assessments of laboratories' capability and capacity for meeting the
requirements under this chapter by examining the records and other physical
evidence for each one of the tests for which accreditation has been requested.
"Authority" means, in the context of a governmental
body or local government, an authority created under the provisions of the
Virginia Water and Waste Authorities Act, Chapter 51 (§ 15.2-5100 et seq.)
of Title 15.2 of the Code of Virginia.
"Benthic macroinvertebrates" means bottom dwelling
animals without backbones that live at least part of their life cycles within
or upon available substrates within a body of water.
"Commercial environmental laboratory" means an
environmental laboratory where environmental analysis is performed for another
person.
"Corrective action" means the action taken to
eliminate the causes of an existing nonconformity, defect or other undesirable
situation in order to prevent recurrence.
"DGS-DCLS" means the Division of Consolidated
Laboratory Services of the Department of General Services.
"Environmental analysis" or "environmental
analyses" means any test, analysis, measurement, or monitoring used for
the purposes of the Virginia Air Pollution Control Law, the Virginia Waste
Management Act or the State Water Control Law (§ 10.1-1300 et seq., § 10.1-1400
et seq., and § 62.1-44.2 et seq., respectively, of the Code of Virginia).
For the purposes of these regulations, any test, analysis, measurement, or
monitoring required pursuant to the regulations promulgated under these three
laws, or by any permit or order issued under the authority of any of these laws
or regulations is "used for the purposes" of these laws. The term
shall not include the following:
1. Sampling of water, solid and chemical materials, biological
tissue, or air and emissions.
2. Field testing and measurement of water, solid and chemical materials,
biological tissue, or air and emissions, except when performed in an
environmental laboratory rather than at the site where the sample was taken.
3. Taxonomic identification of samples for which there is no
national accreditation standard such as algae, benthic macroinvertebrates,
macrophytes, vertebrates and zooplankton.
4. Protocols used pursuant to § 10.1-104.2 of the Code of
Virginia to determine soil fertility, animal manure nutrient content, or plant
tissue nutrient uptake for the purposes of nutrient management.
"Environmental laboratory" or
"laboratory" means a facility or a defined area within a facility
where environmental analysis is performed. A structure built solely to shelter
field personnel and equipment from inclement weather shall not be considered an
environmental laboratory.
"Establishment date" means the date set for the
accreditation program under this chapter and the certification program under
1VAC30-45 to be established.
"Establishment of accreditation program" or
"established program" means that DGS-DCLS has completed the initial
accreditation of environmental laboratories covered by this chapter and the
initial certification of environmental laboratories covered by 1VAC30-45.
"Facility" means something that is built or installed
to serve a particular function.
"Field of accreditation" means an approach to
accrediting laboratories by matrix, technology/method and analyte/analyte
group.
"Field of accreditation matrix" means the following
when accrediting a laboratory:
1. Drinking water. Any aqueous sample that has been designated
a potable or potential potable water source.
2. Nonpotable water. Any aqueous sample excluded from the
definition of drinking water matrix. Includes surface water, groundwater,
effluents, water treatment chemicals, and TCLP or other extracts.
3. Solid and chemical materials. Includes soils, sediments,
sludges, products and byproducts of an industrial process that results in a
matrix not previously defined.
4. Biological tissue. Any sample of a biological origin such
as fish tissue, shellfish, or plant material. Such samples shall be grouped
according to origin, i.e., by species.
5. Air and emissions. Whole gas or vapor samples including
those contained in flexible or rigid wall containers and the extracted
concentrated analytes of interest from a gas or vapor that are collected with a
sorbent tube, impinger solution, filter or other device.
"Field of proficiency testing" means an approach to
offer proficiency testing by matrix, technology/method, and analyte/analyte
group.
"Field testing and measurement" means any of the
following:
1. Any test for parameters under 40 CFR Part 136 for which the
holding time indicated for the sample requires immediate analysis; or
2. Any test defined as a field test in federal regulation.
The following is a limited list of currently recognized field
tests or measures that is not intended to be inclusive: continuous emissions
monitoring; on-line monitoring; flow monitoring; tests for pH, residual
chlorine, temperature and dissolved oxygen; and field analysis for soil gas.
"Finding" means a conclusion reached during an
on-site assessment that identifies a condition having a significant effect on
an item or activity. An assessment finding is normally a deficiency and is
normally accompanied by specific examples of the observed condition.
"Governmental body" means any department, agency,
bureau, authority, or district of the United States government, of the
government of the Commonwealth of Virginia, or of any local government within
the Commonwealth of Virginia.
"Holding time (or maximum allowable holding time)"
means the maximum time that a sample may be held prior to analysis and still be
considered valid or not compromised.
"Initial accreditation period" means the period
during which DGS-DCLS is accepting and processing applications for the first
time under this chapter as specified in 1VAC30-46-70.
"Legal entity" means an entity, other than a
natural person, who has sufficient existence in legal contemplation that it can
function legally, be sued or sue and make decisions through agents as in the
case of corporations.
"Local government" means a municipality (city or
town), county, sanitation district, or authority.
"Macrophytes" means any aquatic or terrestrial
plant species that can be identified and observed with the eye, unaided by
magnification.
"Matrix" means the component or substrate that
contains the analyte of interest.
"National accreditation database" means the
publicly accessible database listing the accreditation status of all
laboratories participating in NELAP.
"National Environmental Laboratory Accreditation
Conference (NELAC)" means a voluntary organization of state and federal
environmental officials and interest groups with the primary purpose to
establish mutually acceptable standards for accrediting environmental
laboratories. A subset of NELAP.
"National Environmental Laboratory Accreditation Program
(NELAP)" means the overall National Environmental Laboratory Accreditation
Program of which NELAC is a part.
"Noncommercial environmental laboratory" means
either of the following:
1. An environmental laboratory where environmental analysis is
performed solely for the owner of the laboratory.
2. An environmental laboratory where the only performance of
environmental analysis for another person is one of the following:
a. Environmental analysis performed by an environmental
laboratory owned by a local government for an owner of a small wastewater
treatment system treating domestic sewage at a flow rate of less than or equal
to 1,000 gallons per day.
b. Environmental analysis performed by an environmental
laboratory operated by a corporation as part of a general contract issued by a
local government to operate and maintain a wastewater treatment system or a
waterworks.
c. Environmental analysis performed by an environmental
laboratory owned by a corporation as part of the prequalification process or to
confirm the identity or characteristics of material supplied by a potential or
existing customer or generator as required by a hazardous waste management
permit under 9VAC20-60.
d. Environmental analysis performed by an environmental
laboratory owned by a Publicly Owned Treatment Works (POTW) for an industrial
source of wastewater under a permit issued by the POTW to the industrial source
as part of the requirements of a pretreatment program under Part VII
(9VAC25-31-730 et seq.) of 9VAC25-31.
e. Environmental analysis performed by an environmental
laboratory owned by a county authority for any municipality within the county's
geographic jurisdiction when the environmental analysis pertains solely to the
purpose for which the authority was created.
f. Environmental analysis performed by an environmental
laboratory owned by an authority or a sanitation district for any participating
local government of the authority or sanitation district when the environmental
analysis pertains solely to the purpose for which the authority or sanitation
district was created.
"Owner" means any person who owns, operates, leases
or controls an environmental laboratory.
"Person" means an individual, corporation,
partnership, association, company, business, trust, joint venture or other
legal entity.
"Physical," for the purposes of fee test
categories, means the tests to determine the physical properties of a sample.
Tests for solids, turbidity and color are examples of physical tests.
"Pretreatment requirements" means any requirements
arising under Part VII (9VAC25-31-730 et seq.) of 9VAC25-31 including the duty
to allow or carry out inspections, entry or monitoring activities; any rules,
regulations, or orders issued by the owner of a POTW; or any reporting
requirements imposed by the owner of a POTW or by the regulations of the State
Water Control Board. Pretreatment requirements do not include the requirements
of a national pretreatment standard.
"Primary accrediting authority" means the agency or
department designated at the territory, state or federal level as the
recognized authority with the responsibility and accountability for granting
NELAC accreditation to a specific laboratory for a specific field of
accreditation.
"Proficiency test or testing (PT)" means evaluating
a laboratory's performance under controlled conditions relative to a given set
of criteria through analysis of unknown samples provided by an external source.
"Proficiency test (PT) sample" means a sample, the
composition of which is unknown to both the analyst and the laboratory,
provided to test whether the analyst or laboratory or both can produce
analytical results within specified acceptance criteria.
"Proficiency testing (PT) program" means the
aggregate of providing rigorously controlled and standardized environmental
samples to a laboratory for analysis, reporting of results, statistical
evaluation of the results and the collective demographics and results summary
of all participating laboratories.
"Publicly Owned Treatment Works (POTW)" means a
treatment works as defined by § 212 of the CWA, which is owned by a state or
municipality (as defined by § 502(4) of the CWA). This definition includes any
devices and systems used in the storage, treatment, recycling, and reclamation
of municipal sewage or industrial wastes of a liquid nature. It also includes
sewers, pipes, and other conveyances only if they convey wastewater to a POTW
treatment plant. The term also means the municipality as defined in § 502(4) of
the CWA, which has jurisdiction over the indirect discharges to and the
discharges from such a treatment works.
"Quality assurance" means an integrated system of
activities involving planning, quality control, quality assessment, reporting
and quality improvement to ensure that a product or service meets defined
standards of quality with a stated level of confidence.
"Quality assurance officer" means the person who
has responsibility for the quality system and its implementation. Where
staffing is limited, the quality assurance officer may also be the technical
director.
"Quality control" means the overall system of
technical activities whose purpose is to measure and control the quality of a
product or service so that it meets the needs of users.
"Quality manual" means a document stating the
management policies, objectives, principles, organizational structure and
authority, responsibilities, accountability, and implementation of an agency,
organization, or laboratory, to ensure the quality of its product and the
utility of its product to its users.
"Quality system" means a structured and documented
management system describing the policies, objectives, principles, organizational
authority, responsibilities, accountability, and implementation plan of an
organization for ensuring quality in its work processes, products (items), and
services. The quality system provides the framework for planning, implementing,
and assessing work performed by the organization and for carrying out required
quality assurance and quality control.
"Quality system matrix," for purposes of batch and
quality control requirements, means the following:
1. Aqueous. Any aqueous sample excluded from the definition of
drinking water matrix or saline/estuarine source. Includes surface water,
groundwater, effluents, and TCLP or other extracts.
2. Drinking water. Any aqueous sample that has been designated
a potable or potential potable water source.
3. Saline/estuarine. Any aqueous sample from an ocean or
estuary, or other salt water source such as the Great Salt Lake.
4. Non-aqueous liquid. Any organic liquid with less than 15%
settleable solids.
5. Biological tissue. Any sample of a biological origin such as
fish tissue, shellfish, or plant material. Such samples shall be grouped
according to origin.
6. Solids. Includes soils, sediments, sludges and other
matrices with more than 15% settleable solids.
7. Chemical waste. A product or byproduct of an industrial
process that results in a matrix not previously defined.
8. Air and emissions. Whole gas or vapor samples including
those contained in flexible or rigid wall containers and the extracted
concentrated analytes of interest from a gas or vapor that are collected with a
sorbent tube, impinger solution, filter or other device.
"Recognition" means the mutual agreement of two or
more accrediting authorities to accept each other's findings regarding the
ability of environmental laboratories to meet NELAC standards.
"Responsible official" means one of the following,
as appropriate:
1. If the laboratory is owned or operated by a private
corporation, "responsible official" means (i) a president, secretary,
treasurer, or a vice-president of the corporation in charge of a principal
business function, or any other person who performs similar policy-making or
decision-making functions for the corporation or (ii) the manager of one or
more manufacturing, production, or operating facilities employing more than 250
persons or having gross annual sales or expenditures exceeding $25 million (in
second-quarter 1980 dollars), if authority to sign documents has been assigned
or delegated in accordance with corporate procedures.
2. If the laboratory is owned or operated by a partnership,
association, or a sole proprietor, "responsible official" means a
general partner, officer of the association, or the proprietor, respectively.
3. If the laboratory is owned or operated by a governmental
body, "responsible official" means a director or highest official
appointed or designated to oversee the operation and performance of the
activities of the governmental laboratory.
4. Any person designated as the responsible official by an
individual described in subdivision 1, 2 or 3 of this definition provided the
designation is in writing, the designation specifies an individual or position
with responsibility for the overall operation of the laboratory, and the
designation is submitted to DGS-DCLS.
"Sampling" means the act of collection for the purpose
of analysis.
"Sanitation district" means a sanitation district
created under the provisions of Chapters 3 (§ 21-141 et seq.) through 5 (§ 21-291
et seq.) of Title 21 of the Code of Virginia.
"Sewage" means the water-carried human wastes from
residences, buildings, industrial establishments or other places together with
such industrial wastes and underground, surface, storm, or other water as may
be present.
"Standard operating procedure (SOP)" means a
written document which details the method of an operation, analysis or action
whose techniques and procedures are thoroughly prescribed and which is accepted
as the method for performing certain routine or repetitive tasks.
"TCLP" or "toxicity characteristic leachate
procedure" means Test Method 1311 in "Test Methods for Evaluating
Solid Waste, Physical/Chemical Methods," EPA Publication SW-846, as
incorporated by reference in 40 CFR 260.11. This method is used to determine
whether a solid waste exhibits the characteristic of toxicity (see 40 CFR
261.24).
"Technical director (however named)" means the
person who has overall responsibility for the technical operation of the
environmental laboratory and who exercises actual day-to-day supervision of
laboratory operation for the appropriate fields of testing and reporting of
results. The title of this person may include but is not limited to laboratory
director, technical director, laboratory supervisor or laboratory manager.
"Technology" means a specific arrangement of
analytical instruments, detection systems, or preparation techniques, or any
combination of these elements.
"Test" means a technical operation that consists of
the determination of one or more characteristics or performance of a given
product, material, equipment, organism, physical phenomenon, process or service
according to a specified procedure.
"Test, analysis, measurement or monitoring required
pursuant to the Virginia Air Pollution Control Law" means any method of
analysis required by the Virginia Air Pollution Control Law (§ 10.1-1300
et seq.); by the regulations promulgated under this law (9VAC5), including any
method of analysis listed either in the definition of "reference
method" in 9VAC5-10-20, or listed or adopted by reference in 9VAC5; or by
any permit or order issued under and in accordance with this law and these
regulations.
"Test, analysis, measurement or monitoring required
pursuant to the Virginia Waste Management Act" means any method of
analysis required by the Virginia Waste Management Act (§ 10.1-1400 et
seq.); by the regulations promulgated under this law (9VAC20), including any
method of analysis listed or adopted by reference in 9VAC20; or by any permit
or order issued under and in accordance with this law and these regulations.
"Test, analysis, measurement or monitoring required
pursuant to the Virginia Water Control Law" means any method of analysis
required by the Virginia Water Control Law (§ 62.1-44.2 et seq.); by the
regulations promulgated under this law (9VAC25), including any method of
analysis listed or adopted by reference in 9VAC25; or by any permit or order
issued under and in accordance with this law and these regulations.
"Test method" means an adoption of a scientific
technique for performing a specific measurement, as documented in a laboratory
standard operating procedure or as published by a recognized authority.
"U.S. Environmental Protection Agency (U.S. EPA or
EPA)" means the federal government agency with responsibility for
protecting, safeguarding and improving the natural environment (i.e., air, water
and land) upon which human life depends.
"Virginia Air Pollution Control Law" means Chapter
13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia which is
titled "Air Pollution Control Board."
"Wastewater" means liquid and water-carried
industrial wastes and domestic sewage from residential dwellings, commercial
buildings, industrial and manufacturing facilities and institutions.
"Waterworks" means each system of structures and
appliances used in connection with the collection, storage, purification, and
treatment of water for drinking or domestic use and the distribution thereof to
the public, except distribution piping.
"Zooplankton" means microscopic animals that float
freely with voluntary movement in a body of water.
VA.R. Doc. No. R13-3359; Filed September 24, 2012, 1:48 p.m.
w –––––––––––––––––– w
TITLE 4. CONSERVATION AND NATURAL RESOURCES
DEPARTMENT OF MINES, MINERALS AND ENERGY
Proposed Regulation
Title of Regulation: 4VAC25-31. Reclamation
Regulations for Mineral Mining (amending 4VAC25-31-10, 4VAC25-31-100,
4VAC25-31-110, 4VAC25-31-130, 4VAC25-31-140, 4VAC25-31-150, 4VAC25-31-170,
4VAC25-31-190, 4VAC25-31-260, 4VAC25-31-290, 4VAC25-31-330, 4VAC25-31-360,
4VAC25-31-380, 4VAC25-31-420, 4VAC25-31-460, 4VAC25-31-490, 4VAC25-31-500,
4VAC25-31-510, 4VAC25-31-530, 4VAC25-31-540, 4VAC25-31-550; adding
4VAC25-31-405, 4VAC25-31-505).
Statutory Authority: §§ 45.1-161.3 and 45.1-180.3
of the Code of Virginia.
Public Hearing Information:
December 4, 2012 - 10 a.m. - Department of Mines, Minerals
and Energy, Division of Mineral Mining, Fontaine Research Park, 900 Natural
Resources Drive, Charlottesville, VA
Public Comment Deadline: December 21, 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.
Basis: The Department of Mines, Minerals and Energy
(DMME) has authority to promulgate this regulation under the authority found in
§ 45.1-161.3 of the Code of Virginia. Section 45.1-180.3 of the Code of
Virginia gives the Director of DMME specific authority over the
reclamation of mineral mines.
Purpose: The purpose of the amended regulation is to
ensure that public health and safety is maintained by ensuring mineral mining
reclamation standards are updated to reflect current industry best practices.
Substance: The agency's commitment to offering
electronic services to customers requires certain sections to be amended to
facilitate the use of electronic forms. Other sections will be reorganized or
reworded to make them clearer. Obsolete information, such as agency addresses
that have changed, will be corrected. Sections dealing with reclamation
standards and post-mining land use will be clarified and strengthened to assure
adequate protection of the environment. The agency is also allowing an additional
type of financial instrument to be used as bond.
Issues: The proposed changes will improve the water
quality for the state waters of Virginia. The proposed changes will also
provide additional flexibility to the regulated businesses by increasing their
ability to conduct business electronically and by allowing an additional
acceptable form of bonding.
DMME will benefit by improvements in its ability to conduct
business electronically. The proposed changes coordinate definitions and
requirements of other state agencies (Department of Conservation and Recreation
and Department of Environmental Quality) to make compliance easier during
mining and after mining.
There are no disadvantages to the public or the Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. As the result
of a periodic review, the Department of Mines, Minerals and Energy (Department)
proposes numerous changes to these regulations. Many of the proposed changes
involve clarifications, additions and modifications to definitions, updating of
citations, elimination of obsolete language, etc. Additionally the Department
proposes to: 1) specify that areas that are disturbed (by mining activities)
shall be provided with an undisturbed riparian buffer, 50 feet in width, along
both sides of a perennial stream, 2) add irrevocable letters of credit as an
acceptable form of performance bond, 3) add and modify language to enable
mineral mining permits and permit applications to be submitted electronically,
and 4) require operators to notify the Division of Mineral Mining (Division)
immediately if an impoundment suffers a partial or complete failure.
Result of Analysis. The benefits likely exceed the costs for
one or more proposed changes. There is insufficient data to accurately compare
the magnitude of the benefits versus the costs for other changes.
Estimated Economic Impact. The current regulations specify that
all intermittent or perennial streams shall be protected from spoil by natural
or constructed barriers. The Department proposes to additionally state that
Areas disturbed after the effective date of this regulation
shall provide an undisturbed riparian buffer, 50 feet in width, along both
sides of a perennial stream unless otherwise approved by the director. Areas
disturbed prior to the effective date shall provide the aforementioned riparian
buffer upon reclamation, in accordance with the approved post-mining land use.
A riparian buffer is defined as an area of trees, shrubs or
other vegetation that is managed to maintain the integrity of the stream
channel and reduce the effects of upland sources of pollution by trapping,
filtering, and converting sediments, nutrients, and other chemicals.
The Department estimates the cost of riparian buffer compliance
at less than $1,000 per affected site. There are currently about 430 active
permitted sites. Approximately 230 of the sites are within the Chesapeake Bay
watershed, and would already fall under existing riparian buffer standards for
that watershed.1 These sites would not be affected by the proposed
new language. The Department estimates that approximately 10% of the 200 sites
outside the Chesapeake Bay watershed, or an estimated 20 sites, would be
affected. Thus the total aggregated cost for all of the permitted site owners
would likely be less than $20,000.2 The riparian buffers are likely
to have a positive impact on the quality of waters passing through or adjacent
to these mine sites. This may have a positive impact on public health and the
surrounding ecosystem. The dollar value of potential improvement to public
health and the local ecosystem cannot be easily measured, but likely exceeds
the aggregated compliance cost of less than $20,000.
The current regulations require that once a mineral permit
application is deemed complete, the applicant shall submit a bond or bonds that
cover the entire area presently disturbed by mining plus the estimated number
of acres to be disturbed in the upcoming year. As additional areas outside the
bonded acreage are to be disturbed to facilitate the mining operation, the
permittee must file a bond or bonds to cover the acreage with the division.
Permitted operators must certify annually with the permit renewal the type,
current insurer or bank, and the amount of all reclamation bonds. Pursuant to a
request from operators, the Department proposes to add irrevocable letters of
credit as an acceptable form of bond. This will likely lower costs for mine
owner/operators while still assuring that funds are available for site
reclamation. This proposal will thus create a net benefit.
The Department proposes to add and modify language to enable
mineral mining permits and permit applications to be submitted electronically.
The current regulations specify that submissions be made in writing. This
proposed change will enable improved efficiency and reduced time costs.
The Department proposes to require that if upon examination an
operator determines that a water impounding structure has failed partially or completely,
the incident must be reported to the Division immediately. In practice
operators have not always immediately notified the Division upon the discovery
of impounding structure failures.3 By putting this into regulation
it will become perfectly clear that operators should do so; and it gives
operators added incentive to do so in that the Department can take punitive
action for noncompliance. Immediate knowledge will enable the Division to act
sooner and to reduce potential risk to public safety. The cost of immediate
notification is negligible while the benefits may be substantial in that it may
reduce significant risk to public safety and potential property damage.
Businesses and Entities Affected. The proposed amendments
potentially affect any permitted mine site that has a perennial stream passing
through or bordering on the permit. The Department currently has about 430
active permitted sites. Approximately 10% of the 200 sites in the western
portion of the state would be affected, or an estimated 20 sites. Approximately
230 sites are within the Chesapeake Bay watershed, and would already fall under
existing riparian buffer standards for that watershed. Outside firms that are
contracted in order to implement riparian buffers are potentially affected as
well.
Localities Particularly Affected. Localities outside of the
Chesapeake Bay watershed with current or potential mining activity will be
particularly affected.
Projected Impact on Employment. Some outside firms may be
contracted in order to build riparian buffers. The additional business may
modestly increase employment at a few of these firms.
Effects on the Use and Value of Private Property. Some outside
firms may be contracted in order to build riparian buffers. The additional
business may moderately increase the value of these firms.
Small Businesses: Costs and Other Effects. Owners of
approximately 20 mining sites outside of the Chesapeake Bay watershed will face
higher costs due to the proposed riparian buffer requirement. Small firms which
may be contracted to help build the riparian buffers would likely benefit. The
proposal to add irrevocable letters of credit as an acceptable form of
performance bond will likely reduce costs for some small site owners.
Small Businesses: Alternative Method that Minimizes Adverse
Impact. Owners of approximately 20 mining sites outside of the Chesapeake Bay
watershed will face higher costs due to the proposed riparian buffer
requirement. The proposed riparian buffer requirement is intended for improved
water quality. There is no obvious alternative that would commensurately
improve water quality at a lower cost.
Real Estate Development Costs. Adding irrevocable letters of
credit as an acceptable form of performance bond may moderately reduce the cost
of developing land for mining for some owners. On the other hand, requiring
riparian buffers will add costs for developing certain affected sites for
mining.
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:
Department of Mines, Minerals and Energy
2 $1,000 x
20 = $20,000
3 Source:
Department of Mines, Minerals and Energy
Agency's Response to Economic Impact Analysis: The
Department of Mines, Minerals and Energy concurs with the economic impact
analysis conducted by the Department of Planning and Budget.
Summary:
The proposed amendments facilitate the use of electronic
permitting and forms and clarify reclamation and post-mining land use
requirements. Obsolete items, such as addresses that have changed, are updated.
The proposal also expands the types of financial instruments that can be used
for performance bonds.
Part I
General Provisions
4VAC25-31-10. Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise:
"Acre-foot" means a unit of volume equal to 43,560
cubic feet or 325,853 gallons. One acre-foot of water is equivalent to one acre
covered by water one foot deep.
"Berm" means a stable ridge of material used in
reclamation for the control of sound and surface water, safety, aesthetics, or
such other purpose as may be applicable.
"Critical areas" mean problem areas such as those
with steep slopes, easily erodible material, hostile growing conditions,
concentration of drainage or other situations where revegetation or
stabilization will be potentially difficult.
"Dam break inundation zone" means the area
downstream of a dam that would be inundated or otherwise directly affected by
the failure of a dam.
"Department" means the Department of Mines,
Minerals and Energy.
"Director" means the Director of the Department of
Mines, Minerals and Energy or his designee.
"Division" means the Division of Mineral Mining.
"Fifty-year storm" means the storm magnitude
expected to be equaled or exceeded on the average of once in 50 years. It may
also be expressed as a probability that there is a 2.0% chance that the storm
magnitude may be equaled or exceeded in any given year. A 50-year, 24-hour
storm occurs when the total 50-year storm rainfall occurs in a 24-hour period.
"Inert waste" means brick, concrete block,
broken concrete, asphalt paving, and uncontaminated minerals or soil.
"Intermittent stream" means a stream or part of
a stream that flows for at least one month of the calendar year as a result of
ground water discharge or surface run-off that contains flowing water
for extended periods during a year, but does not carry flows at all times.
"Internal service roads" mean roads that are to be
used for internal movement of raw materials, soil, overburden, finished, or
in-process materials within the permitted area, some of which may be temporary.
"Natural drainageway" means any natural or existing
channel, stream bed, or watercourse that carries surface or ground water.
"One hundred-year storm" means the storm magnitude
expected to be equaled or exceeded on the average of once in 100 years. It may
also be expressed as a probability that there is a 1.0% chance that the storm
magnitude may be equaled or exceeded in any given year. A 100-year, 24-hour
storm occurs when the total 100-year storm rainfall occurs in a 24-hour period.
"On-site generated mine waste" means the
following items generated by mineral mining or processing activities taking
place on the permitted mine site:
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Drill steel
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Tree stumps/land clearing debris
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Crusher liners
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Large off-road tires
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Conveyor belting
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Scrap wood or metal
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Steel cable
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Steel reinforced air hoses
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Screen cloth
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Broken concrete or block
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Punch plate
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V-belts
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"Perennial stream" means a stream or part of a
stream that flows continuously during all of the calendar year as a result of
ground water discharge or surface run-off well-defined channel that
contains water year round during a year of normal rainfall. Generally, the
water table is located above the streambed for most of the year and groundwater
is the primary source for stream flow. A perennial stream exhibits the typical
biological, hydrological, and physical characteristics commonly associated with
the continuous conveyance of water.
"Permitted area" means the area within the defined
boundary shown on the application map including all disturbed land area, and
areas used for access roads and other mining-related activities.
"Principal access roads" mean roads that are
well-defined roads leading from scales, sales offices, or loading points to a
public road.
"Probable maximum flood (PMF)" means the flood that
might be expected from the most severe combination of critical meteorologic and
hydrologic conditions that are reasonably possible in the region. The PMF is
derived from the current probable maximum precipitation (PMP) available
from the National Weather Service, National Oceanic and Atmospheric Association
Administration. In some cases local topography or meteorological
conditions will cause changes from the generalized PMP values; therefore, it is
advisable to contact local, state, or federal agencies to obtain the prevailing
practice in specific cases.
"Qualified person" means a person who is suited by
training or experience for a given purpose or task.
"Regrade" or "grade" means to change the
contour of any surface.
"Riparian buffer" means an area of trees,
shrubs, or other vegetation that is managed to maintain the integrity of the
stream channel and reduce the effects of upland sources of pollution by
trapping, filtering, and converting sediments, nutrients, and other chemicals.
"Sediment" means undissolved organic or inorganic
material transported or deposited by water.
"Sediment basin" means a basin created by the
construction of a barrier, embankment, or dam across a drainageway or by
excavation for the purpose of removing sediment from the water.
"Spillway design flood (SDF)" means the largest
flood that needs be considered in the evaluation of the performance for a given
project. The impounding structure shall perform so as to safely pass the
appropriate SDF. Where a range of SDF is indicated, the magnitude that most
closely relates to the involved risk should be selected.
"Stabilize" means any method used to prevent
movement of soil, spoil piles, or areas of disturbed earth. This includes
increasing bearing capacity, increasing shear strength, draining, compacting,
rip-rapping, vegetating or other approved method.
"State waters" means all water, on the surface
and under the ground, wholly or partially within or bordering the Commonwealth
or within its jurisdiction, including wetlands.
"Ten-year storm" means the storm magnitude expected
to be equaled or exceeded on the average of once in 10 years. It may also be
expressed as a probability that there is a 10% chance that the storm magnitude
may be equaled or exceeded in any given year. A 10-year 24-hour storm occurs
when the total 10-year storm rainfall amount occurs in a 24-hour period.
"Top soil" means the surface layer and its
underlying materials that have properties capable of producing and sustaining
vegetation.
4VAC25-31-100. Mineral mining permits.
Permits shall be renewed annually, in a manner acceptable
to the director, to continue to remain in effect.
4VAC25-31-110. Permit application.
Application for a mineral mining permit shall be made in writing
on a form prescribed by the director and shall be signed and sworn to
certified by the applicant or his duly sworn authorized
representative. Two copies Copies of the application shall be
submitted to the division in a manner acceptable to the director.
4VAC25-31-130. Mineral mining plans.
Mineral mining plans shall be attached to the application and
consist of the following:
1. The reclamation plan shall include a statement of the
planned land use to which the disturbed land will be returned through
reclamation, the proposed actions to assure suitable reclamation, and a time
schedule for reclamation. The method of grading, removal of metal, lumber, and
debris, including processing equipment, buildings, and other equipment relative
to the mining operation and revegetation of the disturbed area shall be
specified.
2. 1. The operation plan shall include a
description of the proposed method of mining and processing; the location of
top soil storage areas; overburden, refuse and waste disposal areas;
stockpiles, equipment storage, and maintenance areas; cut and fill slopes; and
roadways. The operation plan shall also include all related design and
construction data. The method of operation shall provide for the conducting of
reclamation simultaneously where practicable with the mining operation. For the
impoundments that meet the criteria of § 45.1-225.1 A of the Code of Virginia,
plans shall be provided as required under 4VAC-25-31-180 and 4VAC25-31-500.
3. 2. The drainage plan shall consist of a
description of the drainage system to be constructed before, during and after
mining, a map or overlay showing the natural drainage system, and all sediment
and drainage control structures to be installed along with all related design
and construction data.
3. The reclamation plan shall include a statement of the
planned land use to which the disturbed land will be returned through
reclamation, the proposed actions to assure suitable reclamation, and a time
schedule for reclamation. The method of grading, removal of metal, lumber, and
debris, including processing equipment, buildings, and other equipment relative
to the mining operation and revegetation of the disturbed area shall be
specified.
4. Adequate maps, plans and cross sections, and construction
specifications shall be submitted to demonstrate compliance with the
performance standards of Part IV (4VAC25-31-330 et seq.) of this chapter and
Chapter 16 (§ 45.1-180 et seq.) of Title 45.1 of the Code of Virginia. Designs,
unless otherwise specified, shall be prepared by a qualified person, using accepted
engineering design standards and specifications.
5. A copy of the Virginia Department of Transportation land
use permit for roads that connect to public roads.
6. If mining below the water table is to take place, the
following conditions apply:
a. The application shall contain an assessment of the
potential for impact on the overall hydrologic balance from the proposed
operations to be conducted within the permitted area.
b. A plan for the minimization of adverse affects on water
quality or quantity shall be prepared based on the assessment in subdivision 6a
6 a of this section and included in the application.
c. In no case shall Permanent lakes or ponds be
created if they are less by mining shall be equal to or greater
than four feet deep, except when creation of wetlands is approved as part of
the post-mining land use or otherwise constructed in a manner acceptable
to the director.
4VAC25-31-140. Marking of permit boundaries.
A. The permit boundary of the mine shall be clearly marked
with identifiable markings when mine related land disturbing activities are
within 100 feet of the permit boundary.
B. This section is not applicable to lands disturbed prior to
the effective date of this regulation September 11, 2003.
C. Maintenance of permit boundary markers is not required
after completion of construction, completion of final disturbances, or
completion of final reclamation unless the area is being redisturbed by mining.
D. Separate boundary markings are not required if clear,
readily identifiable features, such as streams, permanent roads, or permanent
power lines coincide with the permit boundary.
4VAC25-31-150. Maps.
A. Maps shall be supplied as described in §§ 45.1-181 and
45.1-182.1 of the Code of Virginia and in this chapter that show the total area
to be permitted and the area to be affected in the next ensuing year (with
acreage calculated).
B. Preparation of maps.
1. All application, renewal, and completion maps shall be
prepared and certified under the direction of a professional engineer, licensed
land surveyor, licensed geologist, issued by a standard mapping service, or
prepared in such a manner as to be acceptable to the director.
2. If maps are not prepared by the applicant, the
certification of the maps shall read as follows: "I, the undersigned,
hereby certify that this map is correct and shows to the best of my knowledge
and belief, all the information required by the mineral mining laws and
regulations of the DMME."
3. The applicant shall submit a general location map showing
the location of the mine, such as a county highway map or equivalent, in the
initial application.
4. Sensitive features within 1,000 500 feet of
the permit boundary such as including state waters, cemeteries,
oil and gas wells, underground mine workings, streams, creeks and other
bodies of public water, public utilities and utility lines, public
buildings, public roads, schools, churches, and occupied
dwellings shall be shown. Delineated wetlands within the permit boundary
shall be shown. All properties, and their owners, within 1,000 feet of the
permit boundary shall be identified.
C. Map code and legend.
1. A color code as prescribed by the director shall be used in
preparing the map.
2. Graphic symbols may be used to represent the different
areas instead of a color-coded map.
3. The map shall include a legend that shows the graphic
symbol or color code and the acreage for each of the different areas.
4VAC25-31-170. Permit application notifications.
A. The following shall be made with a new permit application:
1. Notification to property owners within 1,000 feet of the
permit boundary by certified mail. A record shall be kept of:
a. The names and addresses of those notified, and
b. The certified mail return receipts used for the
notification.
2. A statement as required by § 45.1-184.1 of the Code of
Virginia to property owners that requires land owners within 1,000 feet of the
permit boundary to be notified that the operator is seeking a surface mining
and reclamation permit from the Department of Mines, Minerals and Energy. The
statement shall also include:
a. Company name;
b. Date;
c. Location;
d. Distance and direction of nearest town or other easily
identified landmark;
e. City or county;
f. Tax map identification number; and
g. Requirements for (i) regrading; (ii) revegetation; and
(iii) erosion controls of mineral mine sites.
h. A notice that informs property owners that they have 10
days from receipt of the permit notification to specify written objections or
request a hearing. This request shall be in writing and shall be sent to the
Department of Mines, Minerals and Energy, Division of Mineral Mining, P.O.
Box 3727, Charlottesville, Virginia 22903, (434) 951-6310.
B. Applicants will provide a copy of the permit
notification to the division at the time they are mailed to the neighboring
landowners.
B. C. A statement, with certified mail receipt,
certifying that the chief administrative official of the local political subdivision
has been notified.
C. D. Notification shall be made to any public
utilities on or within 500 1,000 feet of the permitted area. The
notification shall consist of the following:
1. The name of the party issuing the notice;
2. The applicant name, address, and phone number; and
3. The name and address of the party receiving the notice and
the information noted in subdivision A 2 of this section.
D. E. No permit will be issued until at least
15 days after receipt of the application by the division. If all persons
required to receive notice have issued a statement of no objection, the permit
may be issued in less than 15 days.
E. F. Copies of all permit notifications and
statements required in subsections A through C D of this section
shall be supplied to the department division with the
application.
4VAC25-31-190. Availability of permits.
Mineral mining permits and, a copy of the
permit application, and a copy of the approved mineral mining plan shall
be kept on-site while mining is underway.
4VAC25-31-260. Form of performance bond.
The bond shall be submitted in the form of cash, check,
certificate of deposit, or insurance surety bond, or irrevocable
letter of credit.
A. Certificates of deposit.
1. Certificates of deposit must be made payable to the
Treasurer of Virginia, Division of Mineral Mining.
2. The amount of the certificate of deposit must include the
maximum early withdrawal penalty rounded up to the next higher hundred dollars.
3. The original certificate of deposit shall be submitted to
the division and held by the division throughout the bond liability period.
4. Certificates of deposit must be automatically renewable.
5. The certificate of deposit must be from a bank located in
the Commonwealth of Virginia or approved as an allowable bank depository by the
Virginia Department of Treasury.
6. Interest accrued on certificates of deposit may be
deposited to the permittee's individual account and is free of encumbrance by
bond liability.
7. In the event of forfeiture of a certificate of deposit, the
face value of the deposit plus any accrued interest that has been rolled back
into the certificate principal will be subject to bond liability and
expenditure in the performance of the reclamation obligation.
B. Surety bonds.
1. All bonds shall be in a form acceptable by to
the director. Bonds shall be executed by the permittee, and a corporate surety
and agent licensed to do business in the Commonwealth.
2. Surety bonds shall not be canceled during their term except
that surety bond coverage for lands not disturbed may be canceled with the
prior consent of the division. The division shall advise the surety, within 30
days after receipt of a notice to cancel bond, whether the bond may be canceled
on an undisturbed area.
C. Irrevocable letter of credit.
1. The director may accept a letter of credit on certain
designated funds issued by a financial institution authorized to do business in
the Commonwealth. The letter of credit shall be irrevocable and unconditional,
shall be payable to the division on demand, and shall afford to the division
protection equivalent to a corporate surety bond. The issuer of the letter of
credit shall give prompt notice to the permittee and the division of any notice
received or action filed alleging the insolvency or bankruptcy of the issuer,
or alleging any violations of regulatory requirements that could result in the
suspension or revocation of the issuer's charter or license to do business. In
the event the issuer becomes unable to fulfill its obligations under the letter
of credit for any reason, the issuer shall immediately notify the permittee and
the division. Upon the incapacity of an issuer by reason of bankruptcy,
insolvency, or suspension or revocation of its charter or license, the
permittee shall be deemed to be without proper performance bond coverage and
shall promptly notify the division, and the division shall then issue a notice
to the permittee specifying a reasonable period, which shall not exceed 90
days, to replace bond coverage. If an adequate bond is not posted by the end of
the period allowed, the permittee shall cease mineral extraction and mineral
processing operations and shall immediately begin to conduct reclamation
operations in accordance with the reclamation plan. Mineral extraction and
mineral processing operations shall not resume until the division has
determined that an acceptable bond has been posted. If an acceptable bond has
not been posted by the end of the period allowed, the division may suspend the
permit until acceptable bond is posted.
2. The letter of credit shall be provided on the form and
in the format established by the director.
3. Nothing contained in this section shall relieve the
permittee of responsibility under the permit or the issuer of liability on the
letter of credit.
4VAC25-31-290. Intensive agricultural use.
If the post-mining use is to be intensive agriculture, then
planting and harvesting of a normal crop yield is required to meet the
regulatory requirements for full or partial bond release. A normal yield for a
particular crop is equal to the five-year average for the county. If crop
yield data is unavailable, then other methods to determine suitability for bond
release may be utilized as acceptable to the director. The use of grass,
water bars, or diversion strips and natural vegetative drainage control may be
required in the initial planting year as specified by the director.
Part IV
Performance Standards
4VAC25-31-330. Protected structures and sensitive features.
Mining activities shall be conducted in a manner that
protects state waters, cemeteries, oil and gas wells, underground
mine workings, public utilities, and utility lines, public
buildings, public roads, schools, churches, and occupied
dwellings.
4VAC25-31-360. Operation and reclamation.
A. Mining operations shall be conducted to minimize adverse
effects on the environment and facilitate integration of reclamation with
mining operations according to the special requirements of individual mineral
types. Mining shall be conducted to minimize the acreage that is disturbed and
reclamation shall be conducted simultaneously with mining to the extent
feasible.
B. Open pit mining of unconsolidated material shall be
performed in such a way that extraction and reclamation are conducted
simultaneously.
C. Mining activities shall be conducted so that the impact on
water quality and quantity are minimized. Mining below the water table shall be
done in accordance with the mining plan under 4VAC25-31-130.
D. In no case shall lakes or ponds of water be created
that are less than four feet deep, unless wetlands are formed as part of the
approved post-mining land use Permanent lakes or ponds created by mining
shall be equal to or greater than four feet deep, or otherwise constructed in a
manner acceptable to the director.
E. Excavation shall be done in such a manner as to keep storm
drainage flowing toward sediment control structures. Diversions shall be used
to minimize storm run-off over disturbed areas.
F. The mining operation shall be planned to enhance the
appearance to the public during mining and to achieve simultaneous and final
reclamation.
G. At the completion of mining, all entrances to underground
mines shall be closed or secured and the surface area reclaimed in accordance
with the mineral mining plan.
H. Reclamation shall be completed to allow the post-mining
land use to be implemented. After reclamation, the post mining land use shall
be achievable and compatible with surrounding land use. All necessary permits
and approvals for the post-mining land use shall be obtained prior to
implementation.
4VAC25-31-380. Treatment of acid material.
All acid material, which is part of or directly associated
with the mineral deposit or deposits being mined, encountered during the
mining operation shall be properly controlled during mining and upon
to prevent adverse impacts on surface or groundwater quality. Upon
completion of mining, acid materials shall be covered with a material
capable of shielding the acid material them and supporting plant
cover in accordance with the approved reclamation plan. Unless otherwise
specified by the director, the minimum cover shall be four feet in depth.
4VAC25-31-405. Disposal of waste.
On-site generated waste shall not be disposed of within
the permitted mine area without prior approval. Off-site generated inert waste
shall not be brought onto the mine permitted area or disposed of on the mine
permitted area without prior approval.
4VAC25-31-420. Screening.
A. Screening shall be provided for sound absorption and to
improve the appearance of the mining site from public roads, public buildings,
recreation areas, and occupied dwellings.
B. If screening is to be undisturbed forest, a distance of
100 feet must be left undisturbed within the permit boundary. Less than 100
feet may be approved if the natural vegetation provides the needed screening
benefits between the mining operation and the adjacent property. Planted earth
berms, tree plantings, natural topography, or appropriately
designed fences or walls may be used if approved in the mineral mining plan.
C. On permanent berms for screening, the spoils (waste
materials) shall be initially placed on the proposed berm area and top soil
(where available) shall be spread over the spoil areas, not less than four
six inches in thickness, and if possible, 12 inches in thickness. The
remaining top soil shall be placed in a designated area for future spreading on
other areas which need top dressing. The top soil shall be seeded or planted in
accordance with the approved reclamation plan.
4VAC25-31-460. Intermittent or perennial streams.
All intermittent or perennial streams shall be protected from
spoil by natural or constructed barriers. Areas disturbed after (the
effective date of this regulation) shall provide an undisturbed riparian
buffer, 50 feet in width, along both sides of a perennial stream unless
otherwise approved by the director. Areas disturbed prior to (the effective
date) shall provide the aforementioned riparian buffer upon reclamation, in
accordance with the approved post-mining land use. Stream channel
diversions shall safely pass the peak run-off from a 10-year, 24-hour storm.
Stream channel diversions shall be at least equal to the capacity of the
unmodified stream channel immediately upstream and downstream of the diversion.
4VAC25-31-490. Water quality.
The pH of all water discharge resulting from the mining of
minerals shall be between pH 6.0 and pH 9.0 unless otherwise approved by the
director. In addition, discharges shall be in compliance with applicable
standards established by the Department of Environmental Quality
(4VAC25-260-20).
4VAC25-31-500. Water impoundments.
A. Structures that impound water or sediment to a height of
five feet or more above the lowest natural ground area within the impoundment
and have a storage volume of 50 acre-feet or more, or impound water or sediment
to a height of 20 feet or more regardless of storage volume, shall meet the
following criteria (noted in Chapter 18.1 (§ 45.1-225.1 et seq.) of Title 45.1
of the Code of Virginia):
1. Impoundments meeting or exceeding the size criteria set
forth in this section shall be designed utilizing a spillway flood and hazard
potential classification as specified in the following table:
|
Class of Impoundment*
|
Hazard Potential if Failure Occurred
|
Size Classification** Spillway Design Flood (SDF)**
|
Spillway Design Flood (SDF)*** Minimum Threshold
for Incremental Damage Analysis ***
|
|
Capacity (ac-ft)
|
Height
|
|
|
I High Hazard
|
Probable loss of life
Extensive off-site effect
|
A) >1000 PMF
B) > 500
C) > 50
D) < 50
|
> 40 ft
< 40 ft
> 5 ft
> 20 ft
|
.50 PMF
0.5 PMF-PMF
0.5 PMF-PMF
100 yr - 0.5 PMF
|
|
II Significant Hazard
|
Probable loss of life
Appreciable off-site effects
|
A) >1000 .50 PMF
B) > 500
C) > 50
D) < 50
|
> 40 ft
< 40 ft
> 5 ft
> 20 ft
|
0.5 PMF-PMF 100 year storm
100 yr - 0.5 PMF
100 yr - 0.5 PMF
100 yr
|
|
III Low Hazard
|
No loss of life
Minimal off-site effect
|
A) >1000 100 year storm
B) > 500
C) > 50
D) < 50
|
> 40 ft
< 40 ft
> 5 ft
< 20 ft
|
100 yr - 0.5 PMF 50 year storm
100 yr
100 yr
50 yr - 100 yr
|
|
*Size and hazard potential classifications shall be proposed
and justified by the operator and shall be subject to approval by the
director. Present and projected development in the inundation zone downstream
from the structure shall be used in determining the classification.
**The factor determining the largest size classification
shall govern **The complete definitions of hazard potential are those
contained in 4VAC50-20-40.
***The establishment of rigid design flood criteria or
standards is not intended. Safety must be evaluated in the light of
peculiarities and local conditions for each impounding structure and in
recognition of the many factors involved, some of which may not be precisely
known. Such can only be done by competent, experienced engineering judgment,
which the values in the table are intended to add to, not replace.
|
Reductions in the SDF may be
evaluated by use of incremental damage analysis described in 4VAC50-20-52. Note
that future development downstream may increase the required SDF.
2. Impounding structures shall be constructed, operated, and
maintained such that they perform in accordance with their design and purpose
throughout their life.
a. Impoundments shall be designed and constructed by or under
the direction of a qualified registered professional engineer licensed
in Virginia and experienced in the design and construction of impoundments.
b. The designs shall meet the requirements of this section and
use current prudent engineering practices.
c. The plans and specifications for an impoundment shall
consist of a detailed engineering design report that includes engineering
drawings and specifications, with the following as a minimum:
(1) The name of the mine; the name of the owner;
classification of the impounding structure as set forth in this regulation;
designated access to the impoundment and the location with respect to highways,
roads, streams and existing impounding structures and impoundments that would
affect or be affected by the proposed impounding structure.
(2) Cross sections, profiles, logs of test borings, laboratory
and in situ test data, drawings of principal and emergency spillways and other
additional drawings in sufficient detail to indicate clearly the extent and
complexity of the work to be performed.
(3) The technical provisions as may be required to describe
the methods of the construction and construction quality control for the
project.
(4) Special provisions as may be required to describe
technical provisions needed to ensure that the impounding structure is
constructed according to the approved plans and specifications.
d. Components of the impounding structure, the impoundment,
the outlet works, drain system and appurtenances shall be durable in keeping
with the design and planned life of the impounding structure.
e. All new impounding structures regardless of their hazard
potential classification, shall include a device to permit draining of
the impoundment within a reasonable period of time, and at a minimum shall
be able to lower the pool level six vertical inches per day, as determined
by the owner's professional engineer, subject to approval by the director.
f. Impoundments meeting the size requirements and hazard
potential of Class I, Class II and Class III high, significant, or
low shall have a minimum static safety factor of 1.5 for a normal pool with
steady seepage saturation conditions and a seismic safety factor of 1.2.
g. Impoundments shall be inspected and maintained to ensure
that all structures function to design specifications.
h. Impoundments shall be constructed, maintained and inspected
to ensure protection of adjacent properties and preservation of public safety
and shall meet proper design and engineering standards under Chapter 18.1 (§ 45.1-225.1
et seq.) of Title 45.1 of the Code of Virginia. Impoundments shall be inspected
at least daily by a qualified person, designated by the licensed operator, who
can provide prompt notice of any potentially hazardous or emergency situation
as required under § 45.1-225.2 of the Code of Virginia. Records of the
inspections shall be kept and certified by the operator or his agent.
i. The operator will prepare an Emergency Action Plan (EAP)
that includes the following information:
(1) A notification chart of persons or organizations to be
notified, the person or persons responsible for notification, and the priority
in which notifications are issued. Notifications shall include at a
minimum the division, the local government authority responsible for emergency
response, and the Virginia Department of Emergency Management.
(2) A discussion of the procedures used for timely and
reliable detection, evacuation, and classification of emergency situations
considered to be relevant to the structure and its setting.
(3) Designation of responsibilities for EAP related
tasks. Also, the EAP shall designate the responsible party for making a
decision that an emergency situation no longer exists at the impounding
structure. Finally, the EAP shall include the responsible party and the
procedures for notifying to the extent possible any known local occupants,
owners, or lessees of downstream properties potentially impacted by a failure
of the impounding structure.
(4) A section describing actions to be taken in preparation
for impoundment emergencies, both before and during the development of
emergency conditions.
(5) Dam break inundation maps. Each sheet of such maps for
high and significant potential hazard classification structures shall be
prepared and sealed by a professional engineer. Where possible, inundation
mapping in the EAP should be provided on sheets no larger than 11 inches by 17
inches to facilitate copying for emergency response.
(6) Appendices containing information that supports and
supplements the material used in the development of the EAP, including plans
for training, exercising, and updating the EAP.
(7) A section that identifies all parties with assigned
responsibilities in the EAP and signed certification by all of those parties
that a copy of the EAP has been received.
(8) Times periods for review or revision acceptable to the
director.
3. Impoundments shall be closed and abandoned in a manner that
ensures continued stability and compatibility with the post-mining land use.
4. The following are acceptable as design procedures and references:
a. The design procedures, manuals and criteria used by the
United States Army Corps of Engineers:;
b. The design procedures, manuals and criteria used by the
United States Department of Agriculture, Natural Resources Conservation Service:;
c. The design procedures, manuals and criteria used by the
United States Department of Interior, Bureau of Reclamation:;
d. The design procedures, manuals and criteria used by the
United States Department of Commerce, National Weather Service: or;
e. The design procedures, manuals and criteria used by the
United States Federal Energy Regulatory Commission;
f. Federal Guidelines for Dam Safety: Emergency Action
Planning for Dam Owners, United States Department of Homeland Security, Federal
Emergency Management Agency, October 1998, Reprinted January 2004; FEMA 64 or
as revised;
g. Federal Guidelines for Dam Safety: Selecting and
Accommodating Inflow Design Floods for Dams, United States Department of
Homeland Security, Federal Emergency Management Agency, October 1998, Reprinted
April 2004; FEMA 94 or as revised; or
e. h. Other design procedures, manuals and
criteria that are accepted as current, sound engineering practices, as approved
by the director prior to the design of the impounding structure.
B. Impoundments that do not meet or exceed the size criteria
of subsection A of this section shall meet the following criteria:
1. Be designed and constructed using current, prudent
engineering practice to safely perform the intended function.
2. Be constructed with slopes no steeper than
two-horizontal-to-one-vertical in predominantly clay soils or
three-horizontal-to-one-vertical in predominantly sandy soils.
3. Safely pass the runoff from a 50-year storm event for
temporary (life of mine) structures and a 100-year storm event for permanent
(to remain after mining is completed) structures.
4. Be closed and abandoned to ensure continued stability and
compatibility with the post-mining use.
5. Be inspected and maintained to ensure proper functioning.
6. Provide adequate protection for adjacent property owners
and ensure public safety.
C. Impoundments with impounding capability created solely by
excavation shall comply with the following criteria:
1. Be designed and constructed using prudent engineering
practice to safely perform the intended function.
2. Be constructed with slopes no steeper than
two-horizontal-to-one-vertical in predominantly clay soils or
three-horizontal-to-one-vertical in predominantly sandy soils.
3. Be designed and constructed with outlet facilities capable
of:
a. Protecting public safety;
b. Maintaining water levels to meet the intended use; and
c. Being compatible with regional hydrologic practices.
4. Be closed and abandoned to ensure continued stability and
compatibility with the post-mining use.
5. Be inspected and maintained to ensure proper functioning.
6. Provide adequate protection for adjacent property owners
and ensure public safety.
4VAC25-31-505. Reporting impoundment failures.
If upon examination an operator determines that a water
impounding structure has failed partially or completely, the incident must be
reported to the division immediately.
4VAC25-31-510. Alternative methods of stabilization.
Riprap shall be used for the control of erosion on those
areas where it is impractical to establish vegetation or other means of erosion
control or in any areas where rock riprap is an appropriate means of
reclamation. Placing of rock riprap shall be in accordance with drainage
standards and the approved mineral mining plan. Other methods of stabilization shall
may include gabions, concrete, and shotcrete, geotextiles, and
other means acceptable to the director.
4VAC25-31-530. Process in revegetation.
A. Slopes shall be graded in keeping with good conservation
practices acceptable to the division. Slopes shall be provided with proper
structures such as terraces, berms, and waterways, to accommodate surface water
where necessary and to minimize erosion due to surface run-off. Slopes shall be
stabilized, protected with a permanent vegetative or riprap covering and not be
in an eroded state at the time reclamation is complete.
B. Crusted and hard soil surfaces shall be scarified prior to
revegetation. Steep graded slopes shall be tracked (running a cleated crawler
tractor or similar equipment up and down the slope).
C. Application of lime and fertilizer shall be performed
based on soil tests and the revegetation requirements in the approved
reclamation plan.
D. Vegetation shall be planted or seeded and mulched
according to the mixtures and practices included in the approved reclamation
plan. Mulch shall be applied at the rate of 2,000 pounds per acre for straw
or hay, and 1,500 pounds per acre for wood cellulose mulch.
E. The seed used must meet the purity and germination
requirements of the Virginia Department of Agriculture and Consumer Services.
The division may, at its discretion, take samples for laboratory testing.
Noncritical vegetated areas shall achieve adequate cover so that no areas
larger than one-half acre shall exist with less than 75% cover after two
growing seasons. Seeded portions of critical areas shall have adequate
vegetative cover so the area is completely stabilized.
4VAC25-31-540. Trees and shrubs.
Trees and shrubs shall be planted according to the specific
post-mining land use, regional adaptability, and planting requirements included
in the approved reclamation plan. Tree and shrub planting for ground cover
shall be combined with well established grass species. For forest and
wildlife post-mining land uses, at least 400 healthy plants per acre shall be
established after two growing seasons.
4VAC25-31-550. Intensive agricultural use.
If the post-mining use is to be intensive agriculture, the
planting and harvesting of a normal crop yield is required. A normal yield for
a particular crop is equal to the five-year average for the county. If crop
yield data is unavailable, then other methods to determine suitability for bond
release may be utilized as acceptable to the director. The use of grass,
water bars, or diversion strips and natural vegetative drainage control may be
required in the initial planting year as specified by the director.
VA.R. Doc. No. R09-1913; Filed October 2, 2012, 8:24 a.m.
VIRGINIA GAS AND OIL BOARD
Proposed Regulation
Title of Regulation: 4VAC25-165. Regulations
Governing the Use of Arbitration to Resolve Coalbed Methane Gas Ownership
Disputes (adding 4VAC25-165-10 through 4VAC25-165-130).
Statutory Authority: § 45.1-361.15 of the Code of
Virginia.
Public Hearing Information:
November 28, 2012 - 10 a.m. - Conference Center, Russell
County Office Building, 139 Highland Drive, Lebanon, VA
Public Comment Deadline: December 21, 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.
Basis: Chapter 442 of the 2010 Acts of Assembly, which
directs the Virginia Gas and Oil Board (VGOB) to adopt regulations to implement
the arbitration process created in that act within 280 days of its enactment,
mandates these regulations. Also, the Director of DMME is generally empowered
with regulatory authority under §§ 45.1-161.3 and 45.1-361.4 of the Code
of Virginia. VGOB possesses authority to issue regulations under
§ 45.1-361.15 of the Code of Virginia. On June 14, 2011, the VGOB voted to
adopt proposed regulations pursuant to Chapter 442 of the 2010 Acts of
Assembly. On July 19, 2011, the VGOB voted to make one minor change to the proposed
regulations.
Purpose: The purpose of this regulation is to administer
the arbitration process mandated in Chapter 442 of the 2010 Acts of Assembly.
The act creates a voluntary arbitration process for parties with conflicting
claims of ownership of coalbed methane gas. Currently, there are approximately
$26 million in royalties held in escrow, most of which is due to unresolved
claims of ownership. Creating an arbitration system that is an effective
alternative to litigation can help reduce the amount of funds in escrow. To
date, VGOB has not received a request for arbitration.
Substance: The regulation will establish the arbitration
process. It will detail how interest is calculated to determine if sufficient
funds are available to fund the arbitration, how the process works, and what
happens once a determination is issued.
Issues: The primary advantage of this statutorily
mandated regulation is that landowners and mineral owners in Southwest Virginia
have another potential avenue to voluntarily resolve disputes over the
ownership of coalbed methane gas. Another potential benefit to citizens,
relevant businesses, and the Commonwealth would be a decrease of funds
currently held in escrow as the result of arbitration determinations. There are
no disadvantages to this regulation.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. Chapter 442
of the 2010 Acts of Assembly directs the Virginia Gas and Oil Board (Board) to
adopt regulations to implement the arbitration process created in that act
within 280 days of its enactment. The Board proposes these regulations in order
to establish guidelines for the voluntary arbitration process. Some of the key
provisions include how arbitrations are funded, the qualifications of the
arbitrator, and procedures associated with the arbitration itself. Except for
one minor change, these proposed regulations are identical to the existing
emergency regulations currently in effect.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. The purpose of this regulation is to
administer the arbitration process mandated in Chapter 442 of the 2010 Acts of
Assembly. The act creates a voluntary arbitration process for parties with
conflicting claims of ownership of coalbed methane gas. Currently, there are approximately
$26 million in royalties held in escrow, most of which are due to unresolved
claims of ownership. The creation of an arbitration system that is an effective
alternative to litigation could potentially help reduce the amount of funds in
escrow and legal costs for the parties involved. Emergency regulations which
are effectively the same as these proposed regulations have been in effect
since December 20, 2010. To date, the Board has not received any requests for
arbitration.
Since the proposed arbitration system is voluntary, it will be
used if all affected parties believe it would be to their benefit. Thus the
proposed creation of this system would be net beneficial if it is used in
practice, and neutral in impact if it is not. Since the emergency regulations
have been in effect since December 20, 2010 and thus far no parties have
approached the Board requesting arbitration, the initial evidence indicates
that the use of the proposed arbitration may be limited in practice.
Businesses and Entities Affected. Due to family heirships, the
Department of Mines, Minerals and Energy (Department) estimates there could be
anywhere from 8,000 to 12,000 entities primarily affected by these regulations.
Most of these entities are landowners and energy firms with conflicting claims
of ownership of coalbed methane gas. The Board, though, has not yet received
any requests for arbitration. Potential affected small businesses could include
land management groups or small coal companies.
Localities Particularly Affected. Coalbeds in the Commonwealth
primarily occur in the following seven counties: Buchanan, Dickenson, Lee,
Russell, Scott, Tazewell, and Wise.
Projected Impact on Employment. The proposed amendments are
unlikely to significantly affect employment.
Effects on the Use and Value of Private Property. To the extent
that affected parties pursue the proposed arbitration process, legal costs may
be reduced and funds currently in escrow may be more quickly distributed.
Small Businesses: Costs and Other Effects. The proposed
regulations will not increase costs for small businesses.
Small Businesses: Alternative Method that Minimizes Adverse
Impact. The proposed regulations will not produce an adverse impact for small
businesses.
Real Estate Development Costs. To the extent that affected
parties pursue the proposed arbitration process, the cost of developing land
for coalbed methane gas extraction may be moderately reduced due to savings in
legal costs associated with the ownership disputes.
Legal Mandate. The Department of Planning and Budget (DPB) has
analyzed the economic impact of this proposed regulation in accordance with
§ 2.2-4007.04 of the Administrative Process Act and Executive Order Number
14 (10). Section 2.2-4007.04 requires that such economic impact analyses
include, but need not be limited to, the projected number of businesses or
other entities to whom the regulation would apply, the identity of any
localities and types of businesses or other entities particularly affected, the
projected number of persons and employment positions to be affected, the
projected costs to affected businesses or entities to implement or comply with
the regulation, and the impact on the use and value of private property.
Further, if the proposed regulation has adverse effect on small businesses,
§ 2.2-4007.04 requires that such economic impact analyses include (i) an
identification and estimate of the number of small businesses subject to the
regulation; (ii) the projected reporting, recordkeeping, and other administrative
costs required for small businesses to comply with the regulation, including
the type of professional skills necessary for preparing required reports and
other documents; (iii) a statement of the probable effect of the regulation on
affected small businesses; and (iv) a description of any less intrusive or less
costly alternative methods of achieving the purpose of the regulation. The
analysis presented above represents DPB's best estimate of these economic
impacts.
Agency's Response to Economic Impact Analysis: The
Department of Mines, Minerals and Energy concurs with the economic impact
analysis conducted by the Department of Planning and Budget.
Summary:
The proposed regulations implement a voluntary arbitration
process for parties with conflicting claims of ownership of coalbed methane gas
as directed by Chapter 442 of the 2010 Acts of Assembly. Key provisions include
how arbitrations are funded, the qualifications of the arbitrator, and
procedures associated with the arbitration process.
CHAPTER 165
REGULATIONS GOVERNING THE USE OF ARBITRATION TO RESOLVE COALBED METHANE GAS
OWNERSHIP DISPUTES
4VAC25-165-10. Definitions.
The following words and terms when used in this regulation
shall have the following meanings unless the context clearly indicates otherwise.
"Accrued interest" means funds accrued during
the preceding 36 months on total proceeds held in the general escrow account.
Accrued interest does not include escrow account fees or administrative costs
of the board related to the general escrow account.
"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.
"Arbitrator" means a qualified individual
appointed by a court to render a determination in an ownership dispute
concerning coalbed methane gas.
"Board" means the Virginia Gas and Oil Board.
"Claimant" means a person or entity in a dispute
over ownership of coalbed methane gas who has agreed to arbitration to resolve
the dispute.
"Court" means a circuit court in the Commonwealth
of Virginia wherein the majority of the subject tract of land is located.
"Department" means the Department of Mines,
Minerals and Energy.
"Escrow account" means the account established
by the board pursuant to §§ 45.1-361.21 and 45.1-361.22 (2) of the Code of
Virginia.
"Ex parte communication" means any form of
communication between an arbitrator and a claimant without the presence of the
opposing claimant.
"Operator" means the gas or oil owner designated
by the board to operate in or on a pooled unit.
4VAC25-165-20. Costs of arbitration.
Arbitrations shall be funded from accrued interest. The
department shall determine on a case-by-case basis if sufficient funds exist to
conduct an arbitration. Sufficiency of funds shall be determined by the amount
of accrued interest available at the time arbitration is requested, less
estimated costs of pending arbitrations. If sufficient funds are not available,
the department shall maintain a waiting list of parties willing to arbitrate.
4VAC25-165-30. Qualification of arbitrators.
The department shall review all applications from
potential arbitrators pursuant to § 45.1-361.22:1 C of the Code of
Virginia. Applications shall be submitted on a form prescribed by the
department. In order to qualify, applicants must demonstrate substantial
expertise in mineral title examination. Substantial expertise shall be
determined on an individual basis. The department shall notify applicants
deemed to be qualified.
The department shall maintain a list of qualified
arbitrators and update it annually. The list shall be supplied to the court
when the board issues an order for arbitration. Pursuant to
§ 45.1-361.22:1 C of the Code of Virginia, the court has the discretion to
appoint an individual not on the list of qualified arbitrators.
In order to maintain a current, accurate list, qualified
arbitrators shall at least annually update their disclosures to the department.
4VAC25-165-40. Agreement to arbitrate.
Claimants shall submit their request of arbitration to the
board on a form prescribed by the department. Claimants shall also provide an
affidavit pursuant to § 45.1-361.22:1 A of the Code of Virginia.
4VAC25-165-50. Conflicts of interest.
In addition to the limitations set forth in
§ 45.1-361.22:1 A of the Code of Virginia, an arbitrator may not hear an
arbitration if the arbitrator is related to one of the claimants, has a
personal interest in the subject of the arbitration, or if other circumstances
exist that might affect the arbitrator's ability to render a fair determination.
If evidence of a conflict exists under this section, a claimant may petition
the court to appoint a different arbitrator.
4VAC25-165-60. Location.
The arbitrator shall determine an appropriate time and
place for the arbitration. The arbitration shall take place in the jurisdiction
where the majority of the subject tract is located, unless all claimants agree
to an alternate location. Notice to claimants shall be given pursuant to the
requirements of § 45.1-361.22:1 D of the Code of Virginia.
4VAC25-165-70. Postponement of arbitration.
Any request for postponement may be granted by the
arbitrator if all claimants consent, or if good cause for a postponement is
shown to the satisfaction of the arbitrator. Requests for postponement for
cause should be made to the arbitrator at least 15 days before the hearing,
unless the circumstances requiring the postponement do not allow 15 days
notice. Whenever a postponement is granted, the arbitrator will promptly
reschedule the hearing and notify the board and the claimants.
4VAC25-165-80. Discovery.
Pursuant to §§ 8.01-581.06 and 45.1-361.22:1 D of the
Code of Virginia, the arbitrator may issue subpoenas, administer oaths, and
take depositions. Additionally, any documents a claimant intends to introduce
at the arbitration must be shared with the opposing claimant and the arbitrator
not less than five days prior to the arbitration. If this provision is found
not to be met, the arbitrator may elect to continue the arbitration.
4VAC25-165-90. Extension of arbitration.
If, pursuant to § 45.1-361.22:1 E of the Code of
Virginia, the claimants agree that the arbitrator may take longer than six
months from the date the board ordered the arbitration to render a
determination, the arbitrator shall notify the board of this extension.
4VAC25-165-100. Determination of arbitrator.
Pursuant to § 45.1-361.22:1 E of the Code of
Virginia, the determination of the arbitrator shall be in writing and sent to
the board and each party to whom notice is required to be given. The
determination shall include, at a minimum, a finding of facts and an
explanation for the basis of the determination. A copy of the determination
shall be placed on the department's website. The arbitrator shall record the
determination with the clerk's office of the court.
4VAC25-165-110. Ex parte communications.
There shall be no direct communication between the
claimants and the arbitrator concerning the merits of the dispute other than at
the arbitration hearing. If an ex parte communication occurs between a party
and the arbitrator outside of the arbitration hearing, the arbitrator shall
notify the other parties of the date, time, place, and content of the
communication.
4VAC25-165-120. Fees.
Arbitrators shall be paid at the rate of no more than $250
per hour. Expenses of the arbitrator incurred during the course of the
arbitration shall be reimbursed in accordance with the State Travel Regulations
prescribed by the Department of Accounts. Arbitrators shall submit a complete
W-9 form to the department before payment is made.
Pursuant to § 45.1-361.22:1 F of the Code of
Virginia, payment of fees and expenses of the arbitration may be delayed if
there are intervening disbursements from the general escrow account under
§ 45.1-361.22 (5)(i) or (iii) of the Code of Virginia that reduce the
interest balance below the amount of fees and expenses requested.
4VAC25-165-130. Disbursement of proceeds.
Within 30 days of receipt of an affidavit from the
claimants affirming the determination, the operator shall petition the board
for disbursement pursuant to § 45.1-361.22 (5) of the Code of Virginia.
NOTICE: The following forms
used in administering the regulation have been filed by the Department of
Mines, Minerals and Energy. The forms are not being published; however, the
names of the forms are listed below. Online users of this issue of the Virginia
Register of Regulations may access the forms by clicking on the name of the
form. The forms are also available for public inspection at the Department of
Mines, Minerals and Energy, 1100 Bank Street, Richmond, Virginia 23219, or at
the Office of the Registrar of Regulations, General Assembly Building, 2nd
Floor, Richmond, Virginia 23219.
FORMS (4VAC25-165)
Arbitrator
Qualification Form, DGO-ARB (rev. 5/10).
Agreement
to Arbitrate Form, DGO-ARB2 (rev. 7/10).
VA.R. Doc. No. R11-2556; Filed October 2, 2012, 4:21 p.m.
VIRGINIA SOIL AND WATER CONSERVATION BOARD
Final Regulation
REGISTRAR'S NOTICE:
The Virginia Soil and Water Conservation Board is claiming an exemption from
the Administrative Process Act in accordance with (i) § 2.2-4006 A 3 of the
Code of Virginia, which excludes regulations that consist only of changes in
style or form or corrections of technical errors; (ii) § 2.2-4006 A 4 a of the
Code of Virginia, which excludes regulations that are necessary to conform to
changes in Virginia statutory law where no agency discretion is involved; and
(iii) § 2.2-4006 A 4 c of the Code of Virginia, which exempts regulations
that are necessary to meet the requirements of federal law or regulations,
provided such regulations do not differ materially from those required by
federal law or regulation. The Virginia Soil and Water Conservation Board will
receive, consider, and respond to petitions by any interested person at any
time with respect to reconsideration or revision. In addition, amendments to
4VAC50-30-30 C are exempt from Article 2 of the Administrative Process Act
pursuant to Item 360 I 2 of Chapter 3 of the 2012 Acts of Assembly--Special
Session I.
Title of Regulation: 4VAC50-30. Erosion and Sediment
Control Regulations (amending 4VAC50-30-10, 4VAC50-30-30,
4VAC50-30-40, 4VAC50-30-50, 4VAC50-30-60, 4VAC50-30-80, 4VAC50-30-90,
4VAC50-30-100; adding 4VAC50-30-65; repealing 4VAC50-30-110).
Statutory Authority: § 10.1-561 of the Code of
Virginia.
Effective Date: November 21, 2012.
Agency Contact: David C. Dowling, Policy and Planning
Director, Department of Conservation and Recreation, 203 Governor Street, Suite
302, Richmond, VA 23219, telephone (804) 786-2291, FAX (804) 786-6141, or email
david.dowling@dcr.virginia.gov.
Background: The majority of the amendments are being
made to conform the Erosion and Sediment Control Regulations (4VAC50-30) to
changes in Virginia statutory law in response to Chapters 785 and 819 of the
2012 Acts of Assembly, which integrated programs under the Erosion and Sediment
Control, Stormwater Management, and Chesapeake Bay Preservation Acts. The
legislation integrated elements of the Erosion and Sediment Control Act, the
Stormwater Management Act, and the Chesapeake Bay Preservation Act (where
appropriate; no Bay Act program expansion) so that those regulatory programs
could be implemented in a consolidated and consistent manner, resulting in
greater efficiencies (one-stop shopping) for those being regulated. The bill
also abolished the Chesapeake Bay Local Assistance Board and transferred its
powers and responsibilities to the Virginia Soil and Water Conservation Board.
Accordingly, this consolidation legislation has resulted in necessary
amendments to each of the referenced Acts' attendant regulations. This
specific action also includes an amendment that is being made to meet the
federal requirements of the Effluent Limitations Guidelines set out in Federal
Register Volume 74; Number 229; December 1, 2009; Page 63057; Subpart B -
Construction and Development Effluent Guidelines; 450.21 Effluent limitations reflecting
the best practicable technology currently available (BPT); (b) Soil
Stabilization.
Summary:
The substantive elements of this action include:
1. Global updates changing "erosion and sediment
control program" to "VESCP" and changing "plan approval authority"
to "VESCP authority";
2. Modifying the definitions section;
3. Updating the list of entities that may submit annual
general erosion and sediment control standards and specifications and
clarifying that such standards and specifications or erosion and sediment
control plans are submitted to the department for approval;
4. Citing the appropriation act authority stipulating that
public institutions of higher education shall be subject to project review and
compliance for state erosion and sediment control requirements;
5. Allowing VESCP authorities to charge applicants a
reasonable fee to defray the costs of program administration, clarifying that
such fee may be in addition to any fee charged for administration of a Virginia
stormwater management program, and requiring a VESCP authority to hold a public
hearing prior to establishing a schedule of fees;
6. Stipulating that temporary soil stabilization shall be
applied within seven days to denuded areas that may not be at final grade but
will remain dormant for longer than 14 days, rather than the 30 days;
7. Modifying Minimum Standard 19 specifying that (i) stream
restoration and relocation projects that incorporate natural channel design
concepts are not man-made channels and shall be exempt from any flow rate
capacity and velocity requirements for natural or man-made channels; (ii) any
plan approved prior to July 1, 2014, that provides for stormwater management
that addresses any flow rate capacity and velocity requirements for natural or
man-made channels shall satisfy the flow rate capacity and velocity
requirements for natural or man-made channels if the practices are designed as
specified; (iii) for plans approved on and after July 1, 2014, the flow rate
capacity and velocity requirements of § 10.1-561 A of the Code of Virginia and
subdivision 19 of 4VAC50-30-40 shall be satisfied by compliance with water
quantity requirements in the Stormwater Management Act (§ 10.1-603.2 et seq.)
and attendant regulations, unless such land-disturbing activities are in
accordance with 4VAC50-60-48 of the Virginia Stormwater Management Program
(VSMP) Permit Regulations (grandfathering provisions); and (iv) compliance with
the water quantity minimum standards set out in 4VAC50-60-66 of the Virginia
Stormwater Management Program (VSMP) Permit Regulations shall be deemed to
satisfy the requirements of Minimum Standard 19;
8. Requiring each VESCP authority to report to the
department a listing of each land-disturbing activity for which a plan has been
approved by the VESCP authority under the Erosion and Sediment Control Act and
associated regulations;
9. Clarifying that in all areas of jurisdictions designated
as subject to the Chesapeake Bay Preservation Area Designation and Management
Regulations that erosion and sediment control shall be addressed for projects
disturbing 2,500 square feet or more unless otherwise exempted;
10. Requiring each VESCP operated by a locality to include
provisions for the integration of the VESCP with Virginia stormwater
management, flood insurance, flood plain management, and other programs
requiring compliance prior to authorizing a land-disturbing activity in order
to make the submission and approval of plans, issuance of permits, payment of
fees, and coordination of inspection and enforcement activities more convenient
and efficient both for the local governments and those responsible for
compliance with the programs;
11. Stipulating that the department is authorized to
conduct partial program compliance reviews of a VESCP authority;
12. Clarifying the review procedure for an Erosion and
Sediment Control Program by the department and the corrective action agreement
process;
13. Clarifying that all state agency land-disturbing
activities that are not exempt and that have commenced without an approved
erosion and sediment control plan shall immediately cease until the state
agency has submitted annual standards and specifications for its conduct of
land-disturbing activities that have been approved by the department as being
consistent with the Act and this chapter, or an erosion and sediment control
plan has been submitted to and approved by the department; and
14. Repealing 4VAC50-30-110, which specifies that the board
shall develop, adopt, and administer an appropriate local erosion and sediment
control program for the locality under consideration.
4VAC50-30-10. Definitions.
The following words and terms, when used in this
chapter, shall have the following meanings, unless the context clearly
indicates otherwise. In addition, some terms not defined herein are defined in
§ 10.1-560 of the Erosion and Sediment Control Law.
"Act" means the Erosion and Sediment Control Law,
Article 4 (§ 10.1-560 et seq.) of Chapter 5 of Title 10.1 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 of the same.
"Agreement in lieu of a plan" means a contract
between the program VESCP authority and the owner which that
specifies conservation measures which that must be implemented in
the construction of a single-family residence; this contract may be executed by
the program VESCP authority in lieu of an erosion and sediment
control plan.
"Applicant" means any person submitting an erosion
and sediment control plan or an agreement in lieu of a plan for approval or
requesting the issuance of a permit, when required, authorizing land-disturbing
activities to commence.
"Board" means the Virginia Soil and Water
Conservation Board.
"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.
"Channel" means a natural stream or manmade
waterway.
"Cofferdam" means a watertight temporary structure
in a river, lake, etc., for keeping the water from an enclosed area that has
been pumped dry so that bridge foundations, dams, etc., may be constructed.
"Dam" means a barrier to confine or raise water for
storage or diversion, to create a hydraulic head, to prevent gully erosion, or
to retain soil, rock or other debris.
"Denuded" means a term applied to land that has
been physically disturbed and no longer supports vegetative cover.
"Department" means the Department of Conservation
and Recreation.
"Development" means a tract or parcel of land
developed or to be developed as a single unit under single ownership or unified
control which is to be used for any business or industrial purpose or is to
contain three or more residential dwelling units.
"Dike" means an earthen embankment constructed to
confine or control water, especially one built along the banks of a river to
prevent overflow of lowlands; levee.
"Director" means the Director of the Department of
Conservation and Recreation.
"District" or "soil and water conservation
district" means a political subdivision of the Commonwealth organized in
accordance with the provisions of Article 3 (§ 10.1-506 et seq.) of
Chapter 5 of Title 10.1 of the Code of Virginia.
"Diversion" means a channel with a supporting ridge
on the lower side constructed across or at the bottom of a slope for the
purpose of intercepting surface runoff.
"Dormant" refers to denuded land that is not
actively being brought to a desired grade or condition.
"Energy dissipator" means a nonerodible structure
which reduces the velocity of concentrated flow to reduce its erosive effects.
"Erosion and Sediment Control Plan," "conservation
plan" or "plan", means a document containing material
for the conservation of soil and water resources of 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 all
major conservation decisions and all information deemed necessary by the
plan-approving authority to assure that the entire unit or units of land will
be so treated to achieve the conservation objectives.
"Flume" means a constructed device lined with
erosion-resistant materials intended to convey water on steep grades.
"Live watercourse" means a definite channel with
bed and banks within which concentrated water flows continuously.
"Locality" means a county, city or town.
"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. Constructed channels such as drainage ditches or
swales shall not be considered natural streams.
"Nonerodible" means a material, e.g., riprap,
concrete, plastic, etc., that will not experience surface wear due to natural
forces.
"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, governmental
body, including a federal or state entity as applicable, any interstate
body, or any other legal entity.
"Plan approving authority" means the board, the
program authority, a department of a program authority, or an agent of the
program authority responsible for determining the adequacy of a conservation
plan submitted for land-disturbing activities on a unit or units of land and
for approving plans.
"Post-development" refers to conditions that may be
reasonably expected or anticipated to exist after completion of the land
development activity on a specific site or tract of land.
"Program administrator" means the person or persons
responsible for administering and enforcing the erosion and sediment control
program of a program VESCP authority.
"Program authority" means a district, county,
city, or town which has adopted a soil erosion and sediment control program
which has been approved by the board.
"Pre-development" refers to conditions at the time
the erosion and sediment control plan is submitted to the plan approving
VESCP authority. Where phased development or plan approval occurs
(preliminary grading, roads and utilities, etc.), the existing conditions at
the time the erosion and sediment control plan for the initial phase is
submitted for approval shall establish pre-development conditions.
"Sediment basin" means a temporary impoundment build
built to retain sediment and debris with a controlled stormwater release
structure.
"Sediment trap" means a temporary impoundment built
to retain sediment and debris which is formed by constructing an earthen
embankment with a stone outlet.
"Sheet flow" (also called overland flow) means
shallow, unconcentrated and irregular flow down a slope. The length of strip
for overland flow usually does not exceed 200 feet under natural conditions.
"Shore erosion control project" means an erosion
control project approved by local wetlands boards, the Virginia Marine
Resources Commission, the Virginia Department of Environmental Quality or the
United States Army Corps of Engineers and located on tidal waters and within
nonvegetated or vegetated wetlands as defined in Title 28.2 of the Code of
Virginia.
"Slope drain" means tubing or conduit made of
nonerosive material extending from the top to the bottom of a cut or fill slope
with an energy dissipator at the outlet end.
"Stabilized" means land that has been treated to
withstand normal exposure to natural forces without incurring erosion damage.
"Storm sewer inlet" means a structure through which
stormwater is introduced into an underground conveyance system.
"Stormwater detention" means the process of
temporarily impounding runoff and discharging it through a hydralic hydraulic
outlet structure to a downstream conveyance system.
"Temporary vehicular stream crossing" means a
temporary nonerodible structural 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 exceedence probability with a 10%
chance of being equaled or exceeded in any given year.
"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 exceedence probability with a 50%
chance of being equaled or exceeded in any given year.
"Twenty-five-year storm" means a storm that is
capable of producing rainfall expected to be equaled or exceeded on the average
of once in 25 years. It may also be expressed as exceedence probability with a
4.0% chance of being equaled or exceeded in any given year.
"Virginia Erosion and Sediment Control Program"
or "VESCP" means a program approved by the board that has been
established by a VESCP authority for the effective control of soil erosion,
sediment deposition, and nonagricultural runoff associated with a
land-disturbing activity to prevent the unreasonable degradation of properties,
stream channels, waters, and other natural resources and shall include such
items where applicable as local ordinances, rules, permit requirements, annual
standards and specifications, policies and guidelines, technical materials, and
requirements for plan review, inspection, enforcement where authorized in this
article, and evaluation consistent with the requirements of the Act and this
chapter.
"Virginia Erosion and Sediment Control Program
authority" or "VESCP authority" means an authority approved by
the board to operate a Virginia Erosion and Sediment Control Program. An
authority may include a state entity, including the department; a federal
entity; a district, county, city, or town; or for linear projects subject to
annual standards and specifications, electric, natural gas and telephone
utility companies, interstate and intrastate natural gas pipeline companies,
railroad companies, or authorities created pursuant to § 15.2-5102
of the Code of Virginia.
4VAC50-30-30. Scope and applicability.
A. This chapter sets forth minimum standards for the
effective control of soil erosion, sediment deposition, and
nonagricultural runoff that must be met:
1. In erosion and sediment control programs VESCPs
adopted by districts and localities under § 10.1-562 of the Act;
2. In erosion and sediment control plans that may be submitted
directly to the board department pursuant to § 10.1-563 A of
the Act;
3. In annual general erosion and sediment control standards
and specifications that electric, natural gas, and telephone utility
companies, interstate and intrastate natural gas pipeline companies, and
railroad companies are required to file, and authorities created pursuant to
§ 15.2-5102 of the Code of Virginia may file with the board department
pursuant to § 10.1-563 D of the Act;
4. In conservation erosion and sediment control
plans and or annual standards and specifications that
state agencies are required to file with the department pursuant to
§ 10.1-564 of the Act; and
5. By In erosion and sediment control plans or
annual standards and specifications that federal agencies that enter
into agreements with the board may submit to the department pursuant to
§ 10.1-564 of the Act.
B. The submission of annual standards and
specifications to the board or the department by any agency or
company does not eliminate the need where applicable for a project
specific Erosion and Sediment Control Plan.
C. This chapter must be incorporated into the local
erosion and sediment control program within one year of its effective date.
In accordance with Item 360 I1 of Chapter 3 of the 2012 Virginia Acts of
Assembly, Special Session 1, public institutions of higher education, including
community colleges, colleges, and universities, shall be subject to project
review and compliance for state erosion and sediment control requirements by
the VESCP authority of the locality within which the land-disturbing activity
is located, unless such institution submits annual specifications to the
Department of Conservation and Recreation in accordance with § 10.1-564 A
(i) of the Code of Virginia.
D. Any VESCP authority that administers a VESCP may charge
applicants a reasonable fee to defray the costs of program administration. Such
fee may be in addition to any fee charged for administration of a Virginia
stormwater management program, although payment of fees may be consolidated in
order to provide greater convenience and efficiency for those responsible for
compliance with the programs. A VESCP authority shall hold a public hearing
prior to establishing a schedule of fees. The fee shall not exceed an amount
commensurate with the services rendered, taking into consideration the time,
skill, and the VESCP authority's expense involved.
4VAC50-30-40. Minimum standards.
An erosion and sediment control program adopted by a
district or locality A VESCP must be consistent with the following
criteria, techniques and methods:
1. Permanent or temporary soil stabilization shall be applied
to denuded areas within seven days after final grade is reached on any portion
of the site. Temporary soil stabilization shall be applied within seven days to
denuded areas that may not be at final grade but will remain dormant for longer
than 30 14 days. Permanent stabilization shall be applied to
areas that are to be left dormant for more than one year.
2. During construction of the project, soil stock piles and
borrow areas shall be stabilized or protected with sediment trapping measures.
The applicant is responsible for the temporary protection and permanent
stabilization of all soil stockpiles on site as well as borrow areas and soil
intentionally transported from the project site.
3. A permanent vegetative cover shall be established on
denuded areas not otherwise permanently stabilized. Permanent vegetation shall
not be considered established until a ground cover is achieved that is uniform,
mature enough to survive and will inhibit erosion.
4. Sediment basins and traps, perimeter dikes, sediment
barriers and other measures intended to trap sediment shall be constructed as a
first step in any land-disturbing activity and shall be made functional before
upslope land disturbance takes place.
5. Stabilization measures shall be applied to earthen
structures such as dams, dikes and diversions immediately after installation.
6. Sediment traps and sediment basins shall be designed and
constructed based upon the total drainage area to be served by the trap or
basin.
a. The minimum storage capacity of a sediment trap shall be
134 cubic yards per acre of drainage area and the trap shall only control
drainage areas less than three acres.
b. Surface runoff from disturbed areas that is comprised of
flow from drainage areas greater than or equal to three acres shall be
controlled by a sediment basin. The minimum storage capacity of a sediment
basin shall be 134 cubic yards per acre of drainage area. The outfall system
shall, at a minimum, maintain the structural integrity of the basin during a
25-year storm of 24-hour duration. Runoff coefficients used in runoff
calculations shall correspond to a bare earth condition or those conditions
expected to exist while the sediment basin is utilized.
7. Cut and fill slopes shall be designed and constructed in a
manner that will minimize erosion. Slopes that are found to be eroding
excessively within one year of permanent stabilization shall be provided with
additional slope stabilizing measures until the problem is corrected.
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. When work in a live watercourse is performed, precautions
shall be taken to minimize encroachment, control sediment transport and
stabilize the work area to the greatest extent possible during construction.
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.
13. When a live watercourse must be crossed by construction
vehicles more than twice in any six-month period, a temporary vehicular stream
crossing constructed of nonerodible material shall be provided.
14. All applicable federal, state and local chapters
pertaining to working in or crossing live watercourses shall be met.
15. The bed and banks of a watercourse shall be stabilized
immediately after work in the watercourse is completed.
16. Underground utility lines shall be installed in accordance
with the following standards in addition to other applicable criteria:
a. No more than 500 linear feet of trench may be opened at one
time.
b. Excavated material shall be placed on the uphill side of
trenches.
c. Effluent from dewatering operations shall be filtered or
passed through an approved sediment trapping device, or both, and discharged in
a manner that does not adversely affect flowing streams or off-site property.
d. Material used for backfilling trenches shall be properly
compacted in order to minimize erosion and promote stabilization.
e. Restabilization shall be accomplished in accordance with
this chapter.
f. Applicable safety chapters shall be complied with.
17. Where construction vehicle access routes intersect paved
or public roads, provisions 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
thoroughly at the end of each day. Sediment shall be removed from the roads by
shoveling or sweeping and transported to a sediment control disposal area.
Street washing shall be allowed only after sediment is removed in this manner.
This provision shall apply to individual development lots as well as to larger
land-disturbing activities.
18. 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, unless otherwise authorized by the local
program VESCP authority. Trapped sediment and the disturbed soil
areas resulting from the disposition of temporary measures shall be permanently
stabilized to prevent further erosion and sedimentation.
19. Properties and waterways downstream from development sites
shall be protected from sediment deposition, erosion and damage due to
increases in volume, velocity and peak flow rate of stormwater runoff for the
stated frequency storm of 24-hour duration in accordance with the following
standards and criteria. Stream restoration and relocation projects that
incorporate natural channel design concepts are not man-made channels and shall
be exempt from any flow rate capacity and velocity requirements for natural or
man-made channels:
a. Concentrated stormwater runoff leaving a development site
shall be discharged directly into an adequate natural or man-made receiving
channel, pipe or storm sewer system. For those sites where runoff is discharged
into a pipe or pipe system, downstream stability analyses at the outfall of the
pipe or pipe system shall be performed.
b. Adequacy of all channels and pipes shall be verified in the
following manner:
(1) The applicant shall demonstrate that the total drainage
area to the point of analysis within the channel is one hundred times greater
than the contributing drainage area of the project in question; or
(2)(a) Natural channels shall be analyzed by the use of a
two-year storm to verify that stormwater will not overtop channel banks nor
cause erosion of channel bed or banks.
(b) All previously constructed man-made channels shall be
analyzed by the use of a ten-year storm to verify that stormwater will not
overtop its banks and by the use of a two-year storm to demonstrate that
stormwater will not cause erosion of channel bed or banks; and
(c) Pipes and storm sewer systems shall be analyzed by the use
of a ten-year storm to verify that stormwater will be contained within the pipe
or system.
c. If existing natural receiving channels or previously
constructed man-made channels or pipes are not adequate, the applicant shall:
(1) Improve the channels to a condition where a ten-year storm
will not overtop the banks and a two-year storm will not cause erosion to
channel the bed or banks; or
(2) Improve the pipe or pipe system to a condition where the
ten-year storm is contained within the appurtenances;
(3) Develop a site design that will not cause the
pre-development peak runoff rate from a two-year storm to increase when runoff
outfalls into a natural channel or will not cause the pre-development peak
runoff rate from a ten-year storm to increase when runoff outfalls into a
man-made channel; or
(4) Provide a combination of channel improvement, stormwater
detention or other measures which is satisfactory to the plan approving VESCP
authority to prevent downstream erosion.
d. The applicant shall provide evidence of permission to make
the improvements.
e. All hydrologic analyses shall be based on the existing
watershed characteristics and the ultimate development condition of the subject
project.
f. If the applicant chooses an option that includes stormwater
detention, he shall obtain approval from the locality VESCP of a
plan for maintenance of the detention facilities. The plan shall set forth the
maintenance requirements of the facility and the person responsible for
performing the maintenance.
g. Outfall from a detention facility shall be discharged to a
receiving channel, and energy dissipators shall be placed at the outfall of all
detention facilities as necessary to provide a stabilized transistion transition
from the facility to the receiving channel.
h. All on-site channels must be verified to be adequate.
i. Increased volumes of sheet flows that may cause erosion or
sedimentation on adjacent property shall be diverted to a stable outlet,
adequate channel, pipe or pipe system, or to a detention facility.
j. In applying these stormwater management criteria,
individual lots or parcels in a residential, commercial or industrial
development shall not be considered to be separate development projects.
Instead, the development, as a whole, shall be considered to be a single
development project. Hydrologic parameters that reflect the ultimate
development condition shall be used in all engineering calculations.
k. All measures used to protect properties and waterways shall
be employed in a manner which minimizes impacts on the physical, chemical and
biological integrity of rivers, streams and other waters of the state.
l. Any plan approved prior to July 1, 2014, that provides
for stormwater management that addresses any flow rate capacity and velocity
requirements for natural or man-made channels shall satisfy the flow rate
capacity and velocity requirements for natural or man-made channels if the
practices are designed to (i) detain the water quality volume and to release it
over 48 hours; (ii) detain and release over a 24-hour period the expected rainfall
resulting from the one year, 24-hour storm; and (iii) reduce the allowable peak
flow rate resulting from the 1.5, 2, and 10-year, 24-hour storms to a level
that is less than or equal to the peak flow rate from the site assuming it was
in a good forested condition, achieved through multiplication of the forested
peak flow rate by a reduction factor that is equal to the runoff volume from
the site when it was in a good forested condition divided by the runoff volume
from the site in its proposed condition, and shall be exempt from any flow rate
capacity and velocity requirements for natural or man-made channels as defined
in any regulations promulgated pursuant to § 10.1-562 or 10.1-570 of the Act.
m. For plans approved on and after July 1, 2014, the flow
rate capacity and velocity requirements of § 10.1-561 A of the Act and this
subsection shall be satisfied by compliance with water quantity requirements in
the Stormwater Management Act (§ 10.1-603.2 et seq. of the Code of Virginia)
and attendant regulations, unless such land-disturbing activities are in
accordance with 4VAC50-60-48 of the Virginia Stormwater Management Program
(VSMP) Permit Regulations.
n. Compliance with the water quantity minimum standards set
out in 4VAC50-60-66 of the Virginia Stormwater Management Program (VSMP) Permit
Regulations shall be deemed to satisfy the requirements of Minimum Standard 19.
4VAC50-30-50. Variances.
The plan approving VESCP authority may waive or
modify any of the chapters that are deemed inappropriate or too restrictive for
site conditions, by granting a variance. A variance may be granted under these
conditions:
1. At the time of plan submission, an applicant may request a
variance to become part of the approved erosion and sediment control plan. The
applicant shall explain the reasons for requesting variances in writing.
Specific variances which are allowed by the plan approving VESCP
authority shall be documented in the plan.
2. During construction, the person responsible for
implementing the approved plan may request a variance in writing from the plan
approving VESCP authority. The plan approving VESCP
authority shall respond in writing either approving or disapproving such a
request. If the plan approving VESCP authority does not approve a
variance within 10 days of receipt of the request, the request shall be
considered to be disapproved. Following disapproval, the applicant may resubmit
a variance request with additional documentation.
3. The plan approving VESCP authority 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.
4VAC50-30-60. Maintenance and inspections.
A. All erosion and sediment control structures and systems
shall be maintained, inspected and repaired as needed to insure continued
performance of their intended function. A statement describing the maintenance
responsibilities of the permittee shall be included in the approved erosion and
sediment control plan.
B. Periodic inspections are required on all projects by the program
VESCP authority. The program VESCP authority shall either:
1. Provide for an inspection during or immediately following
initial installation of erosion and sediment controls, at least once in every
two-week period, within 48 hours following any runoff producing storm event,
and at the completion of the project prior to the release of any performance
bonds; or
2. Establish an alternative inspection program which ensures
compliance with the approved erosion and sediment control plan. Any alternative
inspection program shall be:
a. Approved by the board prior to implementation;
b. Established in writing;
c. Based on a system of priorities that, at a minimum, address
the amount of disturbed project area, site conditions and stage of
construction; and
d. Documented by inspection records.
4VAC50-30-65. Reporting.
Each VESCP authority shall report to the department, in a
method such as an online reporting system and on a time schedule established by
the department, a listing of each land-disturbing activity for which a plan has
been approved by the VESCP authority under the Act and this chapter.
4VAC50-30-80. Criteria for determining status of
land-disturbing activity.
A. The program administrator shall determine the validity of
a claim of exempt status by a property owner who disturbs 10,000 square feet or
more or 2,500 square feet or more in all area of jurisdictions designated as
subject to the Chesapeake Bay Preservation Area Designation and Management
Regulations. As soon as a nonexempt status is determined, the requirements
of the Act shall be immediately enforced.
B. Should a land-disturbing activity not begin during the
180-day period following plan approval or cease for more than 180 days, the plan-approval
authority or the permit issuing VESCP authority may evaluate the
existing approved erosion and sediment control plan to determine whether the
plan still satisfies local and state erosion and sediment control criteria and
to verify that all design factors are still valid. If the VESCP
authority finds the previously filed plan to be inadequate, a modified plan
shall be submitted and approved prior to the resumption of land-disturbing
activity.
C. Shore erosion control projects are not subject to this
chapter. However, land-disturbing activity immediately outside the limits of
the shore erosion project is subject to the Act and this chapter.
D. Whenever land-disturbing activity involves activity at a
separate location (including but not limited to borrow and disposal areas), the
program VESCP authority may either:
1. Consider the off-site activity as being part of the
proposed land-disturbing activity; or
2. If the off-site activity is already covered by an approved
erosion and sediment control plan, the program VESCP authority
may require the applicant to provide proof of the approval and to certify that
the plan will be implemented in accordance with a the Act and this chapter.
4VAC50-30-90. Review and evaluation of local programs VESCPs:
minimum program standards.
A. This section sets forth the criteria that will be used by
the department to determine whether a local program VESCP
operating under authority of the Act, satisfies minimum standards of
effectiveness, as follows.
Each local program VESCP must contain an
ordinance or other appropriate document or documents adopted by the governing
body VESCP authority. Such document or documents must be consistent
with the Act, this chapter, and 4VAC50-40-10 et seq., including the following
criteria:
1. The document or documents shall include or reference the
definition of land-disturbing activity including exemptions, as well as any
other significant terms, as necessary to produce an effective local program
VESCP.
2. The document or documents shall identify the plan-approving
VESCP authority and other positions of authority within the program
any soil and water conservation district, adjacent locality, or other public
or private entities that the VESCP authority entered into agreements or
contracts with to assist with carrying out the provisions of the Act and this
chapter, and must include the chapters and design standards to be used in
the program.
3. The document or documents shall include procedures for
submission and approval of plans, issuance of permits, monitoring and
inspections of land-disturbing activities. The position, agency, department, or
other party responsible for conducting inspections shall be identified. The local
program VESCP authority shall maintain, either on-site or in local
program VESCP files, a copy of the approved plan and a record of
inspections for each active land-disturbing activity.
4. Each VESCP operated by a county, city, or town shall
include provisions for the integration of the VESCP with Virginia stormwater
management, flood insurance, flood plain management, and other programs
requiring compliance prior to authorizing a land-disturbing activity in order
to make the submission and approval of plans, issuance of permits, payment of
fees, and coordination of inspection and enforcement activities more convenient
and efficient both for the local governments and those responsible for
compliance with the programs.
5. The local program VESCP authority must
take appropriate enforcement actions, where authorized to do so, to
achieve compliance with the program and maintain a record of enforcement
actions for all active land-disturbing activities.
B. The department staff, under authority of the board,
shall periodically conduct a comprehensive review and evaluation of local
programs. The review and evaluation of a local program shall consist of the
following: (i) personal interview between the department staff and the local
program administrator or designee or designees; (ii) review of the local
ordinance and other applicable documents; (iii) review of plans approved by the
program; (iv) inspection of regulated activities; and (v) review of enforcement
actions where authorized to do so. The department is also authorized to
conduct a partial program compliance review.
C. Local programs shall be reviewed and evaluated for
effectiveness in carrying out the Act and this chapter using the
criteria in this section. However, the director is not limited to the consideration
of only these items when assessing the overall effectiveness of a local
program.
D. If the director determines that the deficiencies
noted in the review will cause the local erosion and sediment control
program to be inconsistent with the state program and chapters, the director
board shall notify provide the local program VESCP
authority concerning the deficiencies and provide a reasonable period of
time for corrective action to be taken with a copy of its decision that
specifies the deficiencies, action needed to be taken, and the approved
compliance schedule required to attain the minimum standard of effectiveness.
If the program authority fails to take the corrective action within the
specified time, the director may formally request board action pursuant to §
10.1-562 of the Code of Virginia If the VESCP authority has not
implemented the necessary compliance actions identified by the board within 30
days following receipt of the corrective action agreement, or such additional
period as is granted to complete the implementation of the corrective action,
then the board shall have the authority to (i) issue a special order to any
VESCP imposing a civil penalty set out in § 10.1-562 F of the Act or (ii)
revoke its approval of the VESCP. The Administrative Process Act (§ 2.2-4000 et
seq. of the Code of Virginia) shall govern the activities and proceedings of
the board and the judicial review thereof. In lieu of issuing a special order
or revoking the program, the board is authorized to take legal action against a
VESCP to ensure compliance.
E. Review and evaluation of local programs VESCPs
shall be conducted according to a schedule adopted by the board department.
4VAC50-30-100. State agency projects.
A. All state agency land-disturbing activities that are not
exempt and that have commenced without an approved erosion and sediment control
plan shall immediately cease until the state agency has submitted annual
standards and specifications for its conduct of land-disturbing activities
which has been reviewed and approved by the department as being consistent with
the Act and this chapter, or an erosion and sediment control plan has been
submitted to and approved by the department. A formal "Notice of Plan
Requirement" will be sent to the state agency under whose purview the
project lies since that agency is responsible for compliance with the Act and
this chapter.
B. Where inspections by department personnel reveal
deficiencies in carrying out an approved plan, the person responsible for
carrying out the plan, as well as the state agency responsible, will be issued
a notice to comply with specific actions and the deadlines that shall be met.
Failure to meet the prescribed deadlines can result in the issuance of a stop
work order for all land-disturbing activities on the project at the discretion
of the Chief Administrative Officer of the board, who is authorized to sign
such an order department. The stop work order will be lifted once
the required erosion and sediment control measures are in place and inspected
by department staff.
C. Whenever the Commonwealth or any of its agencies fails to
comply within the time provided in an appropriate final order, the director of
the department may petition for compliance as follows: For violations in the
Natural Resources Secretariat, to the secretary Secretary of
Natural Resources; for violations in other secretariats, to the appropriate
Secretary; for violations in other state agencies, to the head of such agency.
Where the petition does not achieve timely compliance, the director shall bring
the matter to the Governor for resolution. The board or the department may
also pursue enforcement as provided by § 10.1-569 of the Act.
D. Where compliance will require the appropriation of funds,
the director shall cooperate with the appropriate agency head in seeking such
an appropriation; where the director determines that an emergency exists, he
shall petition the Governor for funds from the Civil Contingency Fund or other
appropriate source.
4VAC50-30-110. Document or documents adopted local erosion
and sediment control programs. (Repealed.)
A. To carry out its duties under § 10.1-562 of the Code of
Virginia, the board shall develop, adopt, and administer an appropriate local
erosion and sediment control program for the locality under consideration. In
fulfilling these duties, the board shall assume the full powers of the local
erosion and sediment control program granted by law.
B. The board shall develop, adopt and administer a local
erosion and sediment control program based on the minimum program standards
established by this chapter and, as deemed appropriate by the board, may
include any or all of the provisions provided by law and chapter including
administrative fees and performance securities.
C. Upon adoption of a local erosion and sediment control
program by the board, payment of moneys, including fees, securities, and
penalties, shall be made to the state treasury.
D. When administering a local erosion and sediment control
program the board may delegate to the director such operational activities as
necessary. Further, the board may enter into agreements with other public or
private entities to accomplish certain program responsibilities as it deems
necessary to administer the local program.
VA.R. Doc. No. R13-3314; Filed October 3, 2012, 8:56 a.m.
VIRGINIA SOIL AND WATER CONSERVATION BOARD
Final Regulation
REGISTRAR'S NOTICE:
The Virginia Soil and Water Conservation Board is claiming an exemption from
the Administrative Process Act in accordance with (i) § 2.2-4006 A 3 of
the Code of Virginia, which excludes regulations that consist only of changes
in style or form or corrections of technical errors and (ii) § 2.2-4006 A
4 a of the Code of Virginia, which excludes regulations that are necessary to
conform to changes in Virginia statutory law where no agency discretion is
involved. The Virginia Soil and Water Conservation Board will receive,
consider, and respond to petitions by any interested person at any time with
respect to reconsideration or revision.
Title of Regulation: 4VAC50-50. Erosion and Sediment
Control Certification Regulations (amending 4VAC50-50-10 through 4VAC50-50-90;
adding 4VAC50-50-55).
Statutory Authority: § 10.1-561 of the Code of
Virginia.
Effective Date: November 21, 2012.
Agency Contact: David C. Dowling, Policy and Planning
Director, Department of Conservation and Recreation, 203 Governor Street, Suite
302, Richmond, VA 23219, telephone (804) 786-2291, FAX (804) 786-6141, or email
david.dowling@dcr.virginia.gov.
Background: The majority of the amendments are being
made to conform the Erosion and Sediment Control Certification Regulations
(4VAC50-50) to changes in Virginia law in response to Chapters 785 and 819 of
the 2012 Acts of Assembly, which integrated programs under the Erosion and
Sediment Control, Stormwater Management, and Chesapeake Bay Preservation Acts.
The legislation integrated elements of the Erosion and Sediment Control Act,
the Stormwater Management Act, and the Chesapeake Bay Preservation Act (where
appropriate; no Bay Act program expansion) so that those regulatory programs
could be implemented in a consolidated and consistent manner, resulting in
greater efficiencies (one-stop shopping) for those being regulated. The bill
also abolished the Chesapeake Bay Local Assistance Board and transferred its
powers and responsibilities to the Virginia Soil and Water Conservation Board.
Accordingly, this consolidation legislation has resulted in necessary
amendments to each of the referenced acts' attendant regulations.
Summary:
The substantive elements of this action include (i)
changing the title of the regulations to recognize the broadened scope of the
certification program to include stormwater training and certification; (ii)
updating definitions; (iii) expanding the series of classifications currently
available in the certification program for erosion and sediment control to
include a parallel track in stormwater that includes program administrator for
stormwater management (SWM), plan reviewer for SWM, project inspector for SWM,
and combined administrator for SWM; (iv) recognizing that a professional soil
scientist as defined in Chapter 22 (§ 54.1-2200 et seq.) of Title
54.1 of the Code of Virginia shall qualify as a certified plan reviewer for
erosion and sediment control (ESC) and will not require a certificate of
competence from the board; and (v) establishing a dual certificate upon request
for an individual who holds a valid and unexpired certificate of competence
issued by the board in the classification of ESC or SWM, or who obtains such a
certificate, and who later successfully obtains an additional certificate of
competence from the board in the parallel ESC or SWM classification.
Within the eligibility requirements in 4VAC50-50-50, the
amendments include (i) establishing the availability of stormwater training
programs for project inspectors for SWM, plan reviewers for SWM, administrators
for SWM, and combined administrators for SWM and stipulating which programs
must be taken for each of these classifications; (ii) clarifying that both
certifications and recertifications are valid for a period of three years;
(iii) expanding the provision on recertifications to clarify the
recertification process and those professional entities that may be fully or
partially exempt from recertification requirements should they hold an
appropriate and valid professional license; and (iv) clarifying that for the
purposes of Virginia Erosion and Sediment Control Program (VESCP) or Virginia
Stormwater Management Program (VSMP) compliance reviews and evaluations, the
certification requirements of §§ 10.1-561.1 and 10.1-603.4:2 of the
Code of Virginia shall be deemed to have been met if the VESCP or the VSMP
authority has a person or persons enrolled in the board's ESC or SWM training
programs for the necessary classifications and such person or persons obtains
certification within one year of completing the necessary training programs.
CHAPTER 50
EROSION AND SEDIMENT CONTROL AND STORMWATER MANAGEMENT CERTIFICATION
REGULATIONS
4VAC50-50-10. 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 Erosion and Sediment Control
Law, Article 4 (§ 10.1-560 et seq.) of Chapter 5 of Title 10.1 of the Code of
Virginia.
"Applicant" means any person submitting a request
to be considered for certification.
"Board" means the Virginia Soil and Water
Conservation Board.
"Certification" means the process whereby the
board, on behalf of the Commonwealth, issues a certificate to persons who have
completed board-approved training programs and met any additional
eligibility requirements of 4VAC50-50-50 related to the specified
classifications (4VAC50-50-40) within the areas of ESC or SWM or in other
ways demonstrated adequate knowledge and experience in accordance with the
eligibility requirements of 4VAC50-50-50 in the specified subject classifications
within the areas of ESC or SWM.
"Certified combined administrator for ESC"
means an employee or agent of a program VESCP authority who:
(i) holds a certificate of competence from the board in the combined areas
ESC classifications of program authority administrator,
plan review reviewer, and project inspection; or (ii) is
enrolled in the board's training program for program administrator, plan
reviewer, and project inspector and successfully completes such program within
one year after enrollment inspector in the area of ESC. "Certified
combined administrator for SWM" means an employee or agent of a VSMP
authority who holds a certificate of competence from the board in the combined
classifications of program administrator, plan reviewer, and project inspector
in the area of SWM.
"Certified project inspector for ESC"
means an employee or agent of a program VESCP authority who:
(i) holds a certificate of competence from the board in the area classification
of project inspection; or (ii) is enrolled in the board's training program
for project inspection and successfully completes such program within one year
after enrollment inspector in the area of ESC.
"Certified project inspector for SWM" means an
employee or agent of a VSMP authority who holds a certificate of competence
from the board in the classification of project inspector in the area of SWM.
"Certified plan reviewer for ESC" means an
employee or agent of a program VESCP authority who: (i) holds a
certificate of competence from the board in the area classification
of plan review reviewer in the area of ESC; (ii) is enrolled
in the board's training program for plan review and successfully completes such
program within one year after enrollment; or (iii) is licensed as a
professional engineer, architect, certified landscape architect, or land
surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1
of the Code of Virginia; or (iii) is a professional soil scientist as
defined in Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of
Virginia.
"Certified plan reviewer for SWM" means an employee
or agent of a VSMP authority who holds a certificate of competence from the
board in the classification of plan reviewer in the area of SWM.
"Certified program administrator for ESC"
means an employee or agent of a program VESCP authority who:
(i) holds a certificate of competence from the board in the area classification
of program administration; or (ii) is enrolled in the board's training
program for program administrator and successfully completes such program
within one year after enrollment administrator in the area of ESC.
"Certified program administrator for SWM" means
an employee or agent of a VSMP authority who holds a certificate of competence
from the board in the classification of program administrator in the area of
SWM.
"Classification" refers to the four specific subject
certificate of competence classifications within the areas of ESC or
SWM that make up activities being performed (program administrator, plan
reviewer, project inspector, and combined) combined administrator).
"Combined administrator for ESC" means
anyone who is responsible for performing the combined duties of a program
administrator, plan reviewer and project inspector of a program VESCP
authority.
"Combined administrator for SWM" means anyone
who is responsible for performing the combined duties of a program
administrator, plan reviewer and project inspector of a VSMP authority.
"Department" means the Department of Conservation
and Recreation.
"ESC" means erosion and sediment control.
"ESC Act" means the Erosion and Sediment Control
Law, Article 4 (§ 10.1-560 et seq.) of Chapter 5 of Title 10.1 of the Code of
Virginia.
"Erosion and Sediment Control Plan",
"conservation plan" sediment control plan" or "ESC
plan", means a document containing material for the conservation of
soil and water resources of 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 all decisions contributing
to conservation treatment. The plan shall contain all major conservation
decisions and all information deemed necessary by the plan-approving
authority to assure ensure that the entire unit or units of
land will be so treated to achieve the conservation objective.
"Inspector" means anyone who, as a
representative of a program authority, is responsible for periodically
examining the erosion and sediment control activities and premises of a
land-disturbing activity for consistency with the Erosion and Sediment Control
Law and Regulations.
"Plan reviewer" means anyone who is responsible for
determining the accuracy of erosion and sediment control ESC
plans and supporting documents or SWM plans and supporting documents for
approval by a program VESCP authority or a VSMP authority as
may be applicable in the areas of ESC or SWM.
"Program administrator" means the person or persons
responsible for administering and enforcing the erosion and sediment control
program VESCP or VSMP of a program VESCP authority or
a VSMP authority as may be applicable in the areas of ESC or SWM.
"Program authority" means a soil and water
conservation district, county, city or town which has adopted an erosion and
sediment control program which has been approved by the board.
"Project inspector" means anyone who, as a
representative of a VESCP authority or a VSMP authority, is responsible for
periodically examining the ESC or SWM activities and premises of a
land-disturbing activity for compliance with the ESC Act and Regulations or the
SWM Act and Regulations as may be applicable.
"State erosion and sediment control program" or
"state program" means the program administered by the board through
the Director of the Department of Conservation and Recreation pursuant to the
Erosion and Sediment Control Law and 4VAC50-30-10 et seq., Erosion and Sediment
Control Regulations.
"Stormwater management plan" or "SWM
plan" means a document containing material describing methods for
complying with the requirements of a VSMP and the SWM Act and its attendant
regulations.
"SWM" means stormwater management.
"SWM Act" means the Virginia Stormwater
Management Act, Article 1.1 (§ 10.1-603.1 et seq.) of Chapter 6 of Title 10.1
of the Code of Virginia.
"Virginia Erosion and Sediment Control Program"
or "VESCP" means a program approved by the board that has been
established by a VESCP authority for the effective control of soil erosion,
sediment deposition, and nonagricultural runoff associated with a
land-disturbing activity to prevent the unreasonable degradation of properties,
stream channels, waters, and other natural resources and shall include such
items where applicable as local ordinances, rules, permit requirements, annual
standards and specifications, policies and guidelines, technical materials, and
requirements for plan review, inspection, enforcement where authorized in the
ESC Act and this chapter, and evaluation consistent with the requirements of
the ESC Act and this chapter.
"Virginia Erosion and Sediment Control Program
authority" or "VESCP authority" means an authority approved by
the board to operate a Virginia erosion and sediment control program. An
authority may include a state entity, including the department; a federal
entity; a district, county, city, or town; or for linear projects subject to
annual standards and specifications, electric, natural gas and telephone
utility companies, interstate and intrastate natural gas pipeline companies,
railroad companies, or authorities created pursuant to § 15.2-5102 of the Code
of Virginia.
"Virginia Stormwater Management Program" or
"VSMP" means a program approved by the board after September 13,
2011, that has been established by a VSMP authority to manage the quality and
quantity of runoff resulting from land-disturbing activities and shall include
such items as local ordinances, rules, permit requirements, annual standards
and specifications, policies and guidelines, technical materials, and
requirements for plan review, inspection, enforcement, where authorized in the
SWM Act and associated regulations, and evaluation consistent with the
requirements of the SWM Act and associated regulations.
"Virginia Stormwater Management Program
authority" or "VSMP authority" means an authority approved by
the board after September 13, 2011, to operate a Virginia Stormwater Management
Program or, until such approval is given, the department. An authority may
include a locality; state entity, including the department; federal entity; or,
for linear projects subject to annual standards and specifications in
accordance with subsection B of § 10.1-603.5 of the Code of Virginia, electric,
natural gas, and telephone utility companies, interstate and intrastate natural
gas pipeline companies, railroad companies, or authorities created pursuant to
§ 15.2-5102 of the Code of Virginia.
4VAC50-50-20. Purpose.
The purpose of this chapter is to guide the issuance of
certificates of competence required by §§ 10.1-561 E and 10.1-561.1
of the ESC Act and § 10.1-603.4:2 of the SWM Act.
4VAC50-50-30. Applicability.
This chapter is applicable to:
1. Every program VESCP authority or VSMP
authority that administers an erosion and sediment control program a
VESCP or VSMP as may be applicable. Staff of program a VESCP
authority must be certified in accordance with §§ 10.1-560 E and
10.1-561.1 of the ESC Act. Staff of a VSMP authority must be
certified in accordance with § 10.1-603.4:2 of the SWM Act.
2. Anyone who is contracted by a program VESCP
authority or a VSMP authority to perform any or all of the functions of
that authority as may be applicable. This person will be subject to the
same certification requirements as the authority.
3. Anyone voluntarily seeking certificates of competence from
the board for classifications described in 4VAC50-50-40 of this chapter.
4VAC50-50-40. Certificates of competence.
A. Certificates of competence shall be issued by the board in
accordance with the requirements of 4VAC50-50-50 for the following
classifications:
1. Program administrator for ESC. The person or
persons employed as the erosion and sediment control program VESCP
administrator.
2. Plan reviewer for ESC. The person or persons
who review conservation reviews ESC plans to be approved by the program
VESCP authority.
3. Inspector Project inspector for ESC. The
person or persons responsible for inspecting erosion and sediment
control practices to ensure compliance with the Virginia Erosion and Sediment
Control Law and Regulations.
4. Combined administrator for ESC. The person or
persons responsible for performing the combined duties of administration
program administrator, plan review reviewer and inspection
of regulated activities of a local program project inspector for a VESCP
authority.
5. Program administrator for SWM. The person employed as
the VSMP administrator.
6. Plan reviewer for SWM. The person who reviews SWM plans
to be approved by the VSMP authority.
7. Project inspector for SWM. The person responsible for
inspecting regulated activities to ensure compliance with the SWM Act and
Regulations.
8. Combined administrator for SWM. The person responsible
for performing the combined duties of program administrator, plan reviewer, and
project inspector for a VSMP authority.
B. Any person employed as a plan reviewer who is licensed as
a professional engineer, architect, certified landscape architect, or
land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title
54.1 of the Code of Virginia or as a professional soil scientist as defined
in Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia
shall qualify as a certified plan reviewer for ESC and will not require
a certificate of competence from the board. In lieu of a person holding this
board certificate of competence, such person shall produce a current
professional license or certification upon request of the department.
C. Any person who holds a level II certificate of
competence from the board in areas of plan review, project inspection or as a
program administrator which was obtained prior to adoption of the mandatory
certification as specified in § 10.1-561.1 B of the Act shall be deemed to
satisfy the requirements of that area of certification. Any certification
obtained before the adoption of the mandatory program which satisfies the
requirements will be valid until its previously scheduled expiration date valid
and unexpired certificate of competence issued by the board in the
classification of ESC or SWM, or who obtains such a certificate, and who later
successfully obtains an additional certificate of competence from the board in
the parallel ESC or SWM classification may surrender both certificates of
competence to the board and request in writing issuance of a dual certificate
showing certification in both classifications. Such a request must be made
while both of the ESC and SWM certificates of competence obtained are valid and
unexpired. The expiration date of the dual certificate shall be three years
from the date of expiration of the additional certificate acquired.
4VAC50-50-50. Eligibility requirements.
A. Certification may be obtained by satisfactorily completing
and submitting an application to the department for review and approval and:
1. By obtaining a total of six months 800 hours
of experience (800 hours) as a an ESC or SWM plan
reviewer, project inspector, or combined duties administrator
and obtaining a passing score on the certification examination administered by
the department in the applicable ESC or SWM area; or
2. By enrolling in and completing a board-approved training
program in the areas classifications of program administrator,
plan reviewer, project inspector, or combined administrator within 12
months of the time of enrollment (starting with the first training course
enrolled) and obtaining within one year of completion of the training
program a passing score on the certification examination administered by
the department in the applicable ESC or SWM area.
a. The training program for project inspectors for
ESC will consist of attending and completing courses/seminars in
"Basic Erosion and Sediment Control in Virginia" and "Erosion
and Sediment Control for Inspectors."
b. The training program for plan reviewers for ESC will
consist of attending and completing courses/seminars in "Basic Erosion and
Sediment Control in Virginia" and "Erosion and Sediment Control for
Plan Reviewers."
c. The training program for program administrators for ESC
will consist of attending the seminar "Basic Erosion and Sediment Control
in Virginia."
d. The training program for combined administrators for ESC
will consist of attending the courses/seminars "Basic Erosion and Sediment
Control in Virginia,", "Erosion and Sediment Control
for Inspectors," and "Erosion and Sediment Control for Plan
Reviewers."
e. The training program for project inspectors for SWM will
consist of attending and completing courses/seminars in "Basic Stormwater
Management in Virginia" and "Stormwater Management for
Inspectors."
f. The training program for plan reviewers for SWM will
consist of attending and completing courses/seminars in "Basic Stormwater
Management in Virginia" and "Stormwater Management for Plan
Reviewers."
g. The training program for program administrators for SWM
will consist of attending the seminar "Basic Stormwater Management in
Virginia."
h. The training program for combined administrators for SWM
will consist of attending the courses/seminars "Basic Stormwater
Management in Virginia," "Stormwater Management for Inspectors,"
and "Stormwater Management for Plan Reviewers."
B. Certification and recertification shall be valid
for three years and will expire on the last day of the expiration month except
as otherwise set out in 4VAC50-50-40 C or 4VAC50-50-90.
C. Recertification may be obtained for classifications
outlined in 4VAC50-50-40 of this chapter prior to the expiration date of a
certification by:
1. Obtaining a passing score on the certification examination;
or
2. Successfully completing a board-approved training program.
during the last 12 months of the term of the certificate but prior to its
expiration date;
3. Being a professional registered in the Commonwealth
pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the
Code of Virginia or a professional soil scientist as defined in Chapter 22 (§
54.1-2200 et seq.) of Title 54.1, and paying the required fee for
recertification. Such professionals shall be deemed to satisfy the provisions
of this subsection for classifications in subdivisions A 1 through 4 of
4VAC50-50-40. However, such professionals when in the classification of plan
reviewer for ESC shall be exempt from the recertification requirements and fees
of this chapter provided they maintain their professional license; or
4. Being a professional registered in the Commonwealth
pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the
Code of Virginia and paying the required fee for recertification. Such
professionals shall be deemed to satisfy the provisions of this subsection for
classifications in subdivisions A 5 through 8 of 4VAC50-50-40.
4VAC50-50-55. Classification acknowledgement for the
purposes of program compliance reviews.
For the purposes of VESCP or VSMP compliance reviews and
evaluations, the certification requirements of §§ 10.1-561.1 and
10.1-603.4:2 of the Code of Virginia shall be deemed to have been met if the
VESCP or the VSMP authority has a person or persons enrolled in the board's ESC
or SWM training programs for the necessary classifications and such person or
persons obtains certification within one year of completing the necessary
training programs.
4VAC50-50-60. Fees.
A. Application and, recertification, and
dual certificate issuance fees shall be collected to cover the
administrative cost for the certification program.
B. A fee will also be charged to present education and
training program courses/seminars which support the certification
program.
C. Fees are nonrefundable and shall not be prorated.
4VAC50-50-70. Examination.
A. A board approved examination shall be administered at
least twice a year.
B. An individual may take the certification examination for
the desired certificate of competence after fulfilling the prerequisite
experience requirement or completing a board-approved training program in
accordance with 4VAC50-50-50 of this chapter.
C. An individual who is unable to take an examination at the
time scheduled shall notify the department within 48 hours prior to the date of
the examination; such an individual may be rescheduled for the next
examination. Failure to notify the department may require an individual to
submit a new application and payment of fees in accordance with this chapter.
D. An applicant who is unsuccessful in passing an examination
will be allowed to pay the appropriate fee and retake the appropriate exam
within one year without resubmitting an application. After the one-year period
has elapsed, an applicant will be required to submit a new application with the
appropriate fee in accordance with this chapter in order to take the examination.
Application for examination must be received at least 60 days prior to the
scheduled examination by the department to be eligible to sit for the
examination.
E. An acceptable A minimum passing score of 70%
will be required on the appropriate certification exam exam(s).
F. All applicants will be notified in writing within 60 days
of the results of the examination.
4VAC50-50-80. Application.
A. Any person seeking certification by a combination of
experience and examination or by the combination of completion of the training
program and examination shall submit a completed application with the
appropriate fee(s) attached. The application shall contain the following:
1. The applicant's name, address, daytime phone number, social
security number, and name and address of business as well as the
date the application was filled out.
2. The classification of certification applying for as set
forth in 4VAC50-50-40 of this chapter, and if applying for initial
certification or recertification.
3. If any special arrangements must be provided for because of
a handicap.
4. A verification of all work experience signed and dated by
applicant's supervisor.
5. A signed and notarized affidavit confirming that all
statements in the application are believed to be true.
Incomplete applications will be returned to the applicant. All
applications must be received in the appropriate department office or by mail
post marked at least 60 days prior to the scheduled examination date in order
to be able to sit for the examination.
B. All applications of candidates will be reviewed by the
department to determine eligibility for certification. All applicants will be
notified of the results of the review within 30 days of receipt of the
application. Any applicant may appeal the review, in writing, to the board
within 30 days of the department's determination. No applicant will be approved
for certification unless they meet all requirements of this chapter.
C. Applicants who have been found ineligible to sit for an
examination may request further consideration by submitting a letter to the
board with the necessary evidence of additional qualifications. No additional
fee will be required provided that all requirements for certification are met
within one year from the date of original application.
4VAC50-50-90. Discipline of certified personnel.
The board may suspend, revoke or refuse to grant or renew the
certification of any person if the board, in an informational fact finding
under § 9-6.14:11 § 2.2-4019 of the Code of Virginia, finds that:
1. The certification was obtained or renewed thorough fraud or
misinterpretation;
2. The certified person has violated or cooperated with others
in violating any provision of this chapter;
3. The certified person has not demonstrated reasonable care,
judgment, or application of his knowledge and ability in the performance of his
duties; or
4. The certified person has made any material
misrepresentation in the course of performing his duties.
VA.R. Doc. No. R13-3316; Filed October 3, 2012, 9:05 a.m.
Final Regulation
REGISTRAR'S NOTICE:
The Virginia Soil and Water Conservation Board is claiming an exemption from
the Administrative Process Act in accordance with (i) § 2.2-4006 A 2,
which excludes regulations that establish or prescribe agency organization,
internal practice or procedures, including delegations of authority; (ii)
§ 2.2-4006 A 3 of the Code of Virginia, which excludes regulations that
consist only of changes in style or form or corrections of technical errors;
(ii) § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations
that are necessary to conform to changes in Virginia statutory law where no
agency discretion is involved; and (iv) § 2.2-4006 A 4 c of the Code of
Virginia, which excludes regulations that are necessary to meet the
requirements of federal law or regulations, provided such regulations do not
differ materially from those required by federal law or regulation. The
Virginia Soil and Water Conservation Board will receive, consider, and respond
to petitions by any interested person at any time with respect to
reconsideration or revision.
Title of Regulation: 4VAC50-60. Virginia Stormwater
Management Program (VSMP) Permit Regulations (amending 4VAC50-60-10, 4VAC50-60-20,
4VAC50-60-30, 4VAC50-60-40, 4VAC50-60-45, 4VAC50-60-47, 4VAC50-60-47.1,
4VAC50-60-48, 4VAC50-60-51, 4VAC50-60-54, 4VAC50-60-55, 4VAC50-60-57,
4VAC50-60-58, 4VAC50-60-59, 4VAC50-60-62, 4VAC50-60-63, 4VAC50-60-65,
4VAC50-60-66, 4VAC50-60-69, 4VAC50-60-72, 4VAC50-60-76, 4VAC50-60-92,
4VAC50-60-93.1, 4VAC50-60-95, 4VAC50-60-96, 4VAC50-60-97, 4VAC50-60-100,
4VAC50-60-102, 4VAC50-60-103, 4VAC50-60-104, 4VAC50-60-106, 4VAC50-60-108,
4VAC50-60-112, 4VAC50-60-114, 4VAC50-60-116, 4VAC50-60-118, 4VAC50-60-122,
4VAC50-60-126, 4VAC50-60-142, 4VAC50-60-144, 4VAC50-60-146, 4VAC50-60-148,
4VAC50-60-150, 4VAC50-60-160, 4VAC50-60-170, 4VAC50-60-180, 4VAC50-60-200,
4VAC50-60-210, 4VAC50-60-300, 4VAC50-60-310, 4VAC50-60-320, 4VAC50-60-330,
4VAC50-60-340, 4VAC50-60-350, 4VAC50-60-360, 4VAC50-60-370, 4VAC50-60-380,
4VAC50-60-390, 4VAC50-60-400, 4VAC50-60-410, 4VAC50-60-420, 4VAC50-60-430,
4VAC50-60-440, 4VAC50-60-450, 4VAC50-60-460, 4VAC50-60-470, 4VAC50-60-480,
4VAC50-60-490, 4VAC50-60-500, 4VAC50-60-510, 4VAC50-60-520, 4VAC50-60-530,
4VAC50-60-540, 4VAC50-60-550, 4VAC50-60-560, 4VAC50-60-570, 4VAC50-60-580,
4VAC50-60-590, 4VAC50-60-610, 4VAC50-60-620, 4VAC50-60-630, 4VAC50-60-640,
4VAC50-60-650, 4VAC50-60-660, 4VAC50-60-680, 4VAC50-60-700, 4VAC50-60-730,
4VAC50-60-740, 4VAC50-60-750, 4VAC50-60-760, 4VAC50-60-770, 4VAC50-60-780,
4VAC50-60-790, 4VAC50-60-800, 4VAC50-60-810, 4VAC50-60-820, 4VAC50-60-825,
4VAC50-60-830, 4VAC50-60-1100, 4VAC50-60-1110, 4VAC50-60-1130, 4VAC50-60-1140,
4VAC50-60-1150, 4VAC50-60-1160, 4VAC50-60-1170, 4VAC50-60-1200, 4VAC50-60-1210,
4VAC50-60-1220, 4VAC50-60-1230, 4VAC50-60-1240).
Statutory Authority: §§ 10.1-603.2:1 and 10.1-603.4
of the Code of Virginia .
Effective Date: November 21, 2012.
Agency Contact: David C. Dowling, Policy and Planning
Director, Department of Conservation and Recreation, 203 Governor Street, Suite
302, Richmond, VA 23219, telephone (804) 786-2291, FAX (804) 786-6141, or email
david.dowling@dcr.virginia.gov.
Background: The majority of the amendments conform the
Virginia Stormwater Management Program (VSMP) Permit Regulations (4VAC50-60) to
changes in Virginia law in response to the Erosion and Sediment Control,
Stormwater Management, and Chesapeake Bay Preservation Acts integration of
programs bill (Chapters
785 and 819 of the 2012 Acts of Assembly). The legislation integrated elements
of the Erosion and Sediment Control Act, the Stormwater Management Act, and the
Chesapeake Bay Preservation Act so that those regulatory programs could be
implemented in a consolidated and consistent manner, resulting in greater
efficiencies for those being regulated. The bill also abolished the Chesapeake
Bay Local Assistance Board and transferred its powers and responsibilities to
the Virginia Soil and Water Conservation Board. Accordingly, this consolidation
legislation resulted in necessary amendments to each of the referenced
regulations.
This specific action also includes an amendment to meet the
federal requirements of the Effluent Limitations Guidelines set out in the
Federal Register at 74 FR 63057; December 1, 2009; Page 63057 - Construction
and Development Effluent Guidelines; 450.21 Effluent limitations reflecting the
best practicable technology currently available (BPT); (f) Surface Outlets.
When discharging from basins and impoundments, utilize outlet structures that
withdraw water from the surface, unless infeasible.
Summary:
Amendments address style, form, and corrections of
technical errors, as well as reflect board internal practice and procedures.
The substantive elements of this action include:
1. Global updates throughout the regulation to include (i)
inserting "state" before "permit" to differentiate it
from a locality's VSMP permit; (ii) changing "permit issuing
authority" to "VSMP authority, department, or board" or a
combination of these selections as may be applicable; (iii) changing
"local stormwater management program" or "local program" to
"VSMP"; (iv) changing "plan approval authority" to
"VSMP authority"; (v) changing "qualifying local stormwater
management program" or "qualifying local program" to "VSMP
authority" or "VSMP"; (vi) changing "stormwater
program administrative authority" to "VSMP authority, department, or
board" or a combination or derivation of these selections; (vii) changing
"local erosion and sediment control program" to "VESCP";
and (viii) clarifying where necessary different requirements between a
locality's VSMP authority and other VSMP authorities.
2. Amending, adding or removing a variety of definitions.
3. Adding a missing Effluent Limitation Guideline to comply
with federal regulation.
4. Clarifying that linear projects are no longer exempt and
must now control postdevelopment stormwater runoff in accordance with a
site-specific stormwater management plan or a comprehensive watershed
stormwater management plan. This action is in accordance with amendments made
to § 10.1-603.7 of the Code of Virginia that conformed state law to
federal requirements.
5. Stipulating that the provisions of the Administrative
Process Act (§ 2.2-4000 et seq.) shall not apply to decisions
rendered by localities but appeals shall be conducted in accordance with local
appeal procedures. This change ensures conformance with § 10.1-603.13
of the Code of Virginia.
6. Clarifying the review procedure for a Virginia
Stormwater Management Program by the department. Introduces the "term
corrective action agreements" that is already utilized in the Erosion and
Sediment Control Program. Also stipulates that the department shall provide
results and compliance recommendations to the board in the form of a corrective
action agreement if deficiencies are found within 120 days of the completion of
a review, otherwise the board may find the program compliant.
7. Updating the application process and adoption timelines
that all localities must follow that are required to adopt a VSMP or towns
electing to adopt a VSMP. Striking language that requires the department under
certain circumstances to operate a local VSMP in accordance with changes in the
law as this is no longer the practice. Clarifying annual standards and
specifications and state permit coverage requirements for state agency
projects.
8. Clarifying state and local authorities regarding the
establishment of fees to support program activities under the Stormwater
Management Act and this chapter including a VSMP authority's ability to raise
or lower fees set out in the statewide fee schedule. Making technical
corrections to antiquated terms such as qualifying local program by replacing
it with VSMP authority or VSMP as found to be applicable.
9. Stipulating the department's authority (pursuant to § 10.1-603.4
of the Code of Virginia) to assess reinspection fees to recoup the costs
associated with each visit to a land-disturbing project site that was necessary
to check on the status of project site items noted to be in noncompliance and
documented as such on a prior project inspection and assess business
transaction costs associated with the processing of credit card payments.
10. Clarifying procedural items in the section on fees
(pursuant to § 10.1-603.4 of the Code of Virginia) for an individual permit or
coverage under the General Permit for Discharges of Stormwater from
Construction Activities as follows:
a. Clarifying that the department will charge $750 for
large construction activities and $450 for small construction activities upon
the effective date of the regulations;
b. Clarifying the applicant's fee of 28% payable to the
department;.
c. Clarifying fees for a Chesapeake Bay Preservation Act
Land-Disturbing Activity;
d. Removing fees associated with Small Construction
Activity/Land Clearing of sites within designated areas of Chesapeake Bay Act
localities;
e. Making parallel changes where applicable in permit
modification fees and in maintenance fees.
Part I
Definitions, Purpose, and Applicability
4VAC50-60-10. Definitions.
The following words and terms used in this chapter have the
following meanings unless the context clearly indicates otherwise.
"Act" means the Virginia Stormwater Management Act,
Article 1.1 (§ 10.1-603.1 et seq.) of Chapter 6 of Title 10.1 of the Code of
Virginia.
"Administrator" means the Administrator of the
United States Environmental Protection Agency or an authorized representative.
"Applicable standards and limitations" means all
state, interstate, and federal standards and limitations to which a discharge
or a related activity is subject under the Clean Water Act (CWA) (33 USC
§ 1251 et seq.) and the Act, including effluent limitations, water quality
standards, standards of performance, toxic effluent standards or prohibitions,
best management practices, and standards for sewage sludge use or disposal
under §§ 301, 302, 303, 304, 306, 307, 308, 403 and 405 of CWA.
"Approval authority" means the Virginia Soil and
Water Conservation Board or its designee.
"Approved program" or "approved state"
means a state or interstate program that has been approved or authorized by EPA
under 40 CFR Part 123 (2000).
"Average monthly discharge limitation" means the
highest allowable average of daily discharges over a calendar month, calculated
as the sum of all daily discharges measured during a calendar month divided by
the number of daily discharges measured during that month.
"Average weekly discharge limitation" means the
highest allowable average of daily discharges over a calendar week, calculated
as the sum of all daily discharges measured during a calendar week divided by
the number of daily discharges measured during that week.
"Best management practice" or "BMP" means
schedules of activities, prohibitions of practices, including both structural
and nonstructural practices, maintenance procedures, and other management
practices to prevent or reduce the pollution of surface waters and groundwater
systems from the impacts of land-disturbing activities.
"Board" means the Virginia Soil and Water
Conservation Board.
"Bypass" means the intentional diversion of waste
streams from any portion of a treatment facility.
"Channel" means a natural or manmade waterway.
"Chesapeake Bay Preservation Act land-disturbing
activity" means a land-disturbing activity including clearing, grading, or
excavation that results in a land disturbance equal to or greater than 2,500
square feet and less than one acre in all areas of jurisdictions designated as
subject to the Chesapeake Bay Preservation Area Designation and Management
Regulations (9VAC10-20) (4VAC50-90) adopted pursuant to the
Chesapeake Bay Preservation Act.
"Chesapeake Bay watershed" means all land areas
draining to the following Virginia river basins: Potomac River Basin, James
River Basin, Rappahannock River Basin, Chesapeake Bay and its small coastal
basins, and York River Basin.
"Common plan of development or sale" means a
contiguous area where separate and distinct construction activities may be
taking place at different times on different schedules.
"Comprehensive stormwater management plan" means a
plan, which may be integrated with other land use plans or regulations, that
specifies how the water quality components, quantity components, or both of
stormwater are to be managed on the basis of an entire watershed or a portion
thereof. The plan may also provide for the remediation of erosion, flooding,
and water quality and quantity problems caused by prior development.
"Construction activity" means any clearing, grading
or excavation associated with large construction activity or associated with
small construction activity.
"Contiguous zone" means the entire zone established
by the United States under Article 24 of the Convention on the Territorial Sea
and the Contiguous Zone (37 FR 11906 June 15, 1972).
"Continuous discharge" means a discharge which
occurs without interruption throughout the operating hours of the facility,
except for infrequent shutdowns for maintenance, process changes, or other
similar activities.
"Control measure" means any BMP, stormwater
facility, or other method used to minimize the discharge of pollutants to state
waters.
"Co-operator" means an operator of a VSMP state
permit that is only responsible for state permit conditions relating to
the discharge for which it is the operator.
"Clean Water Act" or "CWA" means the
federal Clean Water Act (33 USC § 1251 et seq.), formerly referred to as the
Federal Water Pollution Control Act or Federal Water Pollution Control Act
Amendments of 1972, Public Law 92-500, as amended by Public Law 95-217, Public
Law 95-576, Public Law 96-483, and Public Law 97-117, or any subsequent
revisions thereto.
"CWA and regulations" means the Clean Water Act
(CWA) and applicable regulations published in the Code of Federal Regulations
promulgated thereunder. For the purposes of this chapter, it includes state
program requirements.
"Daily discharge" means the discharge of a
pollutant measured during a calendar day or any 24-hour period that reasonably
represents the calendar day for purposes of sampling. For pollutants with
limitations expressed in units of mass, the daily discharge is calculated as
the total mass of the pollutant discharged over the day. For pollutants with
limitations expressed in other units of measurement, the daily discharge is
calculated as the average measurement of the pollutant over the day.
"Department" means the Department of Conservation
and Recreation.
"Development" means land disturbance and the
resulting landform associated with the construction of residential, commercial,
industrial, institutional, recreation, transportation, or utility facilities or
structures or the clearing of land for nonagricultural or nonsilvicultural
purposes. The regulation of discharges from development, for purposes of these
regulations, does not include the exemptions found in 4VAC50-60-300.
"Direct discharge" means the discharge of a
pollutant.
"Director" means the Director of the Department of
Conservation and Recreation or his designee.
"Discharge," when used without qualification, means
the discharge of a pollutant.
"Discharge of a pollutant" means:
1. Any addition of any pollutant or combination of pollutants
to state waters from any point source; or
2. Any addition of any pollutant or combination of pollutants
to the waters of the contiguous zone or the ocean from any point source other
than a vessel or other floating craft which is being used as a means of
transportation.
This definition includes additions of pollutants into surface
waters from: surface runoff that is collected or channeled by man; discharges
through pipes, sewers, or other conveyances owned by a state, municipality, or
other person that do not lead to a treatment works; and discharges through
pipes, sewers, or other conveyances, leading into privately owned treatment
works. This term does not include an addition of pollutants by any indirect
discharger.
"Discharge Monitoring Report" or "DMR"
means the form supplied by the department, or an equivalent form developed by
the operator and approved by the board, for the reporting of self-monitoring
results by operators.
"Draft state permit" means a document
indicating the board's tentative decision to issue or deny, modify, revoke and
reissue, terminate, or reissue a state permit. A notice of intent to
terminate a state permit, and a notice of intent to deny a state
permit are types of draft state permits. A denial of a request for
modification, revocation and reissuance, or termination is not a draft state
permit. A proposed state permit is not a draft state permit.
"Drainage area" means a land area, water area, or
both from which runoff flows to a common point.
"Effluent limitation" means any restriction imposed
by the board on quantities, discharge rates, and concentrations of pollutants
which are discharged from point sources into surface waters, the waters of the
contiguous zone, or the ocean.
"Effluent limitations guidelines" means a
regulation published by the administrator under § 304(b) of the CWA to adopt or
revise effluent limitations.
"Environmental Protection Agency" or
"EPA" means the United States Environmental Protection Agency.
"Existing state permit" means for the
purposes of this chapter a state permit issued by the permit-issuing
authority board and currently held by a state permit
applicant.
"Existing source" means any source that is not a
new source or a new discharger.
"Facilities or equipment" means buildings,
structures, process or production equipment or machinery that form a permanent
part of a new source and that will be used in its operation, if these
facilities or equipment are of such value as to represent a substantial
commitment to construct. It excludes facilities or equipment used in connection
with feasibility, engineering, and design studies regarding the new source or
water pollution treatment for the new source.
"Facility or activity" means any VSMP point
source or treatment works treating domestic sewage or any other facility or
activity (including land or appurtenances thereto) that is subject to
regulation under the VSMP.
"Flood fringe" means the portion of the floodplain
outside the floodway that is usually covered with water from the 100-year flood
or storm event. This includes, but is not limited to, the flood or floodway
fringe designated by the Federal Emergency Management Agency.
"Flooding" means a volume of water that is too
great to be confined within the banks or walls of the stream, water body or
conveyance system and that overflows onto adjacent lands, thereby causing or
threatening damage.
"Floodplain" means the area adjacent to a channel,
river, stream, or other water body that is susceptible to being inundated by
water normally associated with the 100-year flood or storm event. This
includes, but is not limited to, the floodplain designated by the Federal
Emergency Management Agency.
"Flood-prone area" means the component of a natural
or restored stormwater conveyance system that is outside the main channel.
Flood-prone areas may include, but are not limited to, the floodplain, the
floodway, the flood fringe, wetlands, riparian buffers, or other areas adjacent
to the main channel.
"Floodway" means the channel of a river or other
watercourse and the adjacent land areas, usually associated with flowing water,
that must be reserved in order to discharge the 100-year flood or storm event
without cumulatively increasing the water surface elevation more than one foot.
This includes, but is not limited to, the floodway designated by the Federal
Emergency Management Agency.
"General permit" means a VSMP state
permit authorizing a category of discharges under the CWA and the Act within a
geographical area of the Commonwealth of Virginia.
"Hazardous substance" means any substance
designated under the Code of Virginia or 40 CFR Part 116 (2000) pursuant to §
311 of the CWA.
"Hydrologic Unit Code" or "HUC" means a
watershed unit established in the most recent version of Virginia's 6th Order
National Watershed Boundary Dataset.
"Illicit discharge" means any discharge to a
municipal separate storm sewer that is not composed entirely of stormwater,
except discharges pursuant to a VPDES or VSMP state permit (other
than the VSMP state permit for discharges from the municipal
separate storm sewer), discharges resulting from fire fighting activities, and
discharges identified by and in compliance with 4VAC50-60-1220 C 2.
"Impervious cover" means a surface composed of
material that significantly impedes or prevents natural infiltration of water
into soil.
"Incorporated place" means a city, town, township,
or village that is incorporated under the Code of Virginia.
"Indian country" means (i) all land within the
limits of any Indian reservation under the jurisdiction of the United States
government, notwithstanding the issuance of any patent, and including
rights-of-way running through the reservation; (ii) all dependent Indian
communities with the borders of the United States whether within the originally
or subsequently acquired territory thereof, and whether within or without the
limits of a state; and (iii) all Indian allotments, the Indian titles to which
have not been extinguished, including rights-of-way running through the same.
"Indirect discharger" means a nondomestic
discharger introducing "pollutants" to a "publicly owned
treatment works (POTW)."
"Inspection" means an on-site review of the
project's compliance with the permit or the state permit, the local
stormwater management program VSMP, and any applicable design
criteria, or an on-site review to obtain information or conduct surveys or
investigations necessary in the implementation or enforcement of the Act
and this chapter.
"Interstate agency" means an agency of two or more
states established by or under an agreement or compact approved by Congress, or
any other agency of two or more states having substantial powers or duties
pertaining to the control of pollution as determined and approved by the
administrator under the CWA and regulations.
"Karst area" means any land area predominantly
underlain at the surface or shallow subsurface by limestone, dolomite, or other
soluble bedrock regardless of any obvious surface karst features.
"Karst features" means sinkholes, sinking and
losing streams, caves, large flow springs, and other such landscape features
found in karst areas.
"Land disturbance" or "land-disturbing
activity" means a manmade change to the land surface that potentially
changes its runoff characteristics including any clearing, grading, or
excavation associated with a construction activity regulated pursuant to the
CWA, the Act, and this chapter or with a Chesapeake Bay Preservation Act
land-disturbing activity regulated pursuant to the Act and this chapter,
except that the term shall not include those exemptions specified in § 10.1-603.8
of the Code of Virginia.
"Large construction activity" means construction
activity including clearing, grading and excavation, except operations that
result in the disturbance of less than five acres of total land area. Large
construction activity also includes the disturbance of less than five acres of
total land area that is a part of a larger common plan of development or sale
if the larger common plan will ultimately disturb five acres or more. Large
construction activity does not include routine maintenance that is performed to
maintain the original line and grade, hydraulic capacity, or original purpose
of the facility.
"Large municipal separate storm sewer system" means
all municipal separate storm sewers that are either:
1. Located in an incorporated place with a population of
250,000 or more as determined by the 1990 decennial census by the Bureau of
Census (40 CFR Part 122 Appendix F (2000));
2. Located in the counties listed in 40 CFR Part 122 Appendix
H (2000), except municipal separate storm sewers that are located in the
incorporated places, townships or towns within such counties;
3. Owned or operated by a municipality other than those
described in subdivision 1 or 2 of this definition and that are designated by
the board as part of the large or medium municipal separate storm sewer system
due to the interrelationship between the discharges of the designated storm
sewer and the discharges from municipal separate storm sewers described under
subdivision 1 or 2 of this definition. In making this determination the board
may consider the following factors:
a. Physical interconnections between the municipal separate
storm sewers;
b. The location of discharges from the designated municipal
separate storm sewer relative to discharges from municipal separate storm
sewers described in subdivision 1 of this definition;
c. The quantity and nature of pollutants discharged to surface
waters;
d. The nature of the receiving surface waters; and
e. Other relevant factors.
4. The board may, upon petition, designate as a large
municipal separate storm sewer system, municipal separate storm sewers located
within the boundaries of a region defined by a stormwater management regional
authority based on a jurisdictional, watershed, or other appropriate basis that
includes one or more of the systems described in this definition.
"Layout" means a conceptual drawing sufficient to
provide for the specified stormwater management facilities required at the time
of approval.
"Linear development project" means a land-disturbing
activity that is linear in nature such as, but not limited to, (i) the
construction of electric and telephone utility lines, and natural gas
pipelines; (ii) construction of tracks, rights-of-way, bridges, communication
facilities and other related structures of a railroad company; (iii) highway
construction projects; (iv) construction of stormwater channels and stream
restoration activities; and (v) water and sewer lines. Private subdivision
roads or streets shall not be considered linear development projects.
"Local stormwater management program" or
"local program" means the various methods employed by a locality to
manage the quality and quantity of runoff resulting from land-disturbing
activities and shall include such items as local ordinances, permit
requirements, policies and guidelines, technical materials, plan review,
inspection, enforcement, and evaluation consistent with the Act and this
chapter. Upon board approval of a local stormwater management program, it shall
be recognized as a qualifying local program.
"Locality" means a county, city, or town.
"Localized flooding" means smaller scale flooding
that may occur outside of a stormwater conveyance system. This may include high
water, ponding, or standing water from stormwater runoff, which is likely to
cause property damage or unsafe conditions.
"Main channel" means the portion of the stormwater
conveyance system that contains the base flow and small frequent storm events.
"Major facility" means any VSMP facility or
activity classified as such by the regional administrator in conjunction with
the board.
"Major modification" means, for the purposes of
this chapter, the modification or amendment of an existing state permit
before its expiration that is not a minor modification as defined in this
regulation.
"Major municipal separate storm sewer outfall" or
"major outfall" means a municipal separate storm sewer outfall that
discharges from a single pipe with an inside diameter of 36 inches or more or
its equivalent (discharge from a single conveyance other than circular pipe
which is associated with a drainage area of more than 50 acres); or for
municipal separate storm sewers that receive stormwater from lands zoned for
industrial activity (based on comprehensive zoning plans or the equivalent),
with an outfall that discharges from a single pipe with an inside diameter of
12 inches or more or from its equivalent (discharge from other than a circular
pipe associated with a drainage area of two acres or more).
"Manmade" means constructed by man.
"Maximum daily discharge limitation" means the
highest allowable daily discharge.
"Maximum extent practicable" or "MEP"
means the technology-based discharge standard for municipal separate storm
sewer systems established by CWA § 402(p). MEP is achieved, in part, by
selecting and implementing effective structural and nonstructural best
management practices (BMPs) and rejecting ineffective BMPs and replacing them
with effective best management practices (BMPs). MEP is an iterative standard,
which evolves over time as urban runoff management knowledge increases. As
such, the operator's MS4 program must continually be assessed and modified to
incorporate improved programs, control measures, BMPs, etc., to attain
compliance with water quality standards.
"Medium municipal separate storm sewer system"
means all municipal separate storm sewers that are either:
1. Located in an incorporated place with a population of
100,000 or more but less than 250,000 as determined by the 1990 decennial
census by the Bureau of Census (40 CFR Part 122 Appendix G (2000));
2. Located in the counties listed in 40 CFR Part 122 Appendix
I (2000), except municipal separate storm sewers that are located in the incorporated
places, townships or towns within such counties;
3. Owned or operated by a municipality other than those
described in subdivision 1 or 2 of this definition and that are designated by
the board as part of the large or medium municipal separate storm sewer system
due to the interrelationship between the discharges of the designated storm
sewer and the discharges from municipal separate storm sewers described under
subdivision 1 or 2 of this definition. In making this determination the board
may consider the following factors:
a. Physical interconnections between the municipal separate
storm sewers;
b. The location of discharges from the designated municipal
separate storm sewer relative to discharges from municipal separate storm
sewers described in subdivision 1 of this definition;
c. The quantity and nature of pollutants discharged to surface
waters;
d. The nature of the receiving surface waters; or
e. Other relevant factors.
4. The board may, upon petition, designate as a medium
municipal separate storm sewer system, municipal separate storm sewers located
within the boundaries of a region defined by a stormwater management regional
authority based on a jurisdictional, watershed, or other appropriate basis that
includes one or more of the systems described in subdivisions 1, 2 and 3 of
this definition.
"Minor modification" means, for the purposes of
this chapter, minor modification or amendment of an existing state
permit before its expiration for the reasons listed at 40 CFR 122.63 and as
specified in 4VAC50-60-640. Minor modification for the purposes of this chapter
also means other modifications and amendments not requiring extensive review
and evaluation including, but not limited to, changes in EPA promulgated test
protocols, increasing monitoring frequency requirements, changes in sampling
locations, and changes to compliance dates within the overall compliance
schedules. A minor state permit modification or amendment does not
substantially alter state permit conditions, substantially increase or
decrease the amount of surface water impacts, increase the size of the
operation, or reduce the capacity of the facility to protect human health or
the environment.
"Municipal separate storm sewer" means a conveyance
or system of conveyances otherwise known as a municipal separate storm sewer
system, including roads with drainage systems, municipal streets, catch basins,
curbs, gutters, ditches, manmade channels, or storm drains:
1. Owned or operated by a federal, state, city, town, county,
district, association, or other public body, created by or pursuant to state
law, having jurisdiction or delegated authority for erosion and sediment
control and stormwater management, or a designated and approved management
agency under § 208 of the CWA that discharges to surface waters;
2. Designed or used for collecting or conveying stormwater;
3. That is not a combined sewer; and
4. That is not part of a publicly owned treatment works.
"Municipal separate storm sewer system" or
"MS4" means all separate storm sewers that are defined as
"large" or "medium" or "small" municipal separate
storm sewer systems or designated under 4VAC50-60-380 A 1.
"Municipal Separate Storm Sewer System Management
Program" or "MS4 Program" means a management program covering
the duration of a state permit for a municipal separate storm sewer
system that includes a comprehensive planning process that involves public
participation and intergovernmental coordination, to reduce the discharge of
pollutants to the maximum extent practicable, to protect water quality, and to
satisfy the appropriate water quality requirements of the CWA and regulations
and the Act and attendant regulations, using management practices, control
techniques, and system, design and engineering methods, and such other provisions
that are appropriate.
"Municipality" means a city, town, county,
district, association, or other public body created by or under state law and
having jurisdiction over disposal of sewage, industrial wastes, or other
wastes, or an Indian tribe or an authorized Indian tribal organization, or a
designated and approved management agency under § 208 of the CWA.
"National Pollutant Discharge Elimination System"
or "NPDES" means the national program for issuing, modifying,
revoking and reissuing, terminating, monitoring and enforcing state
permits, and imposing and enforcing pretreatment requirements under
§§ 307, 402, 318, and 405 of the CWA. The term includes an approved
program.
"Natural channel design concepts" means the
utilization of engineering analysis based on fluvial geomorphic processes to
create, rehabilitate, restore, or stabilize an open conveyance system for the
purpose of creating or recreating a stream that conveys its bankfull storm
event within its banks and allows larger flows to access its floodplain.
"Natural stream" means a tidal or nontidal
watercourse that is part of the natural topography. It usually maintains a
continuous or seasonal flow during the year and is characterized as being
irregular in cross-section with a meandering course. Constructed channels such
as drainage ditches or swales shall not be considered natural streams; however,
channels designed utilizing natural channel design concepts may be considered
natural streams.
"New discharger" means any building, structure,
facility, or installation:
1. From which there is or may be a discharge of pollutants;
2. That did not commence the discharge of pollutants at a
particular site prior to August 13, 1979;
3. Which is not a new source; and
4. Which has never received a finally effective VPDES or VSMP
state permit for discharges at that site.
This definition includes an indirect discharger that
commences discharging into surface waters after August 13, 1979. It also
includes any existing mobile point source (other than an offshore or coastal
oil and gas exploratory drilling rig or a coastal oil and gas developmental
drilling rig) such as a seafood processing rig, seafood processing vessel, or
aggregate plant, that begins discharging at a site for which it does not have a
VPDES or state permit; and any offshore or coastal mobile oil and gas
exploratory drilling rig or coastal mobile oil and gas developmental drilling
rig that commences the discharge of pollutants after August 13, 1979.
"New permit" means, for the purposes of this chapter,
a state permit issued by the permit-issuing authority board
to a state permit applicant that does not currently hold and has never
held a state permit of that type, for that activity, at that location.
"New source," means any building, structure, facility,
or installation from which there is or may be a discharge of pollutants, the
construction of which commenced:
1. After promulgation of standards of performance under
§ 306 of the CWA that are applicable to such source; or
2. After proposal of standards of performance in accordance
with § 306 of the CWA that are applicable to such source, but only if the
standards are promulgated in accordance with § 306 of the CWA within 120 days
of their proposal.
"Nonpoint source pollution" means pollution such as
sediment, nitrogen and, phosphorous, hydrocarbons, heavy metals,
and toxics whose sources cannot be pinpointed but rather are washed from the
land surface in a diffuse manner by stormwater runoff.
"Operator" means the owner or operator of any
facility or activity subject to the VSMP permit regulation Act and
this chapter. In the context of stormwater associated with a large or small
construction activity, operator means any person associated with a construction
project that meets either of the following two criteria: (i) the person has
direct operational control over construction plans and specifications,
including the ability to make modifications to those plans and specifications
or (ii) the person has day-to-day operational control of those activities at a
project that are necessary to ensure compliance with a stormwater pollution
prevention plan for the site or other state permit or VSMP authority
permit conditions (i.e., they are authorized to direct workers at a site to
carry out activities required by the stormwater pollution prevention plan or
comply with other permit conditions). In the context of stormwater discharges
from Municipal Separate Storm Sewer Systems (MS4s), operator means the operator
of the regulated MS4 system.
"Outfall" means, when used in reference to
municipal separate storm sewers, a point source at the point where a municipal
separate storm sewer discharges to surface waters and does not include open
conveyances connecting two municipal separate storm sewers, or pipes, tunnels
or other conveyances which connect segments of the same stream or other surface
waters and are used to convey surface waters.
"Overburden" means any material of any nature,
consolidated or unconsolidated, that overlies a mineral deposit, excluding
topsoil or similar naturally occurring surface materials that are not disturbed
by mining operations.
"Owner" means the Commonwealth or any of its
political subdivisions including, but not limited to, sanitation district
commissions and authorities, and any public or private institution,
corporation, association, firm or company organized or existing under the laws
of this or any other state or country, or any officer or agency of the United
States, or any person or group of persons acting individually or as a group that
owns, operates, charters, rents, or otherwise exercises control over or is
responsible for any actual or potential discharge of sewage, industrial wastes,
or other wastes or pollutants to state waters, or any facility or operation
that has the capability to alter the physical, chemical, or biological
properties of state waters in contravention of § 62.1-44.5 of the Code of
Virginia, the Act and this chapter.
"Peak flow rate" means the maximum instantaneous
flow from a prescribed design storm at a particular location.
"Percent impervious" means the impervious area
within the site divided by the area of the site multiplied by 100.
"Permit" or "VSMP authority permit"
means an approval to conduct a land-disturbing activity issued by the permit-issuing
VSMP authority for the initiation of a land-disturbing activity or
for stormwater discharges from an MS4 after evidence of general permit
coverage has been provided where applicable. Permit does not include any
permit that has not yet been the subject of final permit-issuing authority
action, such as a draft permit or a proposed permit.
"Permit-issuing authority" means the board, the
department, or a locality that is delegated authority by the board to issue,
deny, revoke, terminate, or amend stormwater permits under the provisions of
the Act and this chapter.
"Permittee" means the person or locality to
which the state permit or VSMP authority permit is issued,
including any owner or operator whose construction site is covered under a state
construction general permit.
"Person" means any individual, corporation,
partnership, association, state, municipality, commission, or political
subdivision of a state, governmental body (including but not limited to a
federal, state, or local entity), including a federal, state, or local
entity as applicable, any interstate body or any other legal entity.
"Point of discharge" means a location at which
concentrated stormwater runoff is released.
"Point source" means any discernible, confined, and
discrete conveyance including, but not limited to, any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated
animal feeding operation, landfill leachate collection system, vessel, or other
floating craft from which pollutants are or may be discharged. This term does
not include return flows from irrigated agriculture or agricultural stormwater
runoff.
"Pollutant" means dredged spoil, solid waste,
incinerator residue, filter backwash, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological materials, radioactive materials (except
those regulated under the Atomic Energy Act of 1954, as amended (42 USC
§ 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar
dirt and industrial, municipal, and agricultural waste discharged into water.
It does not mean:
1. Sewage from vessels; or
2. Water, gas, or other material that is injected into a well
to facilitate production of oil or gas, or water derived in association with
oil and gas production and disposed of in a well if the well used either to
facilitate production or for disposal purposes is approved by the board and if
the board determines that the injection or disposal will not result in the
degradation of ground or surface water resources.
"Pollutant discharge" means the average amount of a
particular pollutant measured in pounds per year or other standard reportable
unit as appropriate, delivered by stormwater runoff.
"Pollution" means such alteration of the physical,
chemical or biological properties of any state waters as will or is likely to
create a nuisance or render such waters (a) harmful or detrimental or injurious
to the public health, safety or welfare, or to the health of animals, fish or
aquatic life; (b) unsuitable with reasonable treatment for use as present or
possible future sources of public water supply; or (c) unsuitable for
recreational, commercial, industrial, agricultural, or other reasonable uses,
provided that (i) an alteration of the physical, chemical, or biological
property of state waters, or a discharge or deposit of sewage, industrial
wastes or other wastes to state waters by any owner which by itself is not
sufficient to cause pollution, but which, in combination with such alteration
of or discharge or deposit to state waters by other owners, is sufficient to
cause pollution; (ii) the discharge of untreated sewage by any owner into state
waters; and (iii) contributing to the contravention of standards of water
quality duly established by the State Water Control Board, are "pollution"
for the terms and purposes of this chapter.
"Postdevelopment" refers to conditions that
reasonably may be expected or anticipated to exist after completion of the land
development activity on a specific site.
"Predevelopment" refers to the conditions that
exist at the time that plans for the land development of a tract of land are
submitted to the plan approval VSMP authority. Where phased
development or plan approval occurs (preliminary grading, demolition of
existing structures, roads and utilities, etc.), the existing conditions at the
time prior to the first item being submitted shall establish predevelopment
conditions.
"Prior developed lands" means land that has been
previously utilized for residential, commercial, industrial, institutional,
recreation, transportation or utility facilities or structures, and that will
have the impervious areas associated with those uses altered during a
land-disturbing activity.
"Privately owned treatment works" or
"PVOTW" means any device or system that is (i) used to treat wastes
from any facility whose operator is not the operator of the treatment works and
(ii) not a POTW.
"Proposed state permit" means a VSMP state
permit prepared after the close of the public comment period (and, when
applicable, any public hearing and administrative appeals) that is sent to EPA
for review before final issuance. A proposed state permit is not a draft
state.
"Publicly owned treatment works" or
"POTW" means a treatment works as defined by § 212 of the CWA
that is owned by a state or municipality (as defined by § 502(4) of the CWA).
This definition includes any devices and systems used in the storage,
treatment, recycling, and reclamation of municipal sewage or industrial wastes
of a liquid nature. It also includes sewers, pipes, and other conveyances only
if they convey wastewater to a POTW treatment plant. The term also means the
municipality as defined in § 502(4) of the CWA, that has jurisdiction over
the indirect discharges to and the discharges from such a treatment works.
"Qualified personnel" means a person knowledgeable
in the principles and practice practices of erosion and sediment and
stormwater management controls who possesses the skills to assess
conditions at the construction site for the operator that could impact
stormwater quality and quantity and to assess the effectiveness of any
sediment and erosion control measures or stormwater management facilities
selected to control the quality and quantity of stormwater discharges
from the construction activity. This may include a licensed professional
engineer, responsible land disturber, or other For VSMP authorities this
requires the use of a person who holds a certificate of competency from the
board in the area of project inspection for ESC and project inspection for
SWM or combined administrator for ESC and combined administrator for SWM
as defined in 4VAC50-50-10 or a combination of ESC and SWM qualifications from
these two areas.
"Qualifying local stormwater management program"
or "qualifying local program" means a local stormwater management
program, administered by a locality, that has been authorized by the board. To
authorize a qualifying local program, the board must find that the ordinances
adopted by the locality are consistent with the VSMP General Permit for Discharges
of Stormwater from Construction Activities (Part XIV (4VAC50-60-1100 et seq.)
of this chapter.
"Recommencing discharger" means a source that
recommences discharge after terminating operations.
"Regional administrator" means the Regional
Administrator of Region III of the Environmental Protection Agency or the
authorized representative of the regional administrator.
"Revoked state permit" means, for the
purposes of this chapter, an existing state permit that is terminated by
the board before its expiration.
"Runoff coefficient" means the fraction of total
rainfall that will appear at a conveyance as runoff.
"Runoff" or "stormwater runoff" means
that portion of precipitation that is discharged across the land surface or
through conveyances to one or more waterways.
"Runoff characteristics" include maximum velocity,
peak flow rate, volume, and flow duration.
"Runoff volume" means the volume of water that runs
off the site from a prescribed design storm.
"Schedule of compliance" means a schedule of
remedial measures included in a state permit, including an enforceable
sequence of interim requirements (for example, actions, operations, or
milestone events) leading to compliance with the Act, the CWA and regulations.
"Secretary" means the Secretary of the Army, acting
through the Chief of Engineers.
"Severe property damage" means substantial physical
damage to property, damage to the treatment facilities that causes them to
become inoperable, or substantial and permanent loss of natural resources that
can reasonably be expected to occur in the absence of a bypass. Severe property
damage does not mean economic loss caused by delays in production.
"Significant materials" means, but is not limited
to: raw materials; fuels; materials such as solvents, detergents, and plastic
pellets; finished materials such as metallic products; raw materials used in
food processing or production; hazardous substances designated under
§ 101(14) of CERCLA (42 USC § 9601(14)); any chemical the facility is
required to report pursuant to § 313 of Title III of SARA (42 USC §
11023); fertilizers; pesticides; and waste products such as ashes, slag and
sludge that have the potential to be released with stormwater discharges.
"Single jurisdiction" means, for the purposes of
this chapter, a single county or city. The term county includes incorporated
towns which are part of the county.
"Site" means the land or water area where any
facility or land-disturbing activity is physically located or conducted,
including adjacent land used or preserved in connection with the facility or
land-disturbing activity. Areas channelward of mean low water in tidal Virginia
shall not be considered part of a site.
"Site hydrology" means the movement of water on, across,
through and off the site as determined by parameters including, but not limited
to, soil types, soil permeability, vegetative cover, seasonal water tables,
slopes, land cover, and impervious cover.
"Small construction activity" means:
1. Construction activities including clearing, grading, and
excavating that results in land disturbance of equal to or greater than one
acre, and less than five acres. Small construction activity also includes the
disturbance of less than one acre of total land area that is part of a larger
common plan of development or sale if the larger common plan will ultimately
disturb equal to or greater than one and less than five acres. Small
construction activity does not include routine maintenance that is performed to
maintain the original line and grade, hydraulic capacity, or original purpose
of the facility. The board may waive the otherwise applicable requirements in a
general permit for a stormwater discharge from construction activities that
disturb less than five acres where stormwater controls are not needed based on
a "total maximum daily load" (TMDL) approved or established by EPA
that addresses the pollutant(s) of concern or, for nonimpaired waters that do
not require TMDLs, an equivalent analysis that determines allocations for small
construction sites for the pollutant(s) of concern or that determines that such
allocations are not needed to protect water quality based on consideration of
existing in-stream concentrations, expected growth in pollutant contributions from
all sources, and a margin of safety. For the purpose of this subdivision, the
pollutant(s) of concern include sediment or a parameter that addresses sediment
(such as total suspended solids, turbidity or siltation) and any other
pollutant that has been identified as a cause of impairment of any water body
that will receive a discharge from the construction activity. The operator must
certify to the board that the construction activity will take place, and
stormwater discharges will occur, within the drainage area addressed by the
TMDL or equivalent analysis.
2. Any other construction activity designated by the either
the board or the EPA regional administrator, based on the potential for
contribution to a violation of a water quality standard or for significant
contribution of pollutants to surface waters.
"Small municipal separate storm sewer system" or
"small MS4" means all separate storm sewers that are (i) owned or
operated by the United States, a state, city, town, borough, county, parish,
district, association, or other public body (created by or pursuant to state
law) having jurisdiction over disposal of sewage, industrial wastes,
stormwater, or other wastes, including special districts under state law such
as a sewer district, flood control district or drainage district, or similar
entity, or an Indian tribe or an authorized Indian tribal organization, or a
designated and approved management agency under § 208 of the CWA that
discharges to surface waters and (ii) not defined as "large" or
"medium" municipal separate storm sewer systems or designated under
4VAC50-60-380 A 1. This term includes systems similar to separate storm sewer
systems in municipalities, such as systems at military bases, large hospital or
prison complexes, and highway and other thoroughfares. The term does not
include separate storm sewers in very discrete areas, such as individual
buildings.
"Source" means any building, structure, facility,
or installation from which there is or may be a discharge of pollutants.
"State" means the Commonwealth of Virginia.
"State application" or "application"
means the standard form or forms, including any additions, revisions, or
modifications to the forms, approved by the administrator and the board for
applying for a state permit.
"State/EPA agreement" means an agreement between
the EPA regional administrator and the state that coordinates EPA and state
activities, responsibilities and programs including those under the CWA and the
Act.
"State permit" means an approval to conduct a
land-disturbing activity issued by the board in the form of a state stormwater
individual permit or coverage issued under a state general permit or an
approval issued by the board for stormwater discharges from an MS4. Under these
state permits, the Commonwealth imposes and enforces requirements pursuant to
the federal Clean Water Act and regulations, the Act and this chapter. State
permit does not include any state permit that has not yet been the subject of
final board action, such as a draft state permit or a proposed state permit.
"State project" means any land development project
that is undertaken by any state agency, board, commission, authority or any
branch of state government, including state-supported institutions of higher
learning.
"State Water Control Law" means Chapter 3.1 (§
62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia.
"State waters" means all water, on the surface and
under the ground, wholly or partially within or bordering the Commonwealth or
within its jurisdiction, including wetlands.
"Stormwater" means precipitation that is discharged
across the land surface or through conveyances to one or more waterways and
that may include stormwater runoff, snow melt runoff, and surface runoff and
drainage.
"Stormwater conveyance system" means a combination
of drainage components that are used to convey stormwater discharge, either
within or downstream of the land-disturbing activity. This includes:
1. "Manmade stormwater conveyance system" means a
pipe, ditch, vegetated swale, or other stormwater conveyance system constructed
by man except for restored stormwater conveyance systems;
2. "Natural stormwater conveyance system" means the
main channel of a natural stream and the flood-prone area adjacent to the main
channel; or
3. "Restored stormwater conveyance system" means a
stormwater conveyance system that has been designed and constructed using
natural channel design concepts. Restored stormwater conveyance systems include
the main channel and the flood-prone area adjacent to the main channel.
"Stormwater discharge associated with construction
activity" means a discharge of stormwater runoff from areas where
land-disturbing activities (e.g., clearing, grading, or excavation);
construction materials or equipment storage or maintenance (e.g., fill piles,
borrow area, concrete truck washout, fueling); or other industrial stormwater
directly related to the construction process (e.g., concrete or asphalt batch
plants) are located.
"Stormwater discharge associated with large construction
activity" means the discharge of stormwater from large construction
activities.
"Stormwater discharge associated with small construction
activity" means the discharge of stormwater from small construction
activities.
"Stormwater management facility" means a control
measure that controls stormwater runoff and changes the characteristics of that
runoff including, but not limited to, the quantity and quality, the period of
release or the velocity of flow.
"Stormwater management plan" means a document(s)
containing material for describing methods for complying with the requirements
of the local program VSMP or this chapter.
"Stormwater management program" means a program
established by a locality that is consistent with the requirements of the Act,
this chapter and associated guidance documents.
"Stormwater Pollution Prevention Plan" or
"SWPPP" means a document that is prepared in accordance with good
engineering practices and that identifies potential sources of pollutants that
may reasonably be expected to affect the quality of stormwater discharges from
the construction site. In addition the document shall identify and require the
implementation of control measures, and shall include, but not be limited to
the inclusion of, or the incorporation by reference of, an approved erosion and
sediment control plan, an approved stormwater management plan, and a pollution
prevention plan.
"Stormwater program administrative authority"
means a local stormwater management program or the department, as the
permit-issuing authority, in the absence of a local stormwater management
program, which administers the Virginia Stormwater Management Program.
"Subdivision" means the same as defined in
§ 15.2-2201 of the Code of Virginia.
"Surface waters" means:
1. All waters that are currently used, were used in the past,
or may be susceptible to use in interstate or foreign commerce, including all
waters that are subject to the ebb and flow of the tide;
2. All interstate waters, including interstate wetlands;
3. All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands, sloughs,
prairie potholes, wet meadows, playa lakes, or natural ponds the use,
degradation, or destruction of which would affect or could affect interstate or
foreign commerce including any such waters:
a. That are or could be used by interstate or foreign
travelers for recreational or other purposes;
b. From which fish or shellfish are or could be taken and sold
in interstate or foreign commerce; or
c. That are used or could be used for industrial purposes by
industries in interstate commerce.
4. All impoundments of waters otherwise defined as surface
waters under this definition;
5. Tributaries of waters identified in subdivisions 1 through
4 of this definition;
6. The territorial sea; and
7. Wetlands adjacent to waters (other than waters that are
themselves wetlands) identified in subdivisions 1 through 6 of this definition.
Waste treatment systems, including treatment ponds or lagoons
designed to meet the requirements of the CWA and the law, are not surface
waters. Surface waters do not include prior converted cropland. Notwithstanding
the determination of an area's status as prior converted cropland by any other
agency, for the purposes of the CWA, the final authority regarding the CWA
jurisdiction remains with the EPA.
"Total dissolved solids" means the total dissolved
(filterable) solids as determined by use of the method specified in 40 CFR
Part 136 (2000).
"Total maximum daily load" or "TMDL"
means the sum of the individual wasteload allocations for point sources, load
allocations (LAs) for nonpoint sources, natural background loading and a margin
of safety. TMDLs can be expressed in terms of either mass per time, toxicity,
or other appropriate measure. The TMDL process provides for point versus
nonpoint source trade-offs.
"Toxic pollutant" means any pollutant listed as
toxic under § 307(a)(1) of the CWA or, in the case of sludge use or
disposal practices, any pollutant identified in regulations implementing §
405(d) of the CWA.
"Upset" means an exceptional incident in which
there is unintentional and temporary noncompliance with technology based state
permit effluent limitations because of factors beyond the reasonable control of
the operator. An upset does not include noncompliance to the extent caused by
operational error, improperly designed treatment facilities, inadequate
treatment facilities, lack of preventive maintenance, or careless or improper
operation.
"Variance" means any mechanism or provision under
§ 301 or § 316 of the CWA or under 40 CFR Part 125 (2000), or in the
applicable federal effluent limitations guidelines that allows modification to
or waiver of the generally applicable effluent limitation requirements or time
deadlines of the CWA. This includes provisions that allow the establishment of
alternative limitations based on fundamentally different factors or on
§ 301(c), § 301(g), § 301(h), § 301(i), or § 316(a) of
the CWA.
"Virginia Erosion and Sediment Control Program"
or "VESCP" means a program approved by the board that has been
established by a VESCP authority for the effective control of soil erosion,
sediment deposition, and nonagricultural runoff associated with a
land-disturbing activity to prevent the unreasonable degradation of properties,
stream channels, waters, and other natural resources and shall include such
items where applicable as local ordinances, rules, permit requirements, annual
standards and specifications, policies and guidelines, technical materials, and
requirements for plan review, inspection, enforcement where authorized in the
Erosion and Sediment Control Act and its attendant regulations, and evaluation
consistent with the requirements of the Erosion and Sediment Control Act and
its attendant regulations.
"Virginia Erosion and Sediment Control Program
authority" or "VESCP authority" means an authority approved by
the board to operate a Virginia Erosion and Sediment Control Program. An
authority may include a state entity, including the department; a federal entity;
a district, county, city, or town; or for linear projects subject to annual
standards and specifications, electric, natural gas and telephone utility
companies, interstate and intrastate natural gas pipeline companies, railroad
companies, or authorities created pursuant to § 15.2-5102
of the Code of Virginia.
"Virginia Pollutant Discharge Elimination System (VPDES)
permit" or "VPDES permit" means a document issued by the State
Water Control Board pursuant to the State Water Control Law authorizing, under
prescribed conditions, the potential or actual discharge of pollutants from a
point source to surface waters and the use or disposal of sewage sludge.
"Virginia Stormwater Management Act" means Article
1.1 (§ 10.1-603.1 et seq.) of Chapter 6 of Title 10.1 of the Code of
Virginia.
"Virginia Stormwater BMP Clearinghouse website"
means a website that contains detailed design standards and specifications for
control measures that may be used in Virginia to comply with the requirements
of the Virginia Stormwater Management Act and associated regulations and that
is jointly created by the department and the Virginia Water Resources Research
Center subject to advice to the director from a permanent stakeholder advisory
committee.
"Virginia Stormwater Management Handbook" means a
collection of pertinent information that provides general guidance for
compliance with the Act and associated regulations and is developed by the
department with advice from a stakeholder advisory committee.
"Virginia Stormwater Management Program" or
"VSMP" means the Virginia program for issuing, modifying, revoking
and reissuing, terminating, monitoring and enforcing permits, and imposing and
enforcing requirements pursuant to the CWA, the Act, this chapter, and
associated guidance documents a program approved by the board after
September 13, 2011, that has been established by a VSMP authority to manage the
quality and quantity of runoff resulting from land-disturbing activities and
shall include such items as local ordinances, rules, permit requirements,
annual standards and specifications, policies and guidelines, technical
materials, and requirements for plan review, inspection, enforcement, where
authorized in the Act and associated regulations, and evaluation consistent
with the requirements of the SWM Act and associated regulations.
"Virginia Stormwater Management Program
authority" or "VSMP authority" means an authority approved by
the board after September 13, 2011, to operate a Virginia Stormwater Management
Program or, until such approval is given, the department. An authority may
include a locality; state entity, including the department; federal entity; or,
for linear projects subject to annual standards and specifications in
accordance with subsection B of § 10.1-603.5
of the Code of Virginia, electric, natural gas, and telephone utility
companies, interstate and intrastate natural gas pipeline companies, railroad
companies, or authorities created pursuant to § 15.2-5102
of the Code of Virginia. Prior to approval, the board must find that the
ordinances adopted by the locality's VSMP authority are consistent with the Act
and this chapter including the General Permit for Discharges of Stormwater from
Construction Activities (Part XIV (4VAC50-60-1100 et seq.) of this chapter).
"Virginia Stormwater Management Program permit"
or "VSMP permit" means a document issued by the permit-issuing
authority pursuant to the Virginia Stormwater Management Act and this chapter
authorizing, under prescribed conditions, the potential or actual discharge of
pollutants from a point source to surface waters. Under the approved state
program, a VSMP permit is equivalent to a NPDES permit.
"VSMP application" or "application"
means the standard form or forms, including any additions, revisions or
modifications to the forms, approved by the administrator and the board for
applying for a VSMP permit.
"Wasteload allocation" or "wasteload" or
"WLA" means the portion of a receiving surface water's loading or
assimilative capacity allocated to one of its existing or future point sources
of pollution. WLAs are a type of water quality-based effluent limitation.
"Water quality standards" or "WQS" means
provisions of state or federal law that consist of a designated use or uses for
the waters of the Commonwealth and water quality criteria for such waters based
on such uses. Water quality standards are to protect the public health or
welfare, enhance the quality of water, and serve the purposes of the State
Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), the Act
(§ 10.1-603.1 et seq. of the Code of Virginia), and the CWA (33 USC § 1251
et seq.).
"Watershed" means a defined land area drained by a
river or stream, karst system, or system of connecting rivers or streams such
that all surface water within the area flows through a single outlet. In karst
areas, the karst feature to which the water drains may be considered the single
outlet for the watershed.
"Wetlands" means those areas that are inundated or
saturated by surface or groundwater at a frequency and duration sufficient to
support, and that under normal circumstances do support, a prevalence of
vegetation typically adapted for life in saturated soil conditions. Wetlands
generally include swamps, marshes, bogs, and similar areas.
"Whole effluent toxicity" means the aggregate toxic
effect of an effluent measured directly by a toxicity test.
4VAC50-60-20. Purposes.
The purposes of this chapter are to provide a framework for
the administration, implementation and enforcement of the Virginia Stormwater
Management Act (Act) and to delineate the procedures and requirements to be
followed in connection with VSMP state permits issued by the
board or its designee pursuant to the Clean Water Act (CWA) and the
Virginia Stormwater Management Act and permits issued by a VSMP authority,
while at the same time providing flexibility for innovative solutions to
stormwater management issues. The chapter also establishes the board's
procedures for the authorization of a qualifying local program VSMP,
the board's procedures for approving the administration of a local
stormwater management program VSMP by an authorized qualifying
local program a VSMP authority, board and department oversight
authorities for an authorized qualifying local program a VSMP, the
board's procedures for utilization by the department in administering the
Virginia Stormwater Management Program in localities where no qualifying local
program is authorized, and the required technical criteria for stormwater
management for land-disturbing activities.
4VAC50-60-30. Applicability.
This chapter is applicable to:
1. Every locality VSMP authority that
administers a local stormwater management program VSMP;
2. The department in its oversight of locally administered
programs VSMPs or in its administration of the Virginia Stormwater
Management Program;
3. Every MS4 program;
4. Every state agency project regulated and every federal
entity project covered under the Act and this chapter; and
5. Every land-disturbing activity regulated under § 10.1-603.8
of the Code of Virginia unless otherwise exempted in § 10.1-603.8 B.
Part II
Administrative and Technical Criteria for Land-Disturbing Activities
4VAC50-60-40. Authority.
Pursuant to the Virginia Stormwater Management Act (§ 10.1-603.2
et seq. of the Code of Virginia), the board is required to take actions
ensuring the general health, safety, and welfare of the citizens of the
Commonwealth as well as protecting the quality and quantity of state waters
from the potential harm of unmanaged stormwater. In addition to other authority
granted to the board under the Stormwater Management Act, the board is
authorized pursuant to §§ 10.1-603.2:1 and 10.1-603.4 to adopt regulations
that specify standards and procedures for local stormwater management
programs and the Virginia Stormwater Management Program VSMPs, to
establish statewide standards for stormwater management for land-disturbing
activities, and to protect properties, the quality and quantity of state
waters, the physical integrity of stream channels, and other natural resources.
4VAC50-60-45. Implementation date.
The technical criteria in Part II A and Part II B shall be
implemented by a stormwater program administrative VSMP authority
when a VSMP General Permit for Discharges of Stormwater from
Construction Activities has been issued that incorporates such criteria. Until
that time, the required technical criteria shall be found in Part II C. VSMPs
adopted in accordance with the Act and this chapter shall become effective July
1, 2014, unless otherwise specified by the board.
4VAC50-60-47. Applicability of other laws and regulations.
Nothing in this chapter shall be construed as limiting the
applicability of other laws and regulations, including, but not limited to, the
CWA, Virginia Stormwater Management Act, Virginia Erosion and Sediment Control
Law, and the Chesapeake Bay Preservation Act, except as provided in § 10.1-603.3
I K of the Code of Virginia, and all applicable regulations
adopted in accordance with those laws, or the rights of other federal agencies,
state agencies, or local governments to impose more stringent technical
criteria or other requirements as allowed by law.
4VAC50-60-47.1. Time limits on applicability of approved design
criteria.
Beginning with the VSMP General Permit for Discharges
of Stormwater from Construction Activities issued July 1, 2009, all
land-disturbing activities that receive general permit coverage shall be
conducted in accordance with the Part II B or Part II C technical criteria in
place at the time of initial state permit coverage and shall remain
subject to those criteria for an additional two permit cycles, except as
provided for in subsection D of 4VAC50-60-48. After the two additional state
permit cycles have passed, or should state permit coverage not be
maintained, portions of the project not under construction shall become subject
to any new technical criteria adopted since original state permit
coverage was issued. For land-disturbing projects issued coverage under the
July 1, 2009 state permit and for which coverage was maintained, such
projects shall remain subject to the technical criteria of Part II C for an
additional two state permits.
4VAC50-60-48. Grandfathering.
A. Until June 30, 2019, any land-disturbing activity for which
a currently valid proffered or conditional zoning plan, preliminary or final
subdivision plat, preliminary or final site plan or zoning with a plan of
development, or any document determined by the locality as being equivalent
thereto, was approved by a locality prior to July 1, 2012, and for which no
coverage under the VSMP General Permit for Discharges of Stormwater from
Construction Activities has been issued prior to July 1, 2014, shall be
considered grandfathered by the stormwater program administrative VSMP
authority and shall not be subject to the technical criteria of Part II B, but
shall be subject to the technical criteria of Part II C for those areas that
were included in the approval, provided that the stormwater program
administrative VSMP authority finds that such proffered or
conditional zoning plan, preliminary or final subdivision plat, preliminary or
final site plan or zoning with a plan of development, or any document
determined by the locality as being equivalent thereto, (i) provides for a
layout and (ii) the resulting land-disturbing activity will be compliant with
the requirements of Part II C. In the event that the locality-approved document
is subsequently modified or amended in a manner such that there is no increase
over the previously approved plat or plan in the amount of phosphorus leaving
each point of discharge of the land-disturbing activity through stormwater
runoff, and such that there is no increase over the previously approved plat or
plan in the volume or rate of runoff, the grandfathering shall continue as
before.
B. Until June 30, 2019, for locality, state, and federal
projects for which there has been an obligation of locality, state, or federal
funding, in whole or in part, prior to July 1, 2012, or for which the department
has approved a stormwater management plan prior to July 1, 2012, such projects
shall be considered grandfathered by the stormwater program administrative
VSMP authority and shall not be subject to the technical criteria of
Part II B, but shall be subject to the technical criteria of Part II C for
those areas that were included in the approval.
C. For land-disturbing activities grandfathered under
subsections A and B of this section, construction must be completed by June 30,
2019, or portions of the project not under construction shall become subject to
the technical criteria of Part II B.
D. In cases where governmental bonding or public debt
financing has been issued for a project prior to July 1, 2012, such project
shall be subject to the technical criteria of Part II C.
E. Nothing in this section shall preclude an operator from
constructing to a more stringent standard at his discretion.
4VAC50-60-51. Chesapeake Bay Preservation Act
land-disturbing activity.
In order to protect the quality of state waters and to
control the discharge of stormwater pollutants from land-disturbing activities,
runoff associated with Chesapeake Bay Preservation Act land-disturbing
activities shall be controlled. Such land-disturbing activities shall not
require completion of a registration statement or require coverage under the VSMP
General Permit for Discharges of Stormwater from Construction Activities but
shall be subject to the following technical criteria and program and
administrative requirements:
1. An erosion and sediment control plan consistent with the
requirements of the Virginia Erosion and Sediment Control Law and regulations
must be designed and implemented during land disturbing activities. Prior to
land disturbance, this plan must be approved by either the local erosion and
sediment control program VESCP authority or the department in
accordance with the Virginia Erosion and Sediment Control Law and attendant
regulations.
2. A stormwater plan consistent with the requirements of the
Virginia Stormwater Management Act and regulations must be designed and
implemented during the land-disturbing activity. The stormwater management plan
shall be developed and submitted in accordance with 4VAC50-60-55. Prior to land
disturbance, this plan must be approved by the stormwater program
administrative VSMP authority.
3. Exceptions may be requested in accordance with
4VAC50-60-57.
4. Long-term maintenance of stormwater management facilities
shall be provided for and conducted in accordance with 4VAC50-60-58.
5. Water quality design criteria in 4VAC50-60-63 shall be
applied to the site.
6. Water quality compliance shall be achieved in accordance
with 4VAC50-60-65.
7. Channel protection and flood protection shall be achieved
in accordance with 4VAC50-60-66.
8. Offsite compliance options in accordance with 4VAC50-60-69
shall be available to Chesapeake Bay Preservation Act land-disturbing
activities.
9. Such land-disturbing activities shall be subject to the
design storm and hydrologic methods set out in 4VAC50-60-72, linear development
controls in 4VAC50-60-76, and criteria associated with stormwater impoundment
structures or facilities in 4VAC50-60-85.
4VAC50-60-54. Stormwater pollution prevention plan
requirements.
A. A stormwater pollution prevention plan shall include, but
not be limited to, an approved erosion and sediment control plan, an approved
stormwater management plan, a pollution prevention plan for regulated
land-disturbing activities, and a description of any additional control
measures necessary to address a TMDL pursuant to subsection E of this section.
B. An erosion and sediment control plan consistent with the
requirements of the Virginia Erosion and Sediment Control Law and regulations
must be designed and implemented during construction activities. Prior to land
disturbance, this plan must be approved by either the local erosion and
sediment control program VESCP authority or the department in
accordance with the Virginia Erosion and Sediment Control Law and attendant
regulations.
C. A stormwater management plan consistent with the
requirements of the Virginia Stormwater Management Act and regulations must be
designed and implemented during construction activities. Prior to land
disturbance, this plan must be approved by the stormwater program
administrative VSMP authority.
D. A pollution prevention plan that identifies potential
sources of pollutants that may reasonably be expected to affect the quality of
stormwater discharges from the construction site and describe control measures
that will be used to minimize pollutants in stormwater discharges from the
construction site must be developed before land disturbance commences.
E. In addition to the requirements of subsections A through D
of this section, if a specific WLA for a pollutant has been established in a
TMDL and is assigned to stormwater discharges from a construction activity,
additional control measures must be identified and implemented by the operator
so that discharges are consistent with the assumptions and requirements of the
WLA in a State Water Control Board-approved TMDL.
F. The stormwater pollution prevention plan must address the
following requirements, to the extent otherwise required by state law or
regulations and any applicable requirements of a VSMP state
permit:
1. Control stormwater volume and velocity within the site to
minimize soil erosion;
2. Control stormwater discharges, including both peak flow
rates and total stormwater volume, to minimize erosion at outlets and to
minimize downstream channel and stream bank erosion;
3. Minimize the amount of soil exposed during construction
activity;
4. Minimize the disturbance of steep slopes;
5. Minimize sediment discharges from the site. The design,
installation and maintenance of erosion and sediment controls must address
factors such as the amount, frequency, intensity and duration of precipitation,
the nature of resulting stormwater runoff, and soil characteristics, including
the range of soil particle sizes expected to be present on the site;
6. Provide and maintain natural buffers around surface waters,
direct stormwater to vegetated areas to increase sediment removal and maximize
stormwater infiltration, unless infeasible;
7. Minimize soil compaction and, unless infeasible, preserve
topsoil; and
8. Stabilization of disturbed areas must, at a minimum, be
initiated immediately whenever any clearing, grading, excavating, or other
earth disturbing activities have permanently ceased on any portion of the site,
or temporarily ceased on any portion of the site and will not resume for a period
exceeding 14 calendar days. Stabilization must be completed within a period of
time determined by the stormwater program administrative VSMP
authority. In arid, semiarid, and drought-stricken areas where initiating
vegetative stabilization measures immediately is infeasible, alternative
stabilization measures must be employed as specified by the stormwater
program administrative VSMP authority; and
9. Utilize outlet structures that withdraw water from the
surface, unless infeasible, when discharging from basins and impoundments.
G. The SWPPP shall be amended whenever there is a change in
design, construction, operation, or maintenance that has a significant effect
on the discharge of pollutants to state waters and that has not been previously
addressed in the SWPPP. The SWPPP must be maintained at a central location
onsite. If an onsite location is unavailable, notice of the SWPPP's location
must be posted near the main entrance at the construction site.
4VAC50-60-55. Stormwater management plans.
A. A stormwater management plan shall be developed and
submitted to the stormwater program administrative VSMP
authority. The stormwater management plan shall be implemented as approved or
modified by the stormwater program administrative VSMP authority
and shall be developed in accordance with the following:
1. A stormwater management plan for a land-disturbing activity
shall apply the stormwater management technical criteria set forth in this part
to the entire land-disturbing activity.
2. A stormwater management plan shall consider all sources of
surface runoff and all sources of subsurface and groundwater flows converted to
surface runoff.
B. A complete stormwater management plan shall include the
following elements:
1. Information on the type of and location of stormwater
discharges, information on the features to which stormwater is being discharged
including surface waters or karst features if present, and predevelopment and
postdevelopment drainage areas;
2. Contact information including the name, address, and
telephone number of the owner and the tax reference number and parcel number of
the property or properties affected;
3. A narrative that includes a description of current site
conditions and final site conditions or if allowed by the stormwater program
administrative VSMP authority, the information provided and
documented during the review process that addresses the current and final site
conditions;
4. A general description of the proposed stormwater management
facilities and the mechanism through which the facilities will be operated and
maintained after construction is complete;
5. Information on the proposed stormwater management
facilities, including (i) the type of facilities; (ii) location, including
geographic coordinates; (iii) acres treated; and (iv) the surface waters or
karst features into which the facility will discharge;
6. Hydrologic and hydraulic computations, including runoff
characteristics;
7. Documentation and calculations verifying compliance with
the water quality and quantity requirements of these regulations;
8. A map or maps of the site that depicts the topography of
the site and includes:
a. All contributing drainage areas;
b. Existing streams, ponds, culverts, ditches, wetlands, other
water bodies, and floodplains;
c. Soil types, geologic formations if karst features are
present in the area, forest cover, and other vegetative areas;
d. Current land use including existing structures, roads, and
locations of known utilities and easements;
e. Sufficient information on adjoining parcels to assess the
impacts of stormwater from the site on these parcels;
f. The limits of clearing and grading, and the proposed
drainage patterns on the site;
g. Proposed buildings, roads, parking areas, utilities, and
stormwater management facilities; and
h. Proposed land use with tabulation of the percentage of
surface area to be adapted to various uses, including but not limited to
planned locations of utilities, roads, and easements;
9. If an operator intends to meet the requirements established
in 4VAC50-60-63 or 4VAC50-60-66 through the use of off-site compliance options,
where applicable, then a letter of availability from the off-site provider must
be included; and
10. If payment of a fee is required with the stormwater
management plan submission by the stormwater program administrative VSMP
authority, the fee and the required fee form in accordance with Part XIII must
have been submitted.
C. Elements of the stormwater management plans that include
activities regulated under Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of
the Code of Virginia shall be appropriately sealed and signed by a professional
registered in the Commonwealth of Virginia pursuant to Article 1 (§ 54.1-400
et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia.
D. A construction record drawing for permanent stormwater
management facilities shall be submitted to the stormwater program
administrative VSMP authority in accordance with 4VAC50-60-108 and
4VAC50-60-112. The construction record drawing shall be appropriately sealed
and signed by a professional registered in the Commonwealth of Virginia,
certifying that the stormwater management facilities have been constructed in
accordance with the approved plan.
4VAC50-60-57. Requesting an exception.
A request for an exception for Part II B or Part II C of this
chapter, including the reasons for making the request, may be submitted in
writing to the stormwater program administrative VSMP authority.
Economic hardship alone is not a sufficient reason to request an exception from
the requirements of this chapter. The request for an exception will be reviewed
pursuant to 4VAC50-60-122. An exception to the requirement that the land
disturbing land-disturbing activity obtain a VSMP state
permit will not be granted by the stormwater program administrative VSMP
authority.
4VAC50-60-58. Responsibility for long-term maintenance of
permanent stormwater management facilities.
A recorded instrument shall be submitted to the stormwater
program administrative VSMP authority in accordance with 4VAC50-60-112.
4VAC50-60-59. Applying for VSMP state permit
coverage.
The operator must submit a complete and accurate registration
statement on the official department form to the stormwater program
administrative VSMP authority in order to apply for VSMP state
permit coverage. The registration statement must be signed by the operator in
accordance with 4VAC50-60-370.
Part II B
Technical Criteria for Regulated Land-Disturbing Activities
4VAC50-60-62. Applicability.
In accordance with the board's authority and except as
provided in 4VAC50-60-48, this part establishes the minimum technical criteria
that shall be employed by a state agency in accordance with an implementation
schedule set by the board, or by a stormwater program administrative VSMP
authority that has been approved by the board, to protect the quality and
quantity of state waters from the potential harm of unmanaged stormwater runoff
resulting from land-disturbing activities.
4VAC50-60-63. Water quality design criteria requirements.
A. In order to protect the quality of state waters and to
control the discharge of stormwater pollutants from regulated activities, the
following minimum design criteria and statewide standards for stormwater
management shall be applied to the site.
1. New development. The total phosphorus load of new
development projects shall not exceed 0.41 pounds per acre per year, as
calculated pursuant to 4VAC50-60-65.
2. Development on prior developed lands.
a. For land-disturbing activities disturbing greater than or
equal to one acre that result in no net increase in impervious cover from the
predevelopment condition, the total phosphorus load shall be reduced at least
20% below the predevelopment total phosphorus load.
b. For regulated land-disturbing activities disturbing less
than one acre that result in no net increase in impervious cover from the
predevelopment condition, the total phosphorus load shall be reduced at least
10% below the predevelopment total phosphorus load.
c. For land-disturbing activities that result in a net
increase in impervious cover over the predevelopment condition, the design
criteria for new development shall be applied to the increased impervious area.
Depending on the area of disturbance, the criteria of subdivisions a or b
above, shall be applied to the remainder of the site.
d. In lieu of subdivision c, the total phosphorus load of a
linear development project occurring on prior developed lands shall be reduced
20% below the predevelopment total phosphorus load.
e. The total phosphorus load shall not be required to be
reduced to below the applicable standard for new development unless a more
stringent standard has been established by a local stormwater management
program locality.
B. Compliance with subsection A of this section shall be
determined in accordance with 4VAC50-60-65.
C. Upon completion of the 2017 Chesapeake Bay Phase III
Watershed Implementation Plan, the department shall review the water quality
design criteria standards.
D. Nothing in this section shall prohibit a local stormwater
management program locality's VSMP authority from establishing more
stringent water quality design criteria requirements.
4VAC50-60-65. Water quality compliance.
A. Compliance with the water quality design criteria set out
in subdivisions A 1 and A 2 of 4VAC50-60-63 shall be determined by utilizing
the Virginia Runoff Reduction Method or another equivalent methodology that is
approved by the board.
B. The BMPs listed in this subsection are approved for
use as necessary to effectively reduce the phosphorus load and runoff volume in
accordance with the Virginia Runoff Reduction Method. Other approved BMPs found
on the Virginia Stormwater BMP Clearinghouse Website at http://www.vwrrc.vt.edu/swc may also be
utilized. Design specifications and the pollutant removal efficiencies for all
approved BMPs are found on the Virginia Stormwater BMP Clearinghouse Website at
http://www.vwrrc.vt.edu/swc.
1. Vegetated Roof (Version 2.3, March 1, 2011);
2. Rooftop Disconnection (Version 1.9, March 1, 2011);
3. Rainwater Harvesting (Version 1.9.5, March 1, 2011);
4. Soil Amendments (Version 1.8, March 1, 2011);
5. Permeable Pavement (Version 1.8, March 1, 2011);
6. Grass Channel (Version 1.9, March 1, 2011);
7. Bioretention (Version 1.9, March 1, 2011);
8. Infiltration (Version 1.9, March 1, 2011);
9. Dry Swale (Version 1.9, March 1, 2011);
10. Wet Swale (Version 1.9, March 1, 2011);
11. Sheet Flow to Filter/Open Space (Version 1.9, March 1,
2011);
12. Extended Detention Pond (Version 1.9, March 1, 2011);
13. Filtering Practice (Version 1.8, March 1, 2011);
14. Constructed Wetland (Version 1.9, March 1, 2011); and
15. Wet Pond (Version 1.9, March 1, 2011).
C. BMPs differing from those listed in subsection B of this
section shall be reviewed and approved by the director in accordance with
procedures established by the BMP Clearinghouse Committee and approved by the
board.
D. A local stormwater management program VSMP
authority may establish limitations on the use of specific BMPs following
the submission of the proposed limitation and written justification to the
department.
E. The stormwater program administrative VSMP
authority shall have the discretion to allow for application of the design
criteria to each drainage area of the site. However, where a site drains to
more than one HUC, the pollutant load reduction requirements shall be applied
independently within each HUC unless reductions are achieved in accordance with
a comprehensive watershed stormwater management plan in accordance with
4VAC50-60-92.
F. Offsite alternatives where allowed in accordance with
4VAC50-60-69 may be utilized to meet the design criteria of subsection A of
4VAC50-60-63.
4VAC50-60-66. Water quantity.
A. Channel protection and flood protection shall be addressed
in accordance with the minimum standards set out in this section, which are
established pursuant to the requirements of subdivision 7 of § 10.1-603.4 of
the Code of Virginia. Nothing in this section shall prohibit a local
stormwater management program locality's VSMP authority from
establishing a more stringent standard especially where more stringent
requirements are necessary to address total maximum daily load requirements or
to protect exceptional state waters. Compliance with the minimum standards
set out in this section shall be deemed to satisfy the requirements of
subdivision 19 of 4VAC50-30-40 (Minimum Standard 19 of the Virginia Erosion and
Sediment Control Regulations).
B. Channel protection. Concentrated stormwater flow shall be
released into a stormwater conveyance system and shall meet the criteria in
subdivision 1, 2, or 3 of this subsection, where applicable, from the point of
discharge to a point to the limits of analysis in subdivision 4 of this
subsection.
1. Manmade stormwater conveyance systems. When stormwater from
a development is discharged to a manmade stormwater conveyance system,
following the land-disturbing activity, either:
a. The manmade stormwater conveyance system shall convey the
postdevelopment peak flow rate from the two-year 24-hour storm event without
causing erosion of the system. Detention of stormwater or downstream
improvements may be incorporated into the approved land-disturbing activity to
meet this criterion, at the discretion of the stormwater program administrative
VSMP authority; or
b. The peak discharge requirements for concentrated stormwater
flow to natural stormwater conveyance systems in subdivision 3 of this
subsection shall be met.
2. Restored stormwater conveyance systems. When stormwater from
a development is discharged to a restored stormwater conveyance system that has
been restored using natural design concepts, following the land-disturbing
activity, either:
a. The development shall be consistent, in combination with
other stormwater runoff, with the design parameters of the restored stormwater
conveyance system that is functioning in accordance with the design objectives;
or
b. The peak discharge requirements for concentrated stormwater
flow to natural stormwater conveyance systems in subdivision 3 of this
subsection shall be met.
3. Natural stormwater conveyance systems. When stormwater from
a development is discharged to a natural stormwater conveyance system, the
maximum peak flow rate from the one-year 24-hour storm following the land-disturbing
activity shall be calculated either:
a. In accordance with the following methodology:
QDeveloped ≤ I.F.*(QPre-developed*
RVPre-Developed)/RVDeveloped
Under no condition shall QDeveloped be greater than
QPre-Developed nor shall QDeveloped be required to be
less than that calculated in the equation (QForest * RVForest)/RVDeveloped;
where
I.F. (Improvement Factor) equals 0.8 for sites > 1 acre or
0.9 for sites ≤ 1 acre.
QDeveloped = The allowable peak flow rate of runoff
from the developed site.
RVDeveloped = The volume of runoff from the site in
the developed condition.
QPre-Developed = The peak flow rate of runoff from
the site in the pre-developed condition.
RVPre-Developed = The volume of runoff from the
site in pre-developed condition.
QForest = The peak flow rate of runoff from the
site in a forested condition.
RVForest = The volume of runoff from the site in a
forested condition; or
b. In accordance with another methodology that is demonstrated
by the local stormwater management program VSMP authority to
achieve equivalent results and is approved by the board.
4. Limits of analysis. Unless subdivision 3 of this subsection
is utilized to show compliance with the channel protection criteria, stormwater
conveyance systems shall be analyzed for compliance with channel protection
criteria to a point where either:
a. Based on land area, the site's contributing drainage area
is less than or equal to 1.0% of the total watershed area; or
b. Based on peak flow rate, the site's peak flow rate from the
one-year 24-hour storm is less than or equal to 1.0% of the existing peak flow
rate from the one-year 24-hour storm prior to the implementation of any
stormwater quantity control measures.
C. Flood protection. Concentrated stormwater flow shall be
released into a stormwater conveyance system and shall meet one of the
following criteria as demonstrated by use of acceptable hydrologic and
hydraulic methodologies:
1. Concentrated stormwater flow to stormwater conveyance
systems that currently do not experience localized flooding during the 10-year
24-hour storm event: The point of discharge releases stormwater into a
stormwater conveyance system that, following the land-disturbing activity,
confines the postdevelopment peak flow rate from the 10-year 24-hour storm
event within the stormwater conveyance system. Detention of stormwater or
downstream improvements may be incorporated into the approved land-disturbing
activity to meet this criterion, at the discretion of the stormwater program
administrative VSMP authority.
2. Concentrated stormwater flow to stormwater conveyance
systems that currently experience localized flooding during the 10-year 24-hour
storm event: The point of discharge either:
a. Confines the postdevelopment peak flow rate from the 10-year
24-hour storm event within the stormwater conveyance system to avoid the
localized flooding. Detention of stormwater or downstream improvements may be
incorporated into the approved land-disturbing activity to meet this criterion,
at the discretion of the stormwater program administrative VSMP
authority; or
b. Releases a postdevelopment peak flow rate for the 10-year
24-hour storm event that is less than the predevelopment peak flow rate from
the 10-year 24-hour storm event. Downstream stormwater conveyance systems do
not require any additional analysis to show compliance with flood protection
criteria is this option is utilized.
3. Limits of analysis. Unless subdivision 2 b of this
subsection is utilized to comply with the flood protection criteria, stormwater
conveyance systems shall be analyzed for compliance with flood protection
criteria to a point where:
a. The site's contributing drainage area is less than or equal
to 1.0% of the total watershed area draining to a point of analysis in the
downstream stormwater conveyance system;
b. Based on peak flow rate, the site's peak flow rate from the
10-year 24-hour storm event is less than or equal to 1.0% of the existing peak
flow rate from the 10-year 24-hour storm event prior to the implementation of
any stormwater quantity control measures; or
c. The stormwater conveyance system enters a mapped floodplain
or other flood-prone area, adopted by ordinance, of any locality.
D. Increased volumes of sheet flow resulting from pervious or
disconnected impervious areas, or from physical spreading of concentrated flow
through level spreaders, must be identified and evaluated for potential impacts
on down-gradient properties or resources. Increased volumes of sheet flow that
will cause or contribute to erosion, sedimentation, or flooding of down
gradient properties or resources shall be diverted to a stormwater management
facility or a stormwater conveyance system that conveys the runoff without
causing down-gradient erosion, sedimentation, or flooding. If all runoff from
the site is sheet flow and the conditions of this subsection are met, no
further water quantity controls are required.
E. For purposes of computing predevelopment runoff, all
pervious lands on the site shall be assumed to be in good hydrologic condition
in accordance with the U.S. Department of Agriculture's Natural Resources
Conservation Service (NRCS) standards, regardless of conditions existing at the
time of computation. Predevelopment runoff calculations utilizing other
hydrologic conditions may be utilized provided that it is demonstrated to and
approved by the stormwater program administrative VSMP authority
that actual site conditions warrant such considerations.
F. Predevelopment and postdevelopment runoff characteristics
and site hydrology shall be verified by site inspections, topographic surveys,
available soil mapping or studies, and calculations consistent with good
engineering practices. Guidance provided in the Virginia Stormwater Management
Handbook and by the Virginia Stormwater BMP Clearinghouse shall be considered
appropriate practices.
4VAC50-60-69. Offsite compliance options.
A. Offsite compliance options that a stormwater program
administrative VSMP authority may allow an operator to use to meet
required phosphorus nutrient reductions include the following:
1. Offsite controls utilized in accordance with a
comprehensive stormwater management plan adopted pursuant to 4VAC50-60-92 for
the local watershed within which a project is located;
2. A locality pollutant loading pro rata share program
established pursuant to § 15.2-2243 of the Code of Virginia or similar local
funding mechanism;
3. The nonpoint nutrient offset program established pursuant
to § 10.1-603.8:1 of the Code of Virginia;
4. Any other offsite options approved by an applicable state
agency or state board; and
5. When an operator has additional properties available within
the same HUC or upstream HUC that the land-disturbing activity directly
discharges to or within the same watershed as determined by the stormwater
program administrative VSMP authority, offsite stormwater management
facilities on those properties may be utilized to meet the required phosphorus
nutrient reductions from the land-disturbing activity.
B. Notwithstanding subsection A of this section, and pursuant
to § 10.1-603.8:1 of the Code of Virginia, operators shall be allowed to
utilize offsite options identified in subsection A of this section under any of
the following conditions:
1. Less than five acres of land will be disturbed;
2. The postconstruction phosphorus control requirement is less
than 10 pounds per year; or
3. At least 75% of the required phosphorus nutrient reductions
are achieved on-site. If at least 75% of the required phosphorus nutrient
reductions can not be met on-site, and the operator can demonstrate to the
satisfaction of the stormwater program administrative VSMP
authority that (i) alternative site designs have been considered that may
accommodate on-site best management practices, (ii) on-site best management
practices have been considered in alternative site designs to the maximum
extent practicable, (iii) appropriate on-site best management practices will be
implemented, and (iv) full compliance with postdevelopment nonpoint nutrient
runoff compliance requirements cannot practicably be met on-site, then the
required phosphorus nutrient reductions may be achieved, in whole or in part,
through the use of off-site compliance options.
C. Notwithstanding subsections A and B of this section,
offsite options shall not be allowed:
1. Unless the selected offsite option achieves the necessary
nutrient reductions prior to the commencement of the operator's land-disturbing
activity. In the case of a phased project, the operator may acquire or achieve
offsite nutrient reductions prior to the commencement of each phase of
land-disturbing activity in an amount sufficient for each phase.
2. In contravention of local water quality-based limitations
at the point of discharge that are (i) consistent with the determinations made
pursuant to subsection B of § 62.1-44.19:7 of the Code of Virginia, (ii)
contained in a municipal separate storm sewer system (MS4) program plan approved
accepted by the department, or (iii) as otherwise may be established or
approved by the board.
D. In order to meet the requirements of 4VAC50-60-66, offsite
options described in subdivisions 1 and 2 of subsection A of this section may
be utilized.
4VAC50-60-72. Design storms and hydrologic methods.
A. Unless otherwise specified, the prescribed design storms
are the one-year, two-year, and 10-year 24-hour storms using the site-specific
rainfall precipitation frequency data recommended by the U.S. National Oceanic
and Atmospheric Administration (NOAA) Atlas 14. Partial duration time series
shall be used for the precipitation data.
B. Unless otherwise specified, all hydrologic analyses shall
be based on the existing watershed characteristics and how the ultimate
development condition of the subject project will be addressed.
C. The U.S. Department of Agriculture's Natural Resources
Conservation Service (NRCS) synthetic 24-hour rainfall distribution and models,
including, but not limited to TR-55 and TR-20; hydrologic and hydraulic methods
developed by the U.S. Army Corps of Engineers; or other standard hydrologic and
hydraulic methods, shall be used to conduct the analyses described in this
part.
D. For drainage areas of 200 acres or less, the stormwater
program administrative VSMP authority may allow for the use of the
Rational Method for evaluating peak discharges.
E. For drainage areas of 200 acres or less, the stormwater
program administrative VSMP authority may allow for the use of the
Modified Rational Method for evaluating volumetric flows to stormwater
conveyances.
4VAC50-60-76. Linear development projects.
Unless exempt pursuant to § 10.1-603.8 B of the Code of
Virginia, linear Linear development projects shall control
postdevelopment stormwater runoff in accordance with a site-specific stormwater
management plan or a comprehensive watershed stormwater management plan
developed in accordance with these regulations.
4VAC50-60-92. Comprehensive stormwater management plans.
Local stormwater management programs A locality's
VSMP authority may develop comprehensive stormwater management plans to be
approved by the department that meet the water quality objectives, quantity
objectives, or both of this chapter:
1. Such plans shall ensure that offsite reductions equal to or
greater than those that would be required on each contributing site are
achieved within the same HUC or within another locally designated watershed.
Pertaining to water quantity objectives, the plan may provide for
implementation of a combination of channel improvement, stormwater detention,
or other measures that are satisfactory to the local stormwater management
program locality's VSMP authority to prevent downstream erosion and
flooding.
2. If the land use assumptions upon which the plan was based
change or if any other amendments are deemed necessary by the local
stormwater management program locality's VSMP authority, such program
authority shall provide plan amendments to the department for review and
approval.
3. During the plan's implementation, the local stormwater
management program locality's VSMP authority shall document nutrient
reductions accredited to the BMPs specified in the plan.
4. State and federal agencies may develop comprehensive
stormwater management plans, and may participate in locality-developed
comprehensive stormwater management plans where practicable and permitted by
the local stormwater management program locality's VSMP authority.
Part II C
Technical Criteria for Regulated Land-Disturbing Activities:
Grandfathered Projects and Projects Subject to the Provisions of 4VAC50-60-47.1
4VAC50-60-93.1. Definitions.
For the purposes of Part II C only, the following words and
terms have the following meanings unless the context clearly indicates
otherwise:
"Adequate channel" means a channel that will convey
the designated frequency storm event without overtopping the channel bank nor
causing erosive damage to the channel bed or banks.
"Aquatic bench" means a 10-foot to 15-foot wide
bench around the inside perimeter of a permanent pool that ranges in depth from
zero to 12 inches. Vegetated with emergent plants, the bench augments pollutant
removal, provides habitats, conceals trash and water level fluctuations, and
enhances safety.
"Average land cover condition" means a measure of
the average amount of impervious surfaces within a watershed, assumed to be 16%.
Note that a locality may opt to calculate actual or a calculated
watershed-specific values value for the average land cover
condition based upon 4VAC50-60-110 as approved by the Chesapeake Bay
Local Assistance Board prior to September 13, 2011.
"Bioretention basin" means a water quality BMP
engineered to filter the water quality volume (i) through an engineered
planting bed consisting of a vegetated surface layer (vegetation, mulch, ground
cover), planting soil, and sand bed and (ii) into the in-situ material.
"Bioretention filter" means a bioretention basin
with the addition of a sand filter collector pipe system beneath the planting
bed.
"Constructed wetlands" means areas intentionally
designed and created to emulate the water quality improvement function of
wetlands for the primary purpose of removing pollutants from stormwater.
"Development" means a tract of land developed or to
be developed as a unit under single ownership or unified control which is to be
used for any business or industrial purpose or is to contain three or more
residential dwelling units.
"Grassed swale" means an earthen conveyance system
which is broad and shallow with erosion resistant grasses and check dams,
engineered to remove pollutants from stormwater runoff by filtration through
grass and infiltration into the soil.
"Infiltration facility" means a stormwater
management facility that temporarily impounds runoff and discharges it via
infiltration through the surrounding soil. While an infiltration facility may
also be equipped with an outlet structure to discharge impounded runoff, such
discharge is normally reserved for overflow and other emergency conditions.
Since an infiltration facility impounds runoff only temporarily, it is normally
dry during nonrainfall periods. Infiltration basin, infiltration trench,
infiltration dry well, and porous pavement shall be considered infiltration
facilities.
"Nonpoint source pollutant runoff load" or
"pollutant discharge" means the average amount of a particular
pollutant measured in pounds per year, delivered in a diffuse manner by
stormwater runoff.
"Planning area" means a designated portion of the
parcel on which the land development project is located. Planning areas shall
be established by delineation on a master plan. Once established, planning
areas shall be applied consistently for all future projects.
"Sand filter" means a contained bed of sand that
acts to filter the first flush of runoff. The runoff is then collected beneath
the sand bed and conveyed to an adequate discharge point or infiltrated into
the in-situ soils.
"Shallow marsh" means a zone within a stormwater
extended detention basin that exists from the surface of the normal pool to a
depth of six to 18 inches, and has a large surface area and, therefore,
requires a reliable source of baseflow, groundwater supply, or a sizeable
drainage area to maintain the desired water surface elevations to support
emergent vegetation.
"Stormwater detention basin" or "detention
basin" means a stormwater management facility that temporarily impounds
runoff and discharges it through a hydraulic outlet structure to a downstream
conveyance system. While a certain amount of outflow may also occur via
infiltration through the surrounding soil, such amounts are negligible when
compared to the outlet structure discharge rates and are, therefore, not
considered in the facility's design. Since a detention facility impounds runoff
only temporarily, it is normally dry during nonrainfall periods.
"Stormwater extended detention basin" or
"extended detention basin" means a stormwater management facility
that temporarily impounds runoff and discharges it through a hydraulic outlet
structure over a specified period of time to a downstream conveyance system for
the purpose of water quality enhancement or stream channel erosion control.
While a certain amount of outflow may also occur via infiltration through the
surrounding soil, such amounts are negligible when compared to the outlet
structure discharge rates and, therefore, are not considered in the facility's
design. Since an extended detention basin impounds runoff only temporarily, it
is normally dry during nonrainfall periods.
"Stormwater extended detention basin-enhanced" or
"extended detention basin-enhanced" means an extended detention basin
modified to increase pollutant removal by providing a shallow marsh in the
lower stage of the basin.
"Stormwater retention basin" or "retention
basin" means a stormwater management facility that includes a permanent
impoundment, or normal pool of water, for the purpose of enhancing water
quality and, therefore, is normally wet even during nonrainfall periods. Storm
runoff inflows may be temporarily stored above this permanent impoundment for
the purpose of reducing flooding or stream channel erosion.
"Stormwater retention basin I" or "retention
basin I" means a retention basin with the volume of the permanent pool
equal to three times the water quality volume.
"Stormwater retention basin II" or "retention
basin II" means a retention basin with the volume of the permanent pool
equal to four times the water quality volume.
"Stormwater retention basin III" or "retention
basin III" means a retention basin with the volume of the permanent pool
equal to four times the water quality volume with the addition of an aquatic
bench.
"Vegetated filter strip" means a densely vegetated
section of land engineered to accept runoff as overland sheet flow from
upstream development. It shall adopt any natural vegetated form, from grassy
meadow to small forest. The vegetative cover facilitates pollutant removal
through filtration, sediment deposition, infiltration, and absorption, and is
dedicated for that purpose.
"Water quality volume" means the volume equal to
the first 1/2 inch of runoff multiplied by the impervious surface of the land
development project.
4VAC50-60-95. General.
A. Determination of flooding and channel erosion impacts to
receiving streams due to land-disturbing activities shall be measured at each
point of discharge from the land disturbance and such determination shall
include any runoff from the balance of the watershed that also contributes to
that point of discharge.
B. The specified design storms shall be defined as either a
24-hour storm using the rainfall distribution recommended by the U.S.
Department of Agriculture's Natural Resources Conservation Service (NRCS) when
using NRCS methods or as the storm of critical duration that produces the
greatest required storage volume at the site when using a design method such as
the Modified Rational Method.
C. For purposes of computing runoff, all pervious lands in
the site shall be assumed prior to development to be in good condition (if the
lands are pastures, lawns, or parks), with good cover (if the lands are woods),
or with conservation treatment (if the lands are cultivated); regardless of
conditions existing at the time of computation.
D. Construction of stormwater management facilities or
modifications to channels shall comply with all applicable laws, regulations,
and ordinances. Evidence of approval of all necessary permits shall be
presented.
E. Impounding structures that are not covered by the
Impounding Structure Regulations (4VAC50-20) shall be engineered for structural
integrity during the 100-year storm event.
F. Predevelopment and postdevelopment runoff rates shall be
verified by calculations that are consistent with good engineering practices.
G. Outflows from a stormwater management facility or
stormwater conveyance system shall be discharged to an adequate channel.
H. Proposed residential, commercial, or industrial
subdivisions shall apply these stormwater management criteria to the land
disturbance as a whole. Individual lots in new subdivisions shall not be
considered separate land-disturbing activities, but rather the entire
subdivision shall be considered a single land development project. Hydrologic
parameters shall reflect the ultimate land disturbance and shall be used in all
engineering calculations.
I. All stormwater management facilities shall have an
inspection and maintenance plan that identifies the owner and the responsible
party for carrying out the inspection and maintenance plan.
J. Construction of stormwater management impoundment
structures within a Federal Emergency Management Agency (FEMA) designated
100-year floodplain shall be avoided to the extent possible. When this is
unavoidable, all stormwater management facility construction shall be in
compliance with all applicable regulations under the National Flood Insurance
Program, 44 CFR Part 59.
K. Natural channel characteristics shall be preserved to the
maximum extent practicable.
L. Land-disturbing activities shall comply with the Virginia
Erosion and Sediment Control Law (§ 10.1-560 et seq. of the Code of Virginia)
and attendant regulations.
M. Flood control and stormwater management facilities that
drain or treat water from multiple development projects or from a significant
portion of a watershed may be allowed in resource protection areas defined in
the Chesapeake Bay Preservation Act provided such facilities are allowed and
constructed in accordance with the Stormwater Management Act (§ 10.1-603.2
et seq. of the Code of Virginia) and this chapter, and provided that
(i) the local government has conclusively established that the location of the
facility within the resource protection area is the optimum location; (ii) the
size of the facility is the minimum necessary to provide necessary flood
control, stormwater treatment, or both; and (iii) the facility must be
consistent with a stormwater management program comprehensive
stormwater management plan developed and approved in accordance with 4VAC50-60-92
or with a VSMP that has been approved prior to July 1, 2012, by the
board, the Chesapeake Bay Local Assistance Board prior to its abolishment on
July 1, 2012, or the Board of Conservation and Recreation; (iv) all
applicable permits for construction in state or federal waters must be obtained
from the appropriate state and federal agencies, such as the U.S. Army Corps of
Engineers, the Virginia Department of Conservation and Recreation, the Virginia
Department of Environmental Quality, and the Virginia Marine Resources
Commission; (v) approval must be received from the local government prior to
construction; and (vi) routine maintenance is allowed to be performed on such
facilities to assure that they continue to function as designed. It is not the
intent of this subdivision to allow a best management practice that collects
and treats runoff from only an individual lot or some portion of the lot to be
located within a resource protection area.
4VAC50-60-96. Water quality.
A. Compliance with the water quality criteria may be achieved
by applying the performance-based criteria or the technology-based criteria to
either the site or a planning area.
B. Performance-based criteria. For land-disturbing
activities, the calculated postdevelopment nonpoint source pollutant runoff
load shall be compared to the calculated predevelopment load based upon the
average land cover condition or the existing site condition. A BMP shall be
located, designed, and maintained to achieve the target pollutant removal
efficiencies specified in Table 1 of this section to effectively reduce the
pollutant load to the required level based upon the following four applicable
land development situations for which the performance criteria apply:
1. Situation 1 consists of land-disturbing activities where
the existing percent impervious cover is less than or equal to the average land
cover condition and the proposed improvements will create a total percent
impervious cover that is less than the average land cover condition.
Requirement: No reduction in the after disturbance pollutant
discharge is required.
2. Situation 2 consists of land-disturbing activities where
the existing percent impervious cover is less than or equal to the average land
cover condition and the proposed improvements will create a total percent
impervious cover that is greater than the average land cover condition.
Requirement: The pollutant discharge after disturbance shall
not exceed the existing pollutant discharge based on the average land cover
condition.
3. Situation 3 consists of land-disturbing activities where
the existing percent impervious cover is greater than the average land cover
condition.
Requirement: The pollutant discharge after disturbance shall
not exceed (i) the pollutant discharge based on existing conditions less 10% or
(ii) the pollutant discharge based on the average land cover condition,
whichever is greater.
4. Situation 4 consists of land-disturbing activities where
the existing percent impervious cover is served by an existing stormwater
management BMP that addresses water quality.
Requirement: The pollutant discharge after disturbance shall
not exceed the existing pollutant discharge based on the existing percent
impervious cover while served by the existing BMP. The existing BMP shall be
shown to have been designed and constructed in accordance with proper design
standards and specifications, and to be in proper functioning condition.
C. Technology-based criteria. For land-disturbing activities,
the postdeveloped stormwater runoff from the impervious cover shall be treated
by an appropriate BMP as required by the postdeveloped condition percent
impervious cover as specified in Table 1 of this section. The selected BMP
shall be located, designed, and maintained to perform at the target pollutant
removal efficiency specified in Table 1 or those found in 4VAC50-60-65. Design
standards and specifications for the BMPs in Table 1 that meet the required target
pollutant removal efficiency are available in the 1990 Virginia Stormwater
Management Handbook. Other approved BMPs available on the Virginia Stormwater
BMP Clearinghouse website at http://www.vwrrc.vt.edu/swc may also be utilized.
|
Table 1*
|
|
Water Quality BMP*
|
Target Phosphorus Removal Efficiency
|
Percent Impervious Cover
|
|
Vegetated
filter strip
|
10%
|
16-21%
|
|
Grassed
Swale
|
15%
|
|
Constructed
wetlands
|
20%
|
22-37%
|
|
Extended
detention (2 x WQ Vol)
|
35%
|
|
Retention
basin I (3 x WQ Vol)
|
40%
|
|
Bioretention
basin
|
50%
|
38-66%
|
|
Bioretention
filter
|
50%
|
|
Extended
detention-enhanced
|
50%
|
|
Retention
basin II (4 x WQ Vol)
|
50%
|
|
Infiltration
(1 x WQ Vol)
|
50%
|
|
Sand
filter
|
65%
|
67-100%
|
|
Infiltration
(2 x WQ Vol)
|
65%
|
|
Retention
basin III (4 x WQ Vol with aquatic bench)
|
65%
|
|
*Innovative
or alternate BMPs not included in this table may be allowed at the discretion
of the stormwater program administrative VSMP authority.
Innovative or alternate BMPs not included in this table that target
appropriate nonpoint source pollution other than phosphorous may be allowed
at the discretion of the stormwater program administrative VSMP
authority.
|
4VAC50-60-97. Stream channel erosion.
A. Properties and receiving waterways downstream of any
land-disturbing activity shall be protected from erosion and damage due to
changes in runoff rate of flow and hydrologic characteristics, including, but
not limited to, changes in volume, velocity, frequency, duration, and peak flow
rate of stormwater runoff in accordance with the minimum design standards set
out in this section.
B. The stormwater program administrative VSMP
authority shall require compliance with subdivision 19 of 4VAC50-30-40 of the
Erosion and Sediment Control Regulations, promulgated pursuant to Article 4 (§ 10.1-560
et seq.) of Chapter 5 of Title 10.1 of the Code of Virginia.
C. The local stormwater management program locality's
VSMP authority may determine that some watersheds or receiving stream
systems require enhanced criteria in order to address the increased frequency
of bankfull flow conditions (top of bank) brought on by land-disturbing
activities or where more stringent requirements are necessary to address
total maximum daily load requirements or to protect exceptional waters.
Therefore, in lieu of the reduction of the two-year postdeveloped peak rate of
runoff as required in subsection B of this section, the land development
project being considered shall provide 24-hour extended detention of the runoff
generated by the one-year, 24-hour duration storm.
D. In addition to subsections B and C of this section, local
stormwater management programs, a locality's VSMP authority by local
ordinance may, or the board by state regulation may, adopt more stringent
channel analysis criteria or design standards to ensure that the natural level
of channel erosion, to the maximum extent practicable, will not increase due to
the land-disturbing activities. These criteria may include, but are not limited
to, the following:
1. Criteria and procedures for channel analysis and
classification.
2. Procedures for channel data collection.
3. Criteria and procedures for the determination of the
magnitude and frequency of natural sediment transport loads.
4. Criteria for the selection of
proposed natural or manmade channel linings.
Part III
General Provisions Applicable to Stormwater Program Administrative
Authorities
and to Local Stormwater Management Programs VSMPs and VSMP Authorities
4VAC50-60-100. Applicability.
This part establishes the board's procedures for the
authorization of a qualifying local program VSMP, the board's
procedures for the administration of a local stormwater management program
VSMP by an authorized qualifying local program a locality's
VSMP authority or by other VSMP authorities where the procedures may be
applicable, and board and department oversight authorities for an
authorized qualifying local program, and the board's procedures for utilization
by the department in administering the Virginia Stormwater Management Program
in localities where no qualifying local program is authorized a VSMP.
4VAC50-60-102. Authority.
If a locality an authorized entity pursuant to §
10.1-603.3 of the Code of Virginia has adopted a local stormwater
management program VSMP in accordance with the Virginia Stormwater
Management Act (§ 10.1-603.2 et seq. of the Code of Virginia) and the
board has deemed such program adoption consistent with the Virginia Stormwater
Management Act and these regulations in accordance with § 10.1-603.3 F
G of the Code of Virginia, the board may authorize a locality the
entity to administer a qualifying local program VSMP.
Pursuant to § 10.1-603.4 of the Code of Virginia, the board is required to
establish standards and procedures for such an authorization.
4VAC50-60-103. Stormwater program administrative VSMP
authority requirements for Chesapeake Bay Preservation Act land-disturbing activities.
A. A stormwater program administrative VSMP
authority shall regulate runoff associated with Chesapeake Bay Preservation Act
land-disturbing activities in accordance with the following:
1. Such land-disturbing activities shall not require
completion of a registration statement or require coverage under the VSMP
General Permit for Discharges of Stormwater from Construction Activities but
shall be subject to the technical criteria and program and administrative
requirements set out in 4VAC50-60-51.
2. A VSMP authority permit, where applicable,
shall be issued permitting the land-disturbing activity.
3. The stormwater program administrative VSMP
authority shall regulate such land-disturbing activities in compliance with
the:
a. Program requirements in 4VAC50-60-104;
b. Plan review requirements in 4VAC50-60-108 with the
exception of subsection D of 4VAC50-60-108;
c. Long-term stormwater management facility requirements of
4VAC50-60-112;
d. Inspection requirements of 4VAC50-60-114 with the exception
of subdivisions A 3 and A 4 of 4VAC50-60-114;
e. Enforcement components of 4VAC50-60-116;
f. Hearing requirements of 4VAC50-60-118;
g. Exception conditions of 4VAC50-60-122 excluding subsection
C of 4VAC50-60-122 which is not applicable; and
h. Reporting and recordkeeping requirements of 4VAC50-60-126
with the exception of subdivision B 3 of 4VAC50-60-126.
B. A local stormwater management program locality's
VSMP authority shall adopt an ordinance, and other VSMP authorities
shall provide program documentation, that incorporates the components of
this section.
C. In accordance with subdivision 5 of § 10.1-603.4 of the
Code of Virginia, a stormwater program administrative locality's VSMP
authority may collect a permit issuance fee from the applicant of $290 and an
annual maintenance fee of $50 for such land-disturbing activities.
Part III A
Programs Operated by a Stormwater Program Administrative VSMP
Authority
4VAC50-60-104. Criteria for programs operated by a stormwater
program administrative VSMP authority.
A. All stormwater program administrative VSMP
authorities shall require compliance with the provisions of Part II
(4VAC50-60-40 et seq.) of this chapter.
B. When a local stormwater management program locality's
VSMP authority has adopted requirements more stringent than those imposed
by this chapter in accordance with § 10.1-603.7 of the Code of Virginia or
implemented a comprehensive stormwater management plan, the department shall
consider such requirements in its review of state projects within that locality
in accordance with Part IV (4VAC50-60-160 et seq.) of this chapter.
C. Nothing in this part shall be construed as authorizing a
locality to regulate, or to require prior approval by the locality for, a state
or federal project, unless authorized by separate statute.
D. A stormwater program administrative VSMP
authority may require, excluding state and federal entities, the
submission of a reasonable performance bond or other financial surety and
provide for the release of such sureties in accordance with the criteria set
forth in § 10.1-603.8 of the Code of Virginia.
4VAC50-60-106. Additional requirements for local stormwater
management programs VSMP authorities.
A. A local stormwater management program locality's
VSMP authority shall adopt ordinances, and other VSMP authorities shall
provide program documentation, that ensure compliance with the requirements
set forth in 4VAC50-60-460 L.
B. The local stormwater management program locality's
VSMP authority shall adopt ordinances, and other VSMP authorities shall
provide program documentation, at least as stringent as the provisions of
the Virginia Stormwater Management Program (VSMP) General Permit for
Discharges of Stormwater from Construction Activities.
4VAC50-60-108. Stormwater management plan review.
A. A stormwater program administrative VSMP
authority shall review and approve stormwater management plans.
B. A stormwater program administrative VSMP
authority shall approve or disapprove a stormwater management plan according to
the following:
1. The stormwater program administrative VSMP
authority shall determine the completeness of a plan in accordance with
4VAC50-60-55, and shall notify the applicant of any determination, within 15
calendar days of receipt. Where available to the applicant, electronic
communication may be considered communication in writing.
a. If within those 15 calendar days the plan is deemed to be
incomplete, the applicant shall be notified in writing of the reasons the plan
is deemed incomplete.
b. If a determination of completeness is made and communicated
to the applicant within the 15 calendar days, an additional 60 calendar days
from the date of the communication will be allowed for the review of the plan.
c. If a determination of completeness is not made and
communicated to the applicant within the 15 calendar days, the plan shall be
deemed complete as of the date of submission and a total of 60 calendar days
from the date of submission will be allowed for the review of the plan.
d. The stormwater program administrative VSMP authority
shall review, within 45 calendar days of the date of resubmission, any plan
that has been previously disapproved.
2. During the review period, the plan shall be approved or
disapproved and the decision communicated in writing to the person responsible
for the land-disturbing activity or his designated agent. If the plan is not
approved, the reasons for not approving the plan shall be provided in writing.
Approval or denial shall be based on the plan's compliance with the
requirements of this chapter and of the stormwater program administrative
VSMP authority. Where available to the applicant, electronic
communication may be considered communication in writing.
3. If a plan meeting all requirements of this chapter and of
the stormwater program administrative VSMP authority is submitted
and no action is taken within the time specified above, the plan shall be
deemed approved.
C. Each approved plan may be modified in accordance with the
following:
1. Modifications to an approved stormwater management plan
shall be allowed only after review and written approval by the stormwater
program administrative VSMP authority. The stormwater program
administrative VSMP authority shall have 60 calendar days to respond
in writing either approving or disapproving such requests.
2. Based on an inspection, the stormwater program
administrative VSMP authority may require amendments to the approved
stormwater management plan to address any deficiencies within a time frame set
by the stormwater program administrative authority.
D. A stormwater program administrative authority shall not
provide authorization to begin land disturbance until provided evidence of VSMP
permit coverage. Upon the development of an online reporting system by
the department, but no later than July 1, 2014, a VSMP authority shall then be
required to obtain evidence of state permit coverage, where it is required,
prior to providing approval to begin land disturbance.
E. The stormwater program administrative VSMP
authority shall require the submission of a construction record drawing for
permanent stormwater management facilities in accordance with 4VAC50-60-55. A stormwater
program administrative VSMP authority may elect not to require
construction record drawings for stormwater management facilities for which
maintenance agreements are not required pursuant to 4VAC50-60-112.
4VAC50-60-112. Long-term maintenance of permanent stormwater
management facilities.
A. The stormwater program administrative VSMP
authority shall require the provision of long-term responsibility for and
maintenance of stormwater management facilities and other techniques specified
to manage the quality and quantity of runoff. Such requirements shall be set
forth in an instrument recorded in the local land records prior to state
permit termination or earlier as required by the stormwater program
administrative VSMP authority and shall at a minimum:
1. Be submitted to the stormwater program administrative
VSMP authority for review and approval prior to the approval of the
stormwater management plan;
2. Be stated to run with the land;
3. Provide for all necessary access to the property for
purposes of maintenance and regulatory inspections;
4. Provide for inspections and maintenance and the submission
of inspection and maintenance reports to the stormwater program
administrative VSMP authority; and
5. Be enforceable by all appropriate governmental parties.
B. At the discretion of the stormwater program
administrative VSMP authority, such recorded instruments need not be
required for stormwater management facilities designed to treat stormwater
runoff primarily from an individual residential lot on which they are located,
provided it is demonstrated to the satisfaction of the stormwater program
administrative VSMP authority that future maintenance of such
facilities will be addressed through an enforceable mechanism at the discretion
of the stormwater program administrative VSMP authority.
4VAC50-60-114. Inspections.
A. The stormwater program administrative VSMP
authority shall inspect the land-disturbing activity during construction for:
1. Compliance with the approved erosion and sediment control
plan;
2. Compliance with the approved stormwater management plan;
3. Development, updating, and implementation of a pollution
prevention plan; and
4. Development and implementation of any additional control
measures necessary to address a TMDL.
B. The stormwater program administrative VSMP
authority shall establish an inspection program that ensures that stormwater
management facilities are being adequately maintained as designed after
completion of land-disturbing activities. Inspection programs shall:
1. Be approved by the board;
2. Ensure that each stormwater management facility is
inspected by the stormwater program administrative VSMP
authority, or its designee, not to include the owner, except as provided in
subsections C and D of this section, at least once every five years; and
3. Be documented by records.
C. The stormwater program administrative VSMP
authority may utilize the inspection reports of the owner of a stormwater
management facility as part of an inspection program established in subsection
B of this section if the inspection is conducted by a person who is licensed as
a professional engineer, architect, landscape architect, or land surveyor
pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1; a person
who works under the direction and oversight of the licensed professional
engineer, architect, landscape architect, or land surveyor; or a person who
holds an appropriate certificate of competence from the board.
D. If a recorded instrument is not required pursuant to
4VAC50-60-112, a stormwater program administrative VSMP authority
shall develop a strategy for addressing maintenance of stormwater management
facilities designed to treat stormwater runoff primarily from an individual
residential lot on which they are located. Such a strategy may include periodic
inspections, homeowner outreach and education, or other method targeted at
promoting the long-term maintenance of such facilities. Such facilities shall
not be subject to the requirement for an inspection to be conducted by the stormwater
program administrative VSMP authority.
4VAC50-60-116. Enforcement.
A. A stormwater program administrative locality's
VSMP authority shall incorporate components from subdivisions 1 and 2 of
this subsection.
1. Informal and formal administrative enforcement procedures
may include:
a. Verbal warnings and inspection reports;
b. Notices of corrective action;
c. Consent special orders and civil charges in accordance with
subdivision 7 of § 10.1-603.2:1 and § 10.1-603.14 D 2 of the Code of Virginia;
d. Notices to comply in accordance with § 10.1-603.11 of the
Code of Virginia;
e. Special orders in accordance with subdivision 7 of § 10.1-603.2:1
of the Code of Virginia;
f. Emergency special orders in accordance with subdivision 7
of § 10.1-603.2:1 of the Code of Virginia; and
g. Public notice and comment periods for proposed settlements
and consent special orders pursuant to 4VAC50-60-660.
2. Civil and criminal judicial enforcement procedures may
include:
a. Schedule of civil penalties in accordance with § 10.1-603.14
of the Code of Virginia;
b. Criminal penalties in accordance with § 10.1-603.14 B
and C of the Code of Virginia; and
c. Injunctions in accordance with §§ 10.1-603.12:4,
10.1-603.2:1 and 10.1-603.14 D 1 of the Code of Virginia.
B. A stormwater program administrative locality's
VSMP authority shall develop policies and procedures that outline the steps
to be taken regarding enforcement actions under the Stormwater Management Act
and attendant regulations and local ordinances.
C. Pursuant to § 10.1-603.14 A of the Code of Virginia,
the permit-issuing locality's VSMP authority shall use the
following schedule of civil penalties for enforcement actions. The court has
the discretion to impose a maximum penalty of $32,500 per violation per day in
accordance with § 10.1-603.14 A of the Code of Virginia. Such violation
may reflect the degree of harm caused by the violation. The court may take into
account the economic benefit to the violator from noncompliance. Such
violations include, but are not limited to:
1. No state permit registration;
2. No SWPPP;
3. Incomplete SWPPP;
4. SWPPP not available for review;
5. No approved erosion and sediment control plan;
6. Failure to install stormwater BMPs or erosion and sediment
controls;
7. Stormwater BMPs or erosion and sediment controls improperly
installed or maintained;
8. Operational deficiencies;
9. Failure to conduct required inspections;
10. Incomplete, improper, or missed inspections.
D. Pursuant to subdivision 2 of § 10.1-603.2:1 of the Code of
Virginia, authorization to administer a local stormwater management VSMP
program shall not remove from the board the authority to enforce the provisions
of the Act and attendant regulations.
E. The department may terminate VSMP state
permit coverage during its term and require application for an individual state
permit or deny a state permit renewal application for failure to comply
with state permit conditions or on its own initiative in accordance with
the Act and this chapter.
F. Pursuant to § 10.1-603.14 A of the Code of Virginia, civil
penalties recovered by a local stormwater management program locality's
VSMP authority shall be paid into the treasury of the locality in which the
violation occurred and are to be used for the purpose of minimizing,
preventing, managing, or mitigating pollution of the waters of the locality and
abating environmental pollution therein in such manner as the court may, by
order, direct.
G. The department may provide additional guidance concerning
suggested penalty amounts in its Stormwater Management Enforcement Manual.
4VAC50-60-118. Hearings.
The stormwater program administrative VSMP
authority shall ensure that any permit applicant, or permittee,
or person subject to state permit requirements under the Act aggrieved by
any action of the stormwater program administrative VSMP
authority taken without a formal hearing, or by inaction of the stormwater
program administrative VSMP authority, shall have a right to a
hearing pursuant to § 10.1-603.12:6 of the Code of Virginia and shall
ensure that all hearings held under this chapter shall be conducted in accordance
a manner consistent with § 10.1-603.12:7 of the Code of Virginia or
as otherwise provided by law. The provisions of the Administrative Process
Act (§ 2.2-4000 et seq.) shall not apply to decisions rendered by
localities but appeals shall be conducted in accordance with local appeal
procedures.
4VAC50-60-122. Exceptions.
A. A stormwater program administrative VSMP
authority may grant exceptions to the provisions of Part II B or Part II C of
this chapter. An exception may be granted provided that (i) the exception is
the minimum necessary to afford relief, (ii) reasonable and appropriate
conditions shall be imposed as necessary upon any exception granted so that the
intent of the Act and this chapter are preserved, (iii) granting the exception
will not confer any special privileges that are denied in other similar
circumstances, and (iv) exception requests are not based upon conditions or
circumstances that are self-imposed or self-created.
B. Economic hardship alone is not sufficient reason to grant
an exception from the requirements of this chapter.
C. Under no circumstance shall the stormwater program
administrative VSMP authority grant an exception to the requirement
that the land-disturbing activity obtain required VSMP state
permits, nor approve the use of a BMP not found on the Virginia
Stormwater BMP Clearinghouse Website, except where allowed under Part II C (4VAC50-60-146
et seq.) of this chapter.
D. Exceptions to requirements for phosphorus reductions shall
not be allowed unless offsite options available through 4VAC50-60-69 have been
considered and found not available.
E. A record of all exceptions granted shall be maintained by
the stormwater program administrative VSMP authority in
accordance with 4VAC50-60-126.
4VAC50-60-126. Reports and recordkeeping.
A. On a fiscal year basis (July 1 to June 30), a local
stormwater management program VSMP authority shall report to the
department by October 1 of each year in a format provided by the department.
The information to be provided shall include the following:
1. Information on each permanent stormwater management
facility completed during the fiscal year to include type of stormwater
management facility, geographic coordinates, acres treated, and the surface
waters or karst features into which the stormwater management facility will
discharge;
2. Number and type of enforcement actions during the fiscal
year; and
3. Number of exceptions granted during the fiscal year.
B. A stormwater program administrative VSMP
authority shall keep records in accordance with the following:
1. Project records, including approved stormwater management
plans, shall be kept for three years after state permit termination or
project completion.
2. Stormwater management facility inspection records shall be
documented and retained for at least five years from the date of inspection.
3. Construction record drawings shall be maintained in
perpetuity or until a stormwater management facility is removed.
4. All registration statements submitted in accordance with
4VAC50-60-59 shall be documented and retained for at least three years from the
date of project completion or state permit termination.
Part III B
Department of Conservation and Recreation Procedures for Review of Local
Stormwater Management Programs VSMPs
4VAC50-60-142. Authority and applicability.
This part specifies the criteria that the department will
utilize in reviewing a locality's VSMP authority's administration
of a local stormwater management program VSMP pursuant to § 10.1-603.12
of the Code of Virginia following the board's approval of such program in
accordance with the Act and this chapter.
4VAC50-60-144. Local Virginia stormwater
management program review.
A. The department shall review each board-approved local
stormwater management program VSMP at least once every five years on
a review schedule approved by the board. The department may review a local
stormwater management program VSMP on a more frequent basis if
deemed necessary by the board and shall notify the local government VSMP
authority if such review is scheduled.
B. The review of a board-approved local stormwater
management program VSMP shall consist of the following:
1. An interview between department staff and the local
stormwater management program VSMP administrator or designee;
2. A review of the local ordinance(s) and other applicable
documents;
3. A review of a subset of the plans approved by the local
stormwater management program VSMP authority for consistency of
application including exceptions granted and calculations or other
documentation that demonstrates that required nutrient reductions are achieved
using appropriate on-site and off-site compliance options;
4. A review of the funding and staffing plan developed in
accordance with 4VAC50-60-148;
5. An inspection of regulated activities; and
6. A review of enforcement actions and an accounting of
amounts recovered through enforcement actions where applicable.
C. To the extent practicable, the department will coordinate
the reviews with its other local government program reviews for the
same entity to avoid redundancy.
D. The department shall provide its results and
compliance recommendations to the board in the form of a corrective
action agreement if deficiencies are found within 90 120 days
of the completion of a review otherwise the board may find the program
compliant.
E. The board shall determine if the local stormwater
management program VSMP and ordinances where applicable are
consistent with the Act and state stormwater management regulations and notify
the local stormwater management program VSMP authority of its
findings. If such findings indicate that the program is consistent with the Act
and attendant regulations, the findings shall be provided to the local
stormwater management program VSMP authority at least 21 days in
advance of the meeting where the board will take action on the locality's
program VSMP. If such findings indicate that the program is
inconsistent with the Act and attendant regulations, the findings shall be
provided to the local stormwater management program VSMP authority
at least 35 days in advance of the meeting where the board will take action on
the locality's program VSMP.
F. If the board determines that the deficiencies noted in the
review will cause the local stormwater management program VSMP to
be out of compliance with the Act and attendant regulations, the board shall
notify the local stormwater management program VSMP authority
concerning the deficiencies and provide a reasonable period of time in
accordance with § 10.1-603.12 of the Code of Virginia for corrective
action to be taken. If the local stormwater management program VSMP
authority agrees to the corrective action approved by the board, the local
stormwater management program VSMP will be considered to be
conditionally compliant with the Act and attendant regulations until a
subsequent finding of compliance is issued by the board. If the local
stormwater management program VSMP authority fails to take the
board's required corrective action implement the necessary compliance
actions identified by the board within the specified time, the board may
take action pursuant to § 10.1-603.12 of the Code of Virginia. A local
stormwater management program that fails to take corrective action in
accordance with the board requirements shall not be considered a qualifying
local program for purposes of the Virginia Stormwater Management Program
permitting regulations.
Part III C
Virginia Soil and Water Conservation Board Authorization Procedures for Local
Virginia Stormwater Management Programs
4VAC50-60-146. Authority and applicability.
Subdivision A 1 of § 10.1-603.4 of the Code of
Virginia requires that the board establish standards and procedures for authorizing
a locality to administer a stormwater management program for
administering a VSMP. In accordance with that requirement, and with the
further authority conferred upon the board by the Virginia Stormwater
Management Act (§ 10.1-603.2 et seq. of the Code of Virginia), this part
specifies the procedures the board will utilize in authorizing a locality
VSMP authority to administer a qualifying local program VSMP.
4VAC50-60-148. Local Virginia stormwater
management program administrative requirements.
A. A local stormwater management program VSMP
shall provide for the following:
1. Identification of the authority accepting complete
registration statements and of the authorities completing plan review, plan
approval, inspection, and enforcement;
2. Submission and approval of erosion and sediment control
plans in accordance with the Virginia Erosion and Sediment Control Law and
attendant regulations and the submission and approval of stormwater management
plans;
3. Requirements to ensure compliance with 4VAC50-60-54,
4VAC50-60-55, and 4VAC50-60-56;
4. Requirements for inspections and monitoring of construction
activities by the operator for compliance with local ordinances;
5. Requirements for long-term inspection and maintenance of
stormwater management facilities;
6. Collection, distribution to the state if required, and
expenditure of fees;
7. Enforcement procedures and civil penalties where
applicable;
8. Policies and procedures to obtain and release bonds, if
applicable; and
9. Procedures for complying with the applicable reporting and
recordkeeping requirements in 4VAC50-60-126.
B. A local stormwater management program locality's
VSMP authority shall adopt and enforce an ordinance(s) that incorporates
the components set out in subdivisions 1 through 5 and 7 of subsection A of
this section. Other VSMP authorities shall provide supporting documentation
that incorporate the components set out in subdivisions 1 through 5 of
subsection A of this section in a format acceptable to the department.
4VAC50-60-150. Authorization procedures for local Virginia
stormwater management programs.
A. A locality required to adopt a program VSMP
in accordance with § 10.1-603.3 A of the Code of Virginia or those
electing to seek authorization to administer a qualifying local program a
town electing to adopt its own VSMP in accordance with § 10.1-603.3 B of the
Code of Virginia, must submit to the board an application package which, at
a minimum, contains the following:
1. The draft local stormwater management program VSMP
ordinance(s) as required in 4VAC50-60-148;
2. A funding and staffing plan; and
3. The policies and procedures including, but not limited to,
agreements with Soil and Water Conservation Districts, adjacent localities, or
other public or private entities for the administration, plan review,
inspection, and enforcement components of the program; and
4. Such ordinances, plans, policies, and procedures must
account for any town lying within the county as part of the locality's VSMP
program unless such towns choose to adopt their own program.
B. Upon receipt of an application package, the board or its
designee shall have 30 calendar days to determine the completeness of the
application package. If an application package is deemed to be incomplete based
on the criteria set out in subsection A of this section, the board or its
designee must identify to the locality VSMP authority applicant
in writing the reasons the application package is deemed deficient.
C. Upon receipt of a complete application package, the board
or its designee shall have 120 calendar days for the review of the application
package, unless an extension of time, not to exceed 12 months unless
otherwise specified by the board in accordance with § 10.1-603.3 M of the Code
of Virginia, is requested by the department, provided the VSMP authority
applicant has made substantive progress. During the 120-day review period,
the board or its designee shall either approve or disapprove the application,
or notify the locality of a time extension for the review, and communicate its
decision to the locality VSMP authority applicant in writing. If
the application is not approved, the reasons for not approving the application
shall be provided to the locality VSMP authority applicant in
writing. Approval or denial shall be based on the application's compliance with
the Virginia Stormwater Management Act and this chapter.
D. A locality required to adopt a local stormwater
management program VSMP authority applicant in accordance with § 10.1-603.3
A of the Code of Virginia shall submit a complete application package
for the board's review pursuant to a schedule set by the board in accordance
with § 10.1-603.3 and shall adopt a local stormwater management program
VSMP consistent with the Act and this chapter within the timeframe
established pursuant to § 10.1-603.3 or otherwise established by the
board.
E. A locality town or other authorized entity
not required to adopt a local stormwater management program VSMP
in accordance with § 10.1-603.3 A of the Code of Virginia but electing to adopt
a local stormwater management program shall notify the board in accordance
with the following:
1. A locality electing to adopt a local stormwater
management program may notify the board of its intention by March 13, 2012.
Such locality shall submit a complete application package for the board's
review pursuant to a schedule set by the board and shall adopt a local
stormwater management program within the timeframe established by the board.
2. A locality electing to adopt a local stormwater
management program that does not notify the board within the initial six-month
period of its intention VSMP may thereafter notify the board
at any regular meeting of the board. Such notification shall include a proposed
schedule for adoption of a local stormwater management program on or after
July 1, 2014, and within a timeframe agreed upon by the board.
F. A local stormwater management program approved by the
board shall be considered a qualifying local program for purposes of the Virginia
Stormwater Management Program permitting regulations.
G. The department shall administer the responsibilities of
the Act and this chapter in any locality in which a local stormwater management
program has not been adopted. The department shall develop a schedule, to be
approved by the board, for adoption and implementation of the requirements of
this chapter in such localities. Such schedule may include phases of
implementation and shall be based upon considerations including the typical
number of permitted projects located within a locality, total number of acres
disturbed by such permitted projects, and such other considerations as may be
deemed necessary by the board.
Part IV
Technical Criteria and State Permit Application Requirements for State
Projects
4VAC50-60-160. Technical criteria and requirements for state
projects.
A. This part specifies technical criteria and administrative
procedures for all state projects.
B. Stormwater management state permit applications
prepared for state projects shall comply with the technical criteria outlined
in Part II (4VAC50-60-40 et seq.) of this chapter and, to the maximum extent
practicable, any local stormwater management program locality's VSMP
authority's technical requirements adopted pursuant to the Act. It shall be
the responsibility of the state agency to demonstrate that the local program
locality's VSMP authority's technical requirements are not practical for
the project under consideration.
C. The department may establish criteria for selecting either
the site or a planning area on which to apply the water quality criteria.
D. As a minimum, stormwater management state permit
application shall contain the following:
1. The location and the design of the proposed stormwater
management facilities.
2. Overall site plan with pre-developed and post-developed
condition drainage area maps.
3. Comprehensive hydrologic and hydraulic computations of the
pre-development and post-development runoff conditions for the required design
storms, considered individually.
4. Calculations verifying compliance with the water quality
requirements.
5. A description of the requirements for maintenance of the
stormwater management facilities and a recommended schedule of inspection and
maintenance.
6. The identification of a person or persons who will be
responsible for maintenance.
7. All stormwater management and erosion and sediment control
plans associated with a state permit application shall be appropriately
sealed and signed by a professional in adherence to all minimum standards and
requirements pertaining to the practice of that profession in accordance with
Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia and attendant
regulations.
4VAC50-60-170. Requirements for state stormwater
management permit application annual standards and specifications.
A. A permit application for approval of stormwater
management standards Standards and specifications may be submitted
to the department by a state agency on an annual basis. Such standards and
specifications shall be consistent with the requirements of the Act and this
chapter, including the General Permit for Discharges of Stormwater from
Construction Activities (4VAC50-60-1100 et seq.), and the Erosion and Sediment
Control Law (§ 10.1-560 et seq. of the Code of Virginia) and associated
regulations. Each project constructed in accordance with the requirements of
the Act, this chapter, and where required standards and specifications shall
obtain coverage issued under the state general permit prior to land
disturbance. State agency stormwater management standards and
specifications describe how land-disturbing activities shall be conducted
and shall include, but are not limited to:
1. Technical criteria to meet the requirements of this the
Act and regulations developed under this Act this chapter.
2. Provisions for the preparation of individual stormwater
management and erosion and sediment control plans for each project. In
addition, the individual plans, to the maximum extent practicable, shall comply
with any local stormwater management program locality's VSMP
authority's technical requirements adopted pursuant to the Act. It shall be
the responsibility of the state agency to demonstrate that the local program
locality's VSMP authority's technical requirements are not practical for
the project under consideration.
3. Provisions for the long-term responsibility and maintenance
of stormwater management control devices and other techniques specified to
manage the quantity and quality of runoff, including an inspection and
maintenance schedule, shall be developed and implemented.
4. Provisions for erosion and sediment control and stormwater
management program administration, plan design, review and approval, and
construction inspection and enforcement;
5. Provisions for ensuring that responsible personnel and
contractors obtain certifications or qualifications for erosion and sediment
control and stormwater management comparable to those required for local
government VSMP authorities;
6. Implementation of a project tracking and notification
system to the department of all land-disturbing activities covered under this
the Act and this chapter; and
7. Requirements for documenting on-site changes as they occur
to ensure compliance with the requirements of the Act and this chapter.
B. Copies of such stormwater management specifications and
standards including, but not limited to, design manuals, technical guides and
handbooks, shall be submitted.
4VAC50-60-180. Administrative procedures: stormwater management
permit applications.
A. Within 30 days after receipt of a complete state
permit application (registration statement) submitted by a state agency, the
department shall issue or deny the state permit.
1. The department shall transmit its decision in writing to
the state agency that submitted the state permit application.
2. Denied state permit applications shall be revised
and resubmitted to the department.
B. Approval of a state permit application
(registration statement) for a state project shall be subject to the following
conditions:
1. The state agency shall comply with all applicable
requirements of the state permit and this chapter, and shall certify
that all land clearing, construction, land development, and drainage will be
done according to the state permit.
2. The land development shall be conducted only within the
area specified in the state permit.
3. No changes may be made to a plan for which a state
permit has been issued without review and written approval by the department.
4. The department shall be notified one week prior to the
pre-construction meeting and one week prior to the commencement of
land-disturbing activity.
5. The department shall conduct random inspections of the
project to ensure compliance with the state permit.
6. The department shall require inspections and reports from
the state agency responsible for compliance with the state permit and to
determine if the measures required in the state permit provide effective
stormwater management.
C. Compliance with the state permit shall be subject
to the following conditions:
1. Where inspection by the responsible state agency reveals
deficiencies in carrying out a permitted activity, the responsible state agency
shall ensure compliance with the issued state permit, state
permit conditions, and plan specifications.
2. Where inspections by department personnel reveal
deficiencies in carrying out the state permit, the responsible state
agency shall be issued a notice to comply, with corrective actions specified
and the deadline within which the work shall be performed.
3. Whenever the Commonwealth or any of its agencies fail to
comply within the time provided in a notice to comply, the director may
petition the secretary of a given secretariat or an agency head for a given
state agency for compliance. Where the petition does not achieve timely
compliance, the director shall bring the matter to the Governor for resolution.
4. Where compliance will require the appropriation of funds,
the director shall cooperate with the appropriate agency head in seeking such
an appropriation; where the director determines that an emergency exists, he
shall petition the Governor for funds from the Civil Contingency Fund or other
appropriate source.
5. The department may also seek compliance through other means
specified in the Act and this chapter.
4VAC50-60-200. Administrative procedures: maintenance and
inspections.
A. Responsibility for the operation and maintenance of
stormwater management facilities shall remain with the state agency and shall
pass to any successor or owner. If portions of the land are to be sold, legally
binding arrangements shall be made to pass the basic responsibility to
successors in title. These arrangements shall designate for each state project
the property owner, governmental agency, or other legally established entity to
be permanently responsible for maintenance.
B. At a minimum, a stormwater management facility shall be
inspected by the responsible state agency on an annual basis and after any
storm which causes the capacity of the facility principal spillway to be
exceeded.
C. During construction of the stormwater management
facilities, the department shall make inspections on a random basis.
D. The department shall require inspections and reports from
the state agency responsible for ensuring compliance with the state
permit and to determine if the measures required in the state permit
provide effective stormwater management.
E. Inspection reports shall be maintained as part of the land
disturbance project file.
Part V
Reporting
4VAC50-60-210. Reporting on stormwater management.
Local governments delegated authority for the
implementation of the stormwater management program and state State
agencies shall report annually, on a schedule to be specified, to the
department on the extent to which stormwater management programs have reduced
nonpoint source pollution to the Commonwealth's waters and mitigated the
effects of localized flooding. The report shall provide the following: data on
the number and types of stormwater management facilities installed in the
preceding year, the drainage area or watershed size served, the receiving
stream or hydrologic unit, a summary of monitoring data, if any, and other data
useful in determining the effectiveness of the programs and BMP technologies in
current use. VSMP authorities shall report in accordance with 4VAC50-60-126.
Part VI
VSMP General Program Requirements Related to MS4s and Land-Disturbing
Activities
4VAC50-60-300. Exclusions.
The following discharges do not require VSMP state
permits:
1. Any discharge of sewage from vessels, effluent from
properly functioning marine engines, laundry, shower, and galley sink wastes,
or any other discharge incidental to the normal operation of a vessel. This
exclusion does not apply to rubbish, trash, garbage, or other such materials
discharged overboard; nor to other discharges when the vessel is operating in a
capacity other than as a means of transportation such as when used as an energy
or mining facility, a storage facility or a seafood processing facility, or
when secured to a storage facility or a seafood processing facility, or when
secured to the bed of the ocean, contiguous zone or surface waters for the
purpose of mineral or oil exploration or development.
2. Discharges of dredged or fill material into surface waters
that are regulated under § 404 of the CWA.
3. The introduction of sewage, industrial wastes or other
pollutants into publicly owned treatment works by indirect dischargers. Plans
or agreements to switch to this method of disposal in the future do not relieve
dischargers of the obligation to have and comply with state permits
until all discharges of pollutants to surface waters are eliminated. This
exclusion does not apply to the introduction of pollutants to privately owned
treatment works or to other discharges through pipes, sewers, or other
conveyances owned by a state, municipality, or other party not leading to
treatment works.
4. Any discharge in compliance with the instructions of an
on-scene coordinator pursuant to 40 CFR Part 300 (2000) (The National Oil and
Hazardous Substances Pollution Contingency Plan) or 33 CFR 153.10(e) (2000)
(Pollution by Oil and Hazardous Substances).
5. Any introduction of pollutants from nonpoint source
agricultural and silvicultural activities, including stormwater runoff from
orchards, cultivated crops, pastures, range lands, and forest lands, but not
discharges from concentrated animal feeding operations, discharges from
concentrated aquatic animal production facilities, discharges to aquaculture
projects, and discharges from silvicultural point sources.
6. Return flows from irrigated agriculture.
7. Discharges into a privately owned treatment works, except
as the State Water Control Board may otherwise require.
4VAC50-60-310. Prohibitions.
A. Except in compliance with a VSMP state
permit issued by the board pursuant to Article 1.1 (§ 10.1-603.1 et seq.)
of Chapter 6 of Title 10.1 of the Code of Virginia, it shall be unlawful for
any person to discharge stormwater into state waters from Municipal Separate
Storm Sewer Systems or land-disturbing activities.
B. Any person in violation of subsection A of this section,
who discharges or causes or allows a discharge of stormwater into or upon state
waters from Municipal Separate Storm Sewer Systems or land-disturbing
activities, or who discharges or causes or allows a discharge that may
reasonably be expected to enter state waters in violation of subsection A of
this section, shall notify the department of the discharge immediately upon
discovery of the discharge but in no case later than 24 hours after said
discovery. A written report of the unauthorized discharge shall be submitted by
the owner, to the department, within five days of discovery of the discharge.
The written report shall contain:
1. A description of the nature and location of the discharge;
2. The cause of the discharge;
3. The date on which the discharge occurred;
4. The length of time that the discharge continued;
5. The volume of the discharge;
6. If the discharge is continuing, how long it is expected to
continue;
7. If the discharge is continuing, what the expected total
volume of the discharge will be; and
8. Any steps planned or taken to reduce, eliminate and prevent
a recurrence of the present discharge or any future discharges not authorized
by the state permit.
C. No state permit may be issued:
1. When the conditions of the state permit do not
provide for compliance with the applicable requirements of the CWA or the Act,
or regulations promulgated under the CWA or the Act;
2. When the state permit applicant is required to
obtain a state or other appropriate certification under § 401 of the CWA
and that certification has not been obtained or waived;
3. When the regional administrator has objected to issuance of
the state permit;
4. When the imposition of conditions cannot ensure compliance
with the applicable water quality requirements of all affected states;
5. When, in the judgment of the Secretary of the Army,
anchorage and navigation in or on any of the waters of the United States would
be substantially impaired by the discharge;
6. For the discharge of any radiological, chemical, or
biological warfare agent or high-level radioactive waste;
7. For any discharge inconsistent with a plan or plan
amendment approved under § 208(b) of the CWA;
8. For any discharge to the territorial sea, the waters of the
contiguous zone, or the oceans in the following circumstances:
a. Before the promulgation of guidelines under § 403(c)
of the CWA (for determining degradation of the waters of the territorial seas,
the contiguous zone, and the oceans) unless the board determines state
permit issuance to be in the public interest; or
b. After promulgation of guidelines under § 403(c) of the
CWA, when insufficient information exists to make a reasonable judgment whether
the discharge complies with them.
9. To a new source or a new discharger, if the discharge from
its construction or operation will cause or contribute to the violation of
water quality standards. The owner or operator of a new source or new
discharger proposing to discharge into a water segment which does not meet
applicable water quality standards or is not expected to meet those standards
even after the application of the effluent limitations required by the Act and
§§ 301(b)(1)(A) and 301(b)(1)(B) of the CWA, and for which the department
has performed a pollutants load allocation for the pollutant to be discharged,
must demonstrate, before the close of the public comment period, that:
a. There are sufficient remaining pollutant load allocations
to allow for the discharge; and
b. The existing dischargers into that segment are subject to
compliance schedules designed to bring the segment into compliance with
applicable water quality standards. The board may waive the submission of
information by the new source or new discharger required by this subdivision if
the board determines that it already has adequate information to evaluate the
request. An explanation of the development of limitations to meet the criteria
of this paragraph is to be included in the fact sheet to the state
permit under 4VAC50-60-520.
4VAC50-60-320. Effect of a state permit.
A. Except for any toxic effluent standards and prohibitions
imposed under § 307 of the CWA and standards for sewage sludge use or
disposal under § 405(d) of the CWA, compliance with a state permit
during its term constitutes compliance, for purposes of enforcement, with the
Act and with §§ 301, 302, 306, 307, 318, 403, and 405 (a) through (b) of the
CWA. However, a state permit may be modified, revoked and reissued, or
terminated during its term for cause as set forth in this chapter.
B. The issuance of a state permit does not convey any
property rights of any sort, or any exclusive privilege.
C. The issuance of a state permit does not authorize
any injury to persons or property or invasion of other private rights, or any
infringement of state or local law or regulations.
4VAC50-60-330. Continuation of expiring state permits.
A. The state permit shall expire at the end of its
term, except that the conditions of an expired state permit continue in
force until the effective date of a new state permit if:
1. The permittee has submitted a timely application as
required by this chapter, which is a complete application for a new state
permit; and
2. The board, through no fault of the permittee, does not
issue a new state with an effective date on or before the expiration date
of the previous state permit.
B. Permits State permits continued under this
section remain fully effective and enforceable.
C. When the permittee is not in compliance with the
conditions of the expiring or expired state permit the board may choose
to do any or all of the following:
1. Initiate enforcement action based upon the state
permit which has been continued;
2. Issue a notice of intent to deny the new state
permit. If the state permit is denied, the owner or operator would then
be required to cease the activities authorized by the continued state
permit or be subject to enforcement action for operating without a state
permit;
3. Issue a new state permit with appropriate
conditions; or
4. Take other actions authorized by this chapter.
4VAC50-60-340. Confidentiality of information.
A. The board, the department, or the permit-issuing VSMP
authority may require every state permit applicant or state
permittee to furnish when requested such application materials, plans,
specifications, and other pertinent information as may be necessary to
determine the effect of his discharge on the quality of state waters, or such
other information as may be necessary to accomplish the purposes of the Act and
this chapter. Any personal information shall not be disclosed except to an
appropriate official of the board, department, or permit-issuing VSMP
authority or as may be authorized pursuant to the Virginia Freedom of
Information Act (§ 2.2-3700 et seq. of the Code of Virginia). However:
1. Disclosure of records of the department, the board, or the permit-issuing
VSMP authority relating to (i) active federal environmental enforcement
actions that are considered confidential under federal law and (ii) enforcement
strategies, including proposed sanctions for enforcement actions is prohibited.
Upon request, such records shall be disclosed after a proposed sanction
resulting from the investigation has been determined by the department, the
board, or the permit-issuing VSMP authority.
2. Any secret formula, secret processes, or secret methods
other than effluent data submitted to the department pursuant to this chapter
may be claimed as confidential by the submitter in accordance with 40 CFR 122.7
(2000). Any such claim must be asserted at the time of submission in the manner
prescribed on the application form or instructions or, in the case of other
submissions, by stamping the words "secret formulae," "secret
processes" "secret methods" on each page containing such
information. If no claim is made at the time of submission, the department may
make the information available to the public without further notice. If a claim
is asserted, the information will be treated in accordance with the procedures
in the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code
of Virginia).
3. This section shall not be construed to prohibit the
disclosure of records related to inspection reports, notices of violation, and
documents detailing the nature of any land-disturbing activity that may have
occurred, or similar documents.
B. Claims of confidentiality for the following information
will be denied:
1. The name and address of any state permit applicant
or state permittee;
2. Permit State permit applications, state
permits, and effluent data.
C. Information required by VSMP state permit application
forms provided by the department may not be claimed confidential. This includes
information submitted on the forms themselves and any attachments used to
supply information required by the forms.
4VAC50-60-350. Guidance documents.
The board may develop and use guidance, as appropriate, to
implement technical and regulatory details of the VSMP state
permit program. Such guidance is distinguished from regulation by the fact that
it is not binding on either the board or permittees. If a more appropriate
methodology than that called for in guidance is available in a given situation,
the more appropriate methodology shall be used to the extent it is consistent
with applicable regulations and the Stormwater Management Act.
Part VII
VSMP State Permit Applications
4VAC50-60-360. Application for a state permit.
A. Duty to apply. Any person who discharges or proposes to
discharge stormwater into or upon state waters from Municipal Separate Storm
Sewer Systems or land-disturbing activities and who does not have an effective state
permit, except persons covered by general permits, excluded from the
requirement for a state permit by this chapter, shall submit a complete
application to the department in accordance with this section.
B. Who applies. When a facility or activity is owned by one
person but is operated by another person, it is the operator's duty to obtain a
state permit.
C. Time to apply. Any person proposing a new discharge, shall
submit an application at least 180 days before the date on which the discharge
is to commence, unless permission for a later date has been granted by the
board. Stormwater discharges from large construction activities and stormwater
discharges associated with small construction activities shall submit
applications at least 90 days before the date on which construction is to
commence. Different submittal dates may be required under the terms of
applicable general permits. Persons proposing a new discharge are encouraged to
submit their applications well in advance of the 90- or 180- day requirements
to avoid delay.
D. Duty to reapply. All state permittees with a
currently effective state permit shall submit a new application at least
180 days before the expiration date of the existing state permit unless
permission for a later date has been granted by the board. The board shall not
grant permission for applications to be submitted later than the expiration
date of the existing state permit.
E. Completeness. The board shall not issue a state
permit before receiving a complete application for a state permit except
for VSMP general permits. An application for a state permit is
complete when the board receives an application form and any supplemental
information which are completed to its satisfaction. The completeness of any
application for a state permit shall be judged independently of the
status of any other state permit application or state permit for
the same facility or activity.
F. Information requirements. All applicants for VSMP state
permits shall provide the following information to the department using
the application form provided by the department.
1. The activities conducted by the state permit
applicant which require it to obtain a VSMP state permit;
2. Name, mailing address, and location of the facility for
which the application is submitted;
3. Up to four SIC codes which best reflect the principal
products or services provided by the facility;
4. The operator's name, address, telephone number, ownership
status, and status as federal, state, private, public, or other entity;
5. Whether the facility is located on Indian lands;
6. A listing of all permits or construction approvals received
or applied for under any of the following programs:
a. Hazardous Waste Management program under RCRA (42 USC §
6921);
b. UIC program under SDWA (42 USC § 300h);
c. VPDES program under the CWA and the State Water Control
Law;
d. Prevention of Significant Deterioration (PSD) program under
the Clean Air Act (42 USC § 4701 et seq.);
e. Nonattainment program under the Clean Air Act (42 USC
§ 4701 et seq.);
f. National Emission Standards for Hazardous Pollutants
(NESHAPS) preconstruction approval under the Clean Air Act (42 USC § 4701 et
seq.);
g. Ocean dumping permits under the Marine Protection Research
and Sanctuaries Act (33 USC § 14 et seq.);
h. Dredge or fill permits under § 404 of the CWA;
i. VSMP program A state permit under the CWA and
the Virginia Stormwater Management Act; and
j. Other relevant environmental permits, including state
permits.
7. A topographic map (or other map if a topographic map is
unavailable) extending one mile beyond the property boundaries of the source,
which depicts: the facility and (i) each of its intake and discharge
structures; (ii) each of its hazardous waste treatment, storage, or disposal
facilities; (iii) each well where fluids from the facility are injected
underground; and (iv) those wells, springs, other surface water bodies, and
drinking water wells listed in public records or otherwise known to the state
permit applicant in the map area; and
8. A brief description of the nature of the business.
G. Variance requests. A discharger which is not a publicly
owned treatment works (POTW) may request a variance from otherwise applicable
effluent limitations under any of the following statutory or regulatory
provisions within the times specified in this subsection:
1. Fundamentally different factors.
a. A request for a variance based on the presence of fundamentally
different factors from those on which the effluent limitations guideline was
based shall be filed as follows:
(1) For a request from best practicable control technology
currently available (BPT), by the close of the public comment period for the
draft state permit; or
(2) For a request from best available technology economically
achievable (BAT) and/or best conventional pollutant control technology (BCT),
by no later than 180 days after the date on which an effluent limitation
guideline is published in the Federal Register for a request based on an
effluent limitation guideline promulgated on or after February 4, 1987.
b. The request shall explain how the requirements of the
applicable regulatory or statutory criteria have been met.
2. A request for a variance from the BAT requirements for CWA
§ 301(b)(2)(F) pollutants (commonly called nonconventional pollutants)
pursuant to § 301(c) of the CWA because of the economic capability of the owner
or operator, or pursuant to § 301(g) of the CWA (provided, however, that a §
301(g) variance may only be requested for ammonia, chlorine, color, iron, total
phenols (when determined by the administrator to be a pollutant covered by §
301(b)(2)(F) of the CWA) and any other pollutant that the administrator lists
under § 301(g)(4) of the CWA) must be made as follows:
a. For those requests for a variance from an effluent
limitation based upon an effluent limitation guideline by:
(1) Submitting an initial request to the regional
administrator, as well as to the department, stating the name of the
discharger, the state permit number, the outfall number(s), the
applicable effluent guideline, and whether the discharger is requesting a § 301(c)
or § 301(g) of the CWA modification, or both. This request must have been
filed not later than 270 days after promulgation of an applicable effluent
limitation guideline; and
(2) Submitting a completed request no later than the close of
the public comment period for the draft state permit demonstrating that:
(i) all reasonable ascertainable issues have been raised and all reasonably
available arguments and materials supporting their position have been
submitted; and (ii) that the applicable requirements of 40 CFR Part 125 (2000)
have been met. Notwithstanding this provision, the complete application for a
request under § 301(g) of the CWA shall be filed 180 days before EPA must make
a decision (unless the Regional Administrator establishes a shorter or longer
period); or
b. For those requests for a variance from effluent limitations
not based on effluent limitation guidelines, the request need only comply with
subdivision 2 a (2) of this subsection and need not be preceded by an initial
request under subdivision 2 a (1) of this subsection.
3. A modification under § 302(b)(2) of the CWA of
requirements under § 302(a) of the CWA for achieving water quality related
effluent limitations may be requested no later than the close of the public
comment period for the draft state permit on the state permit
from which the modification is sought.
4. A variance for alternate effluent limitations for the
thermal component of any discharge must be filed with a timely application for
a state permit under this section, except that if thermal effluent limitations
are established on a case-by-case basis or are based on water quality standards
the request for a variance may be filed by the close of the public comment
period for the draft state permit. A copy of the request shall be sent
simultaneously to the department.
H. Expedited variance procedures and time extensions.
1. Notwithstanding the time requirements in subsection G of
this section, the board may notify a state permit applicant before a
draft state permit is issued that the draft state permit will
likely contain limitations which are eligible for variances. In the notice the
board may require the state permit applicant as a condition of
consideration of any potential variance request to submit a request explaining
how the requirements of 40 CFR Part 125 (2000) applicable to the variance have
been met and may require its submission within a specified reasonable time
after receipt of the notice. The notice may be sent before the state
permit application has been submitted. The draft or final state permit
may contain the alternative limitations which may become effective upon final
grant of the variance.
2. A discharger who cannot file a timely complete request
required under subdivisions G 2 a (2) or G 2 b of this section may request an
extension. The extension may be granted or denied at the discretion of the
board. Extensions shall be no more than six months in duration.
I. Recordkeeping. Permit State permit
applicants shall keep records of all data used to complete state permit
applications and any supplemental information submitted under this section for
a period of at least three years from the date the application is signed.
4VAC50-60-370. Signatories to state permit applications
and reports.
A. All state permit applications shall be signed as
follows:
1. For a corporation: by a responsible corporate officer. For
the purpose of this section, a responsible corporate officer means: (i) a
president, secretary, treasurer, or vice-president of the corporation in charge
of a principal business function, or any other person who performs similar
policy-making or decision-making functions for the corporation, or (ii) the
manager of one or more manufacturing, production, or operating facilities,
provided the manager is authorized to make management decisions that govern the
operation of the regulated facility, including having the explicit or implicit
duty of making major capital investment recommendations, and initiating and
directing other comprehensive measures to assure long-term environmental compliance
with environmental laws and regulations; the manager can ensure that the
necessary systems are established or actions taken to gather complete and
accurate information for state permit application requirements; and
where authority to sign documents has been assigned or delegated to the manager
in accordance with corporate procedures;
2. For a partnership or sole proprietorship: by a general
partner or the proprietor, respectively; or
3. For a municipality, state, federal, or other public agency:
by either a principal executive officer or ranking elected official. For
purposes of this section, a principal executive officer of a federal agency
includes (i) the chief executive officer of the agency, or (ii) a senior
executive officer having responsibility for the overall operations of a
principal geographic unit of the agency.
B. All reports required by state permits, and other
information requested by the board shall be signed by a person described in
subsection A of this section, or by a duly authorized representative of that
person. A person is a duly authorized representative only if:
1. The authorization is made in writing by a person described
in subsection A of this section;
2. The authorization specifies either an individual or a
position having responsibility for the overall operation of the regulated
facility or activity such as the position of plant manager, operator of a well
or a well field, superintendent, position of equivalent responsibility, or an
individual or position having overall responsibility for environmental matters
for the company. A duly authorized representative may thus be either a named
individual or any individual occupying a named position; and
3. The written authorization is submitted to the department.
C. If an authorization under subsection B of this section is
no longer accurate because a different individual or position has
responsibility for the overall operation of the facility, a new authorization satisfying
the requirements of subsection B of this section must be submitted to the
department prior to or together with any reports, or information to be signed
by an authorized representative.
D. Any person signing a document under subsection A or B of
this section shall make the following certification:
"I certify under penalty of law that this document and
all attachments were prepared under my direction or supervision in accordance
with a system designed to assure that qualified personnel properly gather and
evaluate the information submitted. Based on my inquiry of the person or
persons who manage the system, or those persons directly responsible for
gathering the information, the information submitted is, to the best of my
knowledge and belief, true, accurate, and complete. I am aware that there are
significant penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations."
4VAC50-60-380. Stormwater discharges.
A. Permit State permit requirements.
1. Prior to October 1, 1994, discharges composed entirely of
stormwater shall not be required to obtain a VSMP state permit
except:
a. A discharge with respect to which a state permit has
been issued prior to February 4, 1987;
b. A stormwater discharge associated with large construction
activity;
c. A discharge from a large municipal separate storm sewer
system;
d. A discharge from a medium municipal separate storm sewer
system; or
e. A discharge that either the board or the regional
administrator determines to contribute to a violation of a water quality
standard or is a significant contributor of pollutants to surface waters. This
designation may include a discharge from any conveyance or system of
conveyances used for collecting and conveying stormwater runoff or a system of
discharges from municipal separate storm sewers, except for those discharges
from conveyances that do not require a state permit under subdivision 2
of this subsection or agricultural stormwater runoff that is exempted from the
definition of point source.
The board may designate discharges from municipal separate
storm sewers on a system-wide or jurisdiction-wide basis. In making this
determination the board may consider the following factors:
(1) The location of the discharge with respect to surface
waters;
(2) The size of the discharge;
(3) The quantity and nature of the pollutants discharged to
surface waters; and
(4) Other relevant factors.
2. The board may not require a state permit for
discharges of stormwater runoff from mining operations or oil and gas
exploration, production, processing or treatment operations, or transmission
facilities, composed entirely of flows that are from conveyances or systems of
conveyances (including but not limited to pipes, conduits, ditches, and
channels) used for collecting and conveying precipitation runoff and that are
not contaminated by contact with or that has not come into contact with, any
overburden, raw material, intermediate products, finished product, by-product
or waste products located on the site of such operations.
3. a. Permits State permits must be obtained for
all discharges from large and medium municipal separate storm sewer systems.
b. The board may either issue one system-wide state
permit covering all discharges from municipal separate storm sewers within a
large or medium municipal storm sewer system or issue distinct state
permits for appropriate categories of discharges within a large or medium
municipal separate storm sewer system including, but not limited to: all
discharges owned or operated by the same municipality; located within the same
jurisdiction; all discharges within a system that discharge to the same
watershed; discharges within a system that are similar in nature; or for
individual discharges from municipal separate storm sewers within the system.
c. The operator of a discharge from a municipal separate storm
sewer that is part of a large or medium municipal separate storm sewer system
must either:
(1) Participate in a state permit application (to be a state
permittee or a state co-permittee) with one or more other operators of
discharges from the large or medium municipal storm sewer system that covers
all, or a portion of all, discharges from the municipal separate storm sewer
system;
(2) Submit a distinct state permit application that
only covers discharges from the municipal separate storm sewers for which the
operator is responsible; or
(3) A regional authority may be responsible for submitting a state
permit application under the following guidelines:
(a) The regional authority together with state permit
co-applicants shall have authority over a stormwater management program that is
in existence, or shall be in existence at the time Part 1 of the application is
due;
(b) The state permit applicant or co-applicants shall
establish their ability to make a timely submission of Part 1 and Part 2 of the
municipal application;
(c) Each of the operators of municipal separate storm sewers
within large or medium municipal separate storm sewer systems, that are under
the purview of the designated regional authority, shall comply with the
application requirements of subsection C of this section.
d. One state permit application may be submitted for
all or a portion of all municipal separate storm sewers within adjacent or
interconnected large or medium municipal separate storm sewer systems. The
board may issue one system-wide state permit covering all, or a portion
of all municipal separate storm sewers in adjacent or interconnected large or medium
municipal separate storm sewer systems.
e. Permits State permits for all or a portion of
all discharges from large or medium municipal separate storm sewer systems that
are issued on a system-wide, jurisdiction-wide, watershed or other basis may
specify different conditions relating to different discharges covered by the state
permit, including different management programs for different drainage
areas that contribute stormwater to the system.
f. Co-permittees State co-permittees need only
comply with state permit conditions relating to discharges from the
municipal separate storm sewers for which they are operators.
4. In addition to meeting the requirements of subsection B of
this section, an operator of a stormwater discharge associated with a large
construction activity that discharges through a large or medium municipal
separate storm sewer system shall submit to the operator of the municipal
separate storm sewer system receiving the discharge no later than May 15, 1991,
or 180 days prior to commencing such discharge: the name of the facility; a
contact person and phone number; the location of the discharge; a description,
including Standard Industrial Classification, that best reflects the principal
products or services provided by each facility; and any existing VSMP state
permit number.
5. The board may issue state permits for municipal
separate storm sewers that are designated under subdivision A 1 e of this
section on a system-wide basis, jurisdiction-wide basis, watershed basis or
other appropriate basis, or may issue state permits for individual
discharges.
6. Conveyances that discharge stormwater runoff combined with
municipal sewage are point sources that must obtain VPDES permits in accordance
with the procedures of 4VAC50-60-360 and are not subject to the provisions of
this section.
7. Whether a discharge from a municipal separate storm sewer
is or is not subject to regulation under this subsection shall have no bearing
on whether the owner or operator of the discharge is eligible for funding under
Title II, Title III or Title VI of the CWA.
8. a. On and after October 1, 1994, for discharges composed
entirely of stormwater, that are not required by subdivision 1 of this
subsection to obtain a state permit, operators shall be required to
obtain a VSMP state permit only if:
(1) The discharge is from a small MS4 required to be regulated
pursuant to 4VAC50-60-400 B;
(2) The discharge is a stormwater discharge associated with
small construction activity as defined in 4VAC50-60-10;
(3) The board or the EPA regional administrator determines
that stormwater controls are needed for the discharge based on wasteload
allocations that are part of "total maximum daily loads" (TMDLs) that
address the pollutant(s) of concern; or
(4) The board or the EPA regional administrator determines
that the discharge, or category of discharges within a geographic area,
contributes to a violation of a water quality standard or is a significant
contributor of pollutants to surface waters.
b. Operators of small MS4s designated pursuant to subdivisions
8 a (1), (3), and (4) of this subsection shall seek coverage under a VSMP
state permit in accordance with 4VAC50-60-400 C through E. Operators of
nonmunicipal sources designated pursuant to subdivisions 8 a (2), (3), and (4)
of this subsection shall seek coverage under a VSMP state permit
in accordance with subdivision B 1 of this section.
c. Operators of stormwater discharges designated pursuant to
subdivisions 8 a (3) and (4) of this subsection shall apply to the board for a state
permit within 180 days of receipt of notice, unless permission for a later date
is granted by the board.
B. Application requirements for stormwater discharges
associated with large and small construction activity.
1. Dischargers of stormwater associated with large and small
construction activity are required to apply for an individual state
permit or seek coverage under a promulgated stormwater general permit.
Facilities that are required to obtain an individual state permit, or
any discharge of stormwater that the board is evaluating for designation under
subdivision A 1 e of this section and is not a municipal separate storm sewer,
shall submit a VSMP state application in accordance with the
requirements of 4VAC50-60-360 as modified and supplemented by the provisions of
this subsection.
a. The operator of an existing or new stormwater discharge
that is associated with a large or small construction activity shall provide a
narrative description of:
(1) The location (including a map) and the nature of the
construction activity;
(2) The total area of the site and the area of the site that
is expected to undergo excavation during the life of the state permit;
(3) Proposed measures, including best management practices, to
control pollutants in stormwater discharges during construction, including a
brief description of applicable state and local erosion and sediment control
VESCP requirements;
(4) Proposed measures to control pollutants in stormwater
discharges that will occur after construction operations have been completed,
including a brief description of applicable state or local erosion and
sediment control VESCP requirements;
(5) An estimate of the runoff coefficient of the site and the
increase in impervious area after the construction addressed in the state
permit application is completed, the nature of fill material and existing data
describing the soil or the quality of the discharge; and
(6) The name of the receiving water.
(7) Location of Chesapeake Bay Preservation Areas.
b. Permit State permit applicants shall provide
such other information the board may reasonably require to determine whether to
issue a state permit.
C. Application requirements for large and medium municipal
separate storm sewer discharges. The operator of a discharge from a large or
medium municipal separate storm sewer or a municipal separate storm sewer that
is designated by the board under subdivision A 1 e of this section, may submit
a jurisdiction-wide or system-wide state permit application. Where more
than one public entity owns or operates a municipal separate storm sewer within
a geographic area (including adjacent or interconnected municipal separate
storm sewer systems), such operators may be a state permit coapplicant
to the same application. Permit State permit applications for
discharges from large and medium municipal storm sewers or municipal storm
sewers designated under subdivision A 1 e of this section shall include;
1. Part 1 of the application shall consist of:
a. The state permit applicants' name, address,
telephone number of contact person, ownership status, and status as a state or
local government entity;
b. A description of existing legal authority to control
discharges to the municipal separate storm sewer system. When existing legal
authority is not sufficient to meet the criteria provided in subdivision 2 a of
this subsection, the description shall list additional authorities as will be
necessary to meet the criteria and shall include a schedule and commitment to
seek such additional authority that will be needed to meet the criteria;
c. Source identification.
(1) A description of the historic use of ordinances, guidance
or other controls that limited the discharge of nonstormwater discharges to any
publicly owned treatment works serving the same area as the municipal separate
storm sewer system.
(2) A USGS 7.5 minute topographic map (or equivalent
topographic map with a scale between 1:10,000 and 1:24,000, if cost effective)
extending one mile beyond the service boundaries of the municipal storm sewer
system covered by the state permit application. The following
information shall be provided:
(a) The location of known municipal storm sewer system
outfalls discharging to surface waters;
(b) A description of the land use activities (e.g., divisions
indicating undeveloped, residential, commercial, agricultural, and industrial
uses) accompanied with estimates of population densities and projected growth
for a 10-year period within the drainage area served by the separate storm
sewer. For each land use type, an estimate of an average runoff coefficient
shall be provided;
(c) The location and a description of the activities of the
facility of each currently operating or closed municipal landfill or other
treatment, storage or disposal facility for municipal waste;
(d) The location and the state permit number of any
known discharge to the municipal storm sewer that has been issued a VSMP
state permit;
(e) The location of major structural controls for stormwater
discharge (retention basins, detention basins, major infiltration devices,
etc.); and
(f) The identification of publicly owned parks, recreational
areas, and other open lands;
d. Discharge characterization.
(1) Monthly mean rain and snow fall estimates (or summary of
weather bureau data) and the monthly average number of storm events.
(2) Existing quantitative data describing the volume and
quality of discharges from the municipal storm sewer, including a description
of the outfalls sampled, sampling procedures and analytical methods used.
(3) A list of water bodies that receive discharges from the
municipal separate storm sewer system, including downstream segments, lakes and
estuaries, where pollutants from the system discharges may accumulate and cause
water degradation and a brief description of known water quality impacts. At a
minimum, the description of impacts shall include a description of whether the
water bodies receiving such discharges have been:
(a) Assessed and reported in § 305(b) of the CWA reports
submitted by the state, the basis for the assessment (evaluated or monitored),
a summary of designated use support and attainment of the State Water Control
Law and the CWA goals (fishable and swimmable waters), and causes of nonsupport
of designated uses;
(b) Listed under §§ 304(l)(1)(A)(i), 304(l)(1)(A)(ii), or § 304(l)(1)(B)
of the CWA that is not expected to meet water quality standards or water
quality goals;
(c) Listed in State Nonpoint Source Assessments required by §
319(a) of the CWA that, without additional action to control nonpoint sources
of pollution, cannot reasonably be expected to attain or maintain water quality
standards due to storm sewers, construction, highway maintenance and runoff
from municipal landfills and municipal sludge adding significant pollution (or
contributing to a violation of water quality standards);
(d) Identified and classified according to eutrophic condition
of publicly owned lakes listed in state reports required under § 314(a) of
the CWA (include the following: A description of those publicly owned lakes for
which uses are known to be impaired; a description of procedures, processes and
methods to control the discharge of pollutants from municipal separate storm
sewers into such lakes; and a description of methods and procedures to restore
the quality of such lakes);
(e) Areas of concern of the Great Lakes identified by the
International Joint Commission;
(f) Designated estuaries under the National Estuary Program
under § 320 of the CWA;
(g) Recognized by the state permit applicant as highly
valued or sensitive waters;
(h) Defined by the state or U.S. Fish and Wildlife Service's
National Wetlands Inventory as wetlands; and
(i) Found to have pollutants in bottom sediments, fish tissue
or biosurvey data.
(4) Results of a field screening analysis for illicit
connections and illegal dumping for either selected field screening points or
major outfalls covered in the state permit application. At a minimum, a
screening analysis shall include a narrative description, for either each field
screening point or major outfall, of visual observations made during dry
weather periods. If any flow is observed, two grab samples shall be collected
during a 24-hour period with a minimum period of four hours between samples. For
all such samples, a narrative description of the color, odor, turbidity, the
presence of an oil sheen or surface scum as well as any other relevant
observations regarding the potential presence of nonstormwater discharges or
illegal dumping shall be provided. In addition, a narrative description of the
results of a field analysis using suitable methods to estimate pH, total
chlorine, total copper, total phenol, and detergents (or surfactants) shall be
provided along with a description of the flow rate. Where the field analysis
does not involve analytical methods approved under 40 CFR Part 136 (2000), the state
permit applicant shall provide a description of the method used including the
name of the manufacturer of the test method along with the range and accuracy
of the test. Field screening points shall be either major outfalls or other
outfall points (or any other point of access such as manholes) randomly located
throughout the storm sewer system by placing a grid over a drainage system map
and identifying those cells of the grid which contain a segment of the storm
sewer system or major outfall. The field screening points shall be established
using the following guidelines and criteria:
(a) A grid system consisting of perpendicular north-south and
east-west lines spaced 1/4 mile apart shall be overlayed on a map of the
municipal storm sewer system, creating a series of cells;
(b) All cells that contain a segment of the storm sewer system
shall be identified; one field screening point shall be selected in each cell;
major outfalls may be used as field screening points;
(c) Field screening points should be located downstream of any
sources of suspected illegal or illicit activity;
(d) Field screening points shall be located to the degree
practicable at the farthest manhole or other accessible location downstream in
the system, within each cell; however, safety of personnel and accessibility of
the location should be considered in making this determination;
(e) Hydrological conditions; total drainage area of the site;
population density of the site; traffic density; age of the structures or
buildings in the area; history of the area; and land use types;
(f) For medium municipal separate storm sewer systems, no more
than 250 cells need to have identified field screening points; in large
municipal separate storm sewer systems, no more than 500 cells need to have
identified field screening points; cells established by the grid that contain
no storm sewer segments will be eliminated from consideration; if fewer than
250 cells in medium municipal sewers are created, and fewer than 500 in large
systems are created by the overlay on the municipal sewer map, then all those
cells which contain a segment of the sewer system shall be subject to field
screening (unless access to the separate storm sewer system is impossible); and
(g) Large or medium municipal separate storm sewer systems
which are unable to utilize the procedures described in subdivisions 1 d (4)
(a) through (f) of this subsection, because a sufficiently detailed map of the
separate storm sewer systems is unavailable, shall field screen no more than
500 or 250 major outfalls respectively (or all major outfalls in the system, if
less); in such circumstances, the state permit applicant shall establish
a grid system consisting of north-south and east-west lines spaced 1/4 mile
apart as an overlay to the boundaries of the municipal storm sewer system,
thereby creating a series of cells; the state permit applicant will then
select major outfalls in as many cells as possible until at least 500 major
outfalls (large municipalities) or 250 major outfalls (medium municipalities)
are selected; a field screening analysis shall be undertaken at these major
outfalls.
(5) Information and a proposed program to meet the
requirements of subdivision 2 c of this subsection. Such description shall
include: the location of outfalls or field screening points appropriate for
representative data collection under subdivision 2 c (1) of this subsection, a
description of why the outfall or field screening point is representative, the
seasons during which sampling is intended, and a description of the sampling
equipment. The proposed location of outfalls or field screening points for such
sampling should reflect water quality concerns (see subdivision 1 d (3) of this
subsection) to the extent practicable;
e. Management programs.
(1) A description of the existing management programs to
control pollutants from the municipal separate storm sewer system. The
description shall provide information on existing structural and source
controls, including operation and maintenance measures for structural controls,
that are currently being implemented. Such controls may include, but are not
limited to, procedures to control pollution resulting from construction
activities, floodplain management controls, wetland protection measures, best
management practices for new subdivisions; and emergency spill response
programs. The description may address controls established under state law as
well as local requirements.
(2) A description of the existing program to identify illicit
connections to the municipal storm sewer system. The description should include
inspection procedures and methods for detecting and preventing illicit
discharges, and describe areas where this program has been implemented; and
f. Fiscal resources. A description of the financial resources
currently available to the municipality to complete Part 2 of the state
permit application. A description of the municipality's budget for existing
stormwater programs, including an overview of the municipality's financial
resources and budget, including overall indebtedness and assets, and sources of
funds for stormwater programs.
2. Part 2 of the application shall consist of:
a. A demonstration that the state permit applicant can
operate pursuant to legal authority established by statute, ordinance or series
of contracts that authorizes or enables the state permit applicant at a
minimum to:
(1) Control through ordinance, state permit, contract,
order or similar means, the contribution of pollutants to the municipal storm
sewer by stormwater discharges associated with industrial activity and the
quality of stormwater discharged from sites of industrial activity;
(2) Prohibit through ordinance, order or similar means,
illicit discharges to the municipal separate storm sewer;
(3) Control through ordinance, order or similar means the
discharge to a municipal separate storm sewer of spills, dumping or disposal of
materials other than stormwater;
(4) Control through interagency agreements among state
permit coapplicants the contribution of pollutants from one portion of the
municipal system to another portion of the municipal system;
(5) Require compliance with conditions in ordinances, state
permits, contracts or orders; an and
(6) Carry out all inspection, surveillance and monitoring
procedures necessary to determine compliance and noncompliance with state
permit conditions including the prohibition on illicit discharges to the
municipal separate storm sewer;
b. The location of any major outfall that discharges to
surface waters that was not reported under subdivision 1 c (2) (a) of this
subsection. Provide an inventory, organized by watershed of the name and
address, and a description (such as SIC codes) that best reflects the principal
products or services provided by each facility that may discharge, to the
municipal separate storm sewer, stormwater associated with industrial activity;
c. When quantitative data for a pollutant are required under
subdivision 2 c (1) (c) of this subsection, the state permit applicant
must collect a sample of effluent in accordance with 4VAC50-60-390 and analyze
it for the pollutant in accordance with analytical methods approved under 40
CFR Part 136 (2000). When no analytical method is approved the state
permit applicant may use any suitable method but must provide a description of
the method. The state permit applicant must provide information
characterizing the quality and quantity of discharges covered in the state
permit application, including:
(1) Quantitative data from representative outfalls designated
by the board (based on information received in Part 1 of the application, the
board shall designate between five and 10 outfalls or field screening points as
representative of the commercial, residential and industrial land use
activities of the drainage area contributing to the system or, where there are
less than five outfalls) covered in the application, the board shall designate
all outfalls developed as follows:
(a) For each outfall or field screening point designated under
this subsection, samples shall be collected of stormwater discharges from three
storm events occurring at least one month apart in accordance with the
requirements at 4VAC50-60-390 (the board may allow exemptions to sampling three
storm events when climatic conditions create good cause for such exemptions);
(b) A narrative description shall be provided of the date and
duration of the storm event or events sampled, rainfall estimates of the storm
event which generated the sampled discharge and the duration between the storm
event sampled and the end of the previous measurable (greater than 0.1 inch
rainfall) storm event;
(c) For samples collected and described under subdivisions 2 c
(1) (a) and (1) (b) of this subsection, quantitative data shall be provided
for: the organic pollutants listed in Table II; the pollutants listed in Table
III (toxic metals, cyanide, and total phenols) of 40 CFR Part 122 Appendix D
(2000), and for the following pollutants:
Total suspended solids (TSS)
Total dissolved solids (TDS)
COD
BOD5
Oil and grease
Fecal coliform
Fecal streptococcus
pH
Total Kjeldahl nitrogen
Nitrate plus nitrite
Dissolved phosphorus
Total ammonia plus organic nitrogen
Total phosphorus
(d) Additional limited quantitative data required by the board
for determining state permit conditions (the board may require that quantitative
data shall be provided for additional parameters, and may establish sampling
conditions such as the location, season of sample collection, form of
precipitation (snow melt, rainfall) and other parameters necessary to ensure
representativeness);
(2) Estimates of the annual pollutant load of the cumulative
discharges to surface waters from all identified municipal outfalls and the
event mean concentration of the cumulative discharges to surface waters from
all identified municipal outfalls during a storm event (as described under
4VAC50-60-390) for BOD5, COD, TSS, dissolved solids, total nitrogen,
total ammonia plus organic nitrogen, total phosphorus, dissolved phosphorus,
cadmium, copper, lead, and zinc. Estimates shall be accompanied by a description
of the procedures for estimating constituent loads and concentrations,
including any modeling, data analysis, and calculation methods;
(3) A proposed schedule to provide estimates for each major
outfall identified in either subdivision 2 b or 1 c (2) (a) of this subsection
of the seasonal pollutant load and of the event mean concentration of a
representative storm for any constituent detected in any sample required under
subdivision 2 c (1) of this subsection; and
(4) A proposed monitoring program for representative data
collection for the term of the state permit that describes the location
of outfalls or field screening points to be sampled (or the location of
instream stations), why the location is representative, the frequency of
sampling, parameters to be sampled, and a description of sampling equipment;
d. A proposed management program that covers the duration of
the state permit. It shall include a comprehensive planning process that
involves public participation and, where necessary, intergovernmental
coordination to reduce the discharge of pollutants to the maximum extent
practicable using management practices, control techniques and system, design
and engineering methods, and such other provisions that are appropriate. The
program shall also include a description of staff and equipment available to
implement the program. Separate proposed programs may be submitted by each state
permit coapplicant. Proposed programs may impose controls on a system wide
basis, a watershed basis, a jurisdiction basis, or on individual outfalls.
Proposed programs will be considered by the board when developing state
permit conditions to reduce pollutants in discharges to the maximum extent
practicable. Proposed management programs shall describe priorities for implementing
controls. Such programs shall be based on:
(1) A description of structural and source control measures to
reduce pollutants from runoff from commercial and residential areas that are
discharged from the municipal storm sewer system that are to be implemented
during the life of the state permit, accompanied with an estimate of the
expected reduction of pollutant loads and a proposed schedule for implementing
such controls. At a minimum, the description shall include:
(a) A description of maintenance activities and a maintenance
schedule for structural controls to reduce pollutants (including floatables) in
discharges from municipal separate storm sewers;
(b) A description of planning procedures including a
comprehensive master plan to develop, implement and enforce controls to reduce
the discharge of pollutants from municipal separate storm sewers which receive
discharges from areas of new development and significant redevelopment. Such
plan shall address controls to reduce pollutants in discharges from municipal
separate storm sewers after construction is completed. Controls to reduce
pollutants in discharges from municipal separate storm sewers containing
construction site runoff are addressed in subdivision 2 d (4) of this
subsection;
(c) A description of practices for operating and maintaining
public streets, roads and highways and procedures for reducing the impact on
receiving waters of discharges from municipal storm sewer systems, including
pollutants discharged as a result of deicing activities;
(d) A description of procedures to assure that flood
management projects assess the impacts on the water quality of receiving water
bodies and that existing structural flood control devices have been evaluated
to determine if retrofitting the device to provide additional pollutant removal
from stormwater is feasible;
(e) A description of a program to monitor pollutants in runoff
from operating or closed municipal landfills or other treatment, storage or
disposal facilities for municipal waste, which shall identify priorities and
procedures for inspections and establishing and implementing control measures
for such discharges (this program can be coordinated with the program developed
under subdivision 2 d (3) of this subsection); and
(f) A description of a program to reduce to the maximum extent
practicable, pollutants in discharges from municipal separate storm sewers
associated with the application of pesticides, herbicides and fertilizer that
will include, as appropriate, controls such as educational activities, permits,
certifications and other measures for commercial applicators and distributors,
and controls for application in public right-of-ways and at municipal
facilities;
(2) A description of a program, including a schedule, to
detect and remove (or require the discharger to the municipal separate storm
sewer to obtain a separate VSMP state permit for) illicit
discharges and improper disposal into the storm sewer. The proposed program
shall include:
(a) A description of a program, including inspections, to
implement and enforce an ordinance, orders or similar means to prevent illicit
discharges to the municipal separate storm sewer system; this program
description shall address all types of illicit discharges, however the
following category of nonstormwater discharges or flows shall be addressed
where such discharges are identified by the municipality as sources of
pollutants to surface waters: water line flushing, landscape irrigation,
diverted stream flows, rising groundwaters, uncontaminated groundwater
infiltration to separate storm sewers, uncontaminated pumped groundwater,
discharges from potable water sources, foundation drains, air conditioning
condensation, irrigation water, springs, water from crawl space pumps, footing
drains, lawn watering, individual residential car washing, flows from riparian
habitats and wetlands, dechlorinated swimming pool discharges, and street wash
water (program descriptions shall address discharges or flows from fire
fighting only where such discharges or flows are identified as significant
sources of pollutants to surface waters);
(b) A description of procedures to conduct on-going field
screening activities during the life of the state permit, including
areas or locations that will be evaluated by such field screens;
(c) A description of procedures to be followed to investigate
portions of the separate storm sewer system that, based on the results of the
field screen, or other appropriate information, indicate a reasonable potential
of containing illicit discharges or other sources of nonstormwater (such
procedures may include: sampling procedures for constituents such as fecal
coliform, fecal streptococcus, surfactants (Methylene Blue Active
Substances—MBAS), residual chlorine, fluorides and potassium; testing with
fluorometric dyes; or conducting in storm sewer inspections where safety and
other considerations allow. Such description shall include the location of
storm sewers that have been identified for such evaluation);
(d) A description of procedures to prevent, contain, and
respond to spills that may discharge into the municipal separate storm sewer;
(e) A description of a program to promote, publicize, and
facilitate public reporting of the presence of illicit discharges or water
quality impacts associated with discharges from municipal separate storm
sewers;
(f) A description of educational activities, public
information activities, and other appropriate activities to facilitate the
proper management and disposal of used oil and toxic materials; and
(g) A description of controls to limit infiltration of seepage
from municipal sanitary sewers to municipal separate storm sewer systems where
necessary;
(3) A description of a program to monitor and control
pollutants in stormwater discharges to municipal systems from municipal
landfills, hazardous waste treatment, disposal and recovery facilities, industrial
facilities that are subject to § 313 of Title III of the Superfund Amendments
and Reauthorization Act of 1986 (SARA, 42 USC § 11023), and industrial
facilities that the municipal permit applicant determines are contributing a
substantial pollutant loading to the municipal storm sewer system. The program
shall:
(a) Identify priorities and procedures for inspections and
establishing and implementing control measures for such discharges;
(b) Describe a monitoring program for stormwater discharges
associated with the industrial facilities identified in subdivision 2 d (3) of
this subsection, to be implemented during the term of the state permit,
including the submission of quantitative data on the following constituents:
any pollutants limited in effluent guidelines subcategories, where applicable;
any pollutant listed in an existing VPDES permit for a facility; oil and
grease, COD, pH, BOD5, TSS, total phosphorus, total Kjeldahl
nitrogen, nitrate plus nitrite nitrogen, and any information on discharges required
under 4VAC50-60-390 F and G; and
(4) A description of a program to implement and maintain
structural and nonstructural best management practices to reduce pollutants in
stormwater runoff from construction sites to the municipal storm sewer system,
which shall include:
(a) A description of procedures for site planning that
incorporate consideration of potential water quality impacts;
(b) A description of requirements for nonstructural and
structural best management practices;
(c) A description of procedures for identifying priorities for
inspecting sites and enforcing control measures that consider the nature of the
construction activity, topography, and the characteristics of soils and
receiving water quality; and
(d) A description of appropriate educational and training
measures for construction site operators;
e. Estimated reductions in loadings of pollutants from
discharges of municipal storm sewer constituents from municipal storm sewer
systems expected as the result of the municipal stormwater quality management
program. The assessment shall also identify known impacts of stormwater
controls on groundwater;
f. For each fiscal year to be covered by the state
permit, a fiscal analysis of the necessary capital and operation and
maintenance expenditures necessary to accomplish the activities of the programs
under subdivisions 2 c and d of this subsection. Such analysis shall include a
description of the source of funds that are proposed to meet the necessary
expenditures, including legal restrictions on the use of such funds;
g. Where more than one legal entity submits an application,
the application shall contain a description of the roles and responsibilities
of each legal entity and procedures to ensure effective coordination; and
h. Where requirements under subdivisions 1 d (5), 2 b, 2 c
(2), and 2 d of this subsection are not practicable or are not applicable, the
board may exclude any operator of a discharge from a municipal separate storm
sewer that is designated under subdivision A 1 e of this section, or that is
located in the counties listed in 40 CFR Part 122 Appendix H or Appendix I
(2000) (except municipal separate storm sewers that are located in the
incorporated places, townships or towns within such counties) from such
requirements. The board shall not exclude the operator of a discharge from a
municipal separate storm sewer identified in 40 CFR Part 122 Appendix F, G, H
or I (2000) from any of the state permit application requirements under
this subdivision except where authorized under this subsection.
D. Petitions.
1. Any operator of a municipal separate storm sewer system may
petition the appropriate authority, the Virginia Soil and Water Conservation
Board or the State Water Control Board, to require a separate state
permit for any discharge into the municipal separate storm sewer system.
2. Any person may petition the board to require a VSMP state
permit for a discharge which is composed entirely of stormwater which
contributes to a violation of a water quality standard or is a significant
contributor of pollutants to surface waters.
3. Any person may petition the board for the designation of a
large, medium or small municipal separate storm sewer system as defined by this
chapter.
4. The board shall make a final determination on any petition
received under this section within 90 days after receiving the petition with
the exception of petitions to designate a small MS4, in which case the board
shall make a final determination on the petition within 180 days after its
receipt.
4VAC50-60-390. Effluent sampling procedures.
VSMP State permit applicants for discharges
from large and small municipal storm sewers or municipal storm sewers
designated under 4VAC50-60-380 A 1 e shall provide the following information to
the department, using application forms provided by the department.
A. Information on stormwater discharges that is to be
provided as specified in 4VAC50-60-380. When quantitative data for a pollutant
are required, the state permit applicant must collect a sample of effluent
and analyze it for the pollutant in accordance with analytical methods approved
under 40 CFR Part 136 (2000). When no analytical method is approved the state
permit applicant may use any suitable method but must provide a description of
the method. When an a state permit applicant has two or more outfalls
with substantially identical effluents, the board may allow the state
permit applicant to test only one outfall and report that the quantitative
data also apply to the substantially identical outfalls. The requirements in e
and f of this subdivision that an a state permit applicant must
provide quantitative data for certain pollutants known or believed to be
present do not apply to pollutants present in a discharge solely as the result
of their presence in intake water; however, an applicant must report such
pollutants as present. Grab samples must be used for pH, temperature, cyanide,
total phenols, residual chlorine, oil and grease, fecal coliform, and fecal
streptococcus. For all other pollutants, 24-hour composite samples must be
used. However, a minimum of one grab sample may be taken for effluents from
holding ponds or other impoundments with a retention period greater than 24
hours. In addition, for discharges other than stormwater discharges, the board
may waive composite sampling for any outfall for which the state permit
applicant demonstrates that the use of an automatic sampler is infeasible and
that the minimum of four grab samples will be a representative sample of the
effluent being discharged.
B. For stormwater discharges, all samples shall be collected
from the discharge resulting from a storm event that is greater than 0.1 inch
and at least 72 hours from the previously measurable (greater than 0.1 inch
rainfall) storm event. Where feasible, the variance in the duration of the
event and the total rainfall of the event should not exceed 50% from the
average or median rainfall event in that area. For all state permit
applicants, a flow-weighted composite shall be taken for either the entire
discharge or for the first three hours of the discharge. The flow-weighted
composite sample for a stormwater discharge may be taken with a continuous
sampler or as a combination of a minimum of three sample aliquots taken in each
hour of discharge for the entire discharge or for the first three hours of the
discharge, with each aliquot being separated by a minimum period of 15 minutes.
However, a minimum of one grab sample may be taken for stormwater discharges
from holding ponds or other impoundments with a retention period greater than
24 hours. For a flow-weighted composite sample, only one analysis of the
composite of aliquots is required. For stormwater discharge samples taken from
discharges associated with industrial activities, quantitative data must be
reported for the grab sample taken during the first 30 minutes (or as soon
thereafter as practicable) of the discharge for all pollutants specified in
4VAC50-60-380 C 1. For all stormwater state permit applicants taking
flow-weighted composites, quantitative data must be reported for all pollutants
specified in 4VAC50-60-380 except pH, temperature, cyanide, total phenols,
residual chlorine, oil and grease, fecal coliform, and fecal streptococcus. The
board may allow or establish appropriate site-specific sampling procedures or
requirements, including sampling locations, the season in which the sampling
takes place, the minimum duration between the previous measurable storm event
and the storm event sampled, the minimum or maximum level of precipitation
required for an appropriate storm event, the form of precipitation sampled
(snow melt or rain fall), protocols for collecting samples under 40 CFR Part
136 (2000), and additional time for submitting data on a case-by-case basis. A state
permit applicant is expected to know or have reason to believe that a pollutant
is present in an effluent based on an evaluation of the expected use,
production, or storage of the pollutant, or on any previous analyses for the
pollutant. (For example, any pesticide manufactured by a facility may be
expected to be present in contaminated stormwater runoff from the facility.)
C. Every state permit applicant must report
quantitative data for every outfall for the following pollutants:
Biochemical oxygen demand (BOD5)
Chemical oxygen demand
Total organic carbon
Total suspended solids
Ammonia (as N)
Temperature (both winter and summer)
pH
D. The board may waive the reporting requirements for
individual point sources or for a particular industry category for one or more
of the pollutants listed in subsection C of this section if the state
permit applicant has demonstrated that such a waiver is appropriate because
information adequate to support issuance of a state permit can be
obtained with less stringent requirements.
E. Each state permit applicant with processes in one
or more primary industry category (see 40 CFR Part 122 Appendix A (2000))
contributing to a discharge must report quantitative data for the following
pollutants in each outfall containing process wastewater:
1. The organic toxic pollutants in the fractions designated in
Table I of 40 CFR Part 122 Appendix D (2000) for the state permit
applicant's industrial category or categories unless the state permit
applicant qualifies as a small business under subdivision 8 of this subsection.
Table II of 40 CFR Part 122 Appendix D (2000) lists the organic toxic
pollutants in each fraction. The fractions result from the sample preparation
required by the analytical procedure that uses gas chromatography/mass
spectrometry. A determination that a state permit applicant falls within
a particular industrial category for the purposes of selecting fractions for
testing is not conclusive as to the state permit applicant's inclusion
in that category for any other purposes; and
2. The pollutants listed in Table III of 40 CFR Part 122
Appendix D (2000) (the toxic metals, cyanide, and total phenols).
F. 1. Each state permit applicant must indicate
whether it knows or has reason to believe that any of the pollutants in Table
IV of 40 CFR Part 122 Appendix D (2000) (certain conventional and
nonconventional pollutants) is discharged from each outfall. If an applicable
effluent limitations guideline either directly limits the pollutant or, by its
express terms, indirectly limits the pollutant through limitations on an
indicator, the state permit applicant must report quantitative data. For
every pollutant discharged that is not so limited in an effluent limitations
guideline, the state permit applicant must either report quantitative data
or briefly describe the reasons the pollutant is expected to be discharged.
2. Each applicant must indicate whether it knows or has reason
to believe that any of the pollutants listed in Table II or Table III of 40 CFR
Part 122 Appendix D (2000) (the toxic pollutants and total phenols) for which
quantitative data are not otherwise required under subdivision 7 e of this
subsection, is discharged from each outfall. For every pollutant expected to be
discharged in concentrations of 10 ppb or greater the state permit
applicant must report quantitative data. For acrolein, acrylonitrile, 2,4
dinitrophenol, and 2-methyl-4,6 dinitrophenol, where any of these four
pollutants are expected to be discharged in concentrations of 100 ppb or
greater the state permit applicant must report quantitative data. For
every pollutant expected to be discharged in concentrations less than 10 ppb,
or in the case of acrolein, acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4,6
dinitrophenol, in concentrations less than 100 ppb, the state permit
applicant must either submit quantitative data or briefly describe the reasons
the pollutant is expected to be discharged. A state permit applicant
qualifying as a small business under subdivision 8 of this subsection is not
required to analyze for pollutants listed in Table II of 40 CFR Part 122
Appendix D (2000) (the organic toxic pollutants).
G. Each state permit applicant must indicate whether
it knows or has reason to believe that any of the pollutants in Table V of 40
CFR Part 122 Appendix D (2000) (certain hazardous substances and asbestos) are
discharged from each outfall. For every pollutant expected to be discharged,
the state permit applicant must briefly describe the reasons the
pollutant is expected to be discharged, and report any quantitative data it has
for any pollutant.
H. Each state permit applicant must report qualitative
data, generated using a screening procedure not calibrated with analytical
standards, for 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it:
1. Uses or manufactures 2,4,5-trichlorophenoxy acetic acid
(2,4,5,-T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5,-TP);
2-(2,4,5-trichlorophenoxy) ethyl, 2,2-dichloropropionate (Erbon); O,O-dimethyl
O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-trichlorophenol
(TCP); or hexachlorophene (HCP); or
2. Knows or has reason to believe that TCDD is or may be
present in an effluent.
4VAC50-60-400. Small municipal separate storm sewer systems.
A. Objectives of the stormwater regulations for small MS4s.
1. Subsections A through G of this section are written in a
"readable regulation" format that includes both rule requirements and
guidance that is not legally binding. The recommended guidance is distinguished
from the regulatory requirements by putting the guidance in a separate
subdivision headed by the word "Note."
2. Under the statutory mandate in § 402(p)(6) of the Clean
Water Act, the purpose of this portion of the stormwater program is to
designate additional sources that need to be regulated to protect water quality
and to establish a comprehensive stormwater program to regulate these sources.
3. Stormwater runoff continues to harm the nation's waters.
Runoff from lands modified by human activities can harm surface water resources
in several ways including by changing natural hydrologic patterns and by
elevating pollutant concentrations and loadings. Stormwater runoff may contain
or mobilize high levels of contaminants, such as sediment, suspended solids,
nutrients, heavy metals, pathogens, toxins, oxygen-demanding substances, and
floatables.
4. The board strongly encourages partnerships and the
watershed approach as the management framework for efficiently, effectively,
and consistently protecting and restoring aquatic ecosystems and protecting
public health.
B. As an operator of a small MS4, am I regulated under the VSMP
state's stormwater program?
1. Unless you qualify for a waiver under subdivision 3 of this
subsection, you are regulated if you operate a small MS4, including but not
limited to systems operated by federal, state, tribal, and local governments,
including the Virginia Department of Transportation; and
a. Your small MS4 is located in an urbanized area as
determined by the latest decennial census by the Bureau of the Census (If your
small MS4 is not located entirely within an urbanized area, only the portion
that is within the urbanized area is regulated); or
b. You are designated by the board, including where the
designation is pursuant to subdivisions C 3 a and b of this section or is based
upon a petition under 4VAC50-60-380 D.
2. You may be the subject of a petition to the board to
require a VSMP state permit for your discharge of stormwater. If
the board determines that you need a state permit, you are required to
comply with subsections C through E of this section.
3. The board may waive the requirements otherwise applicable
to you if you meet the criteria of subdivision 4 or 5 of this subsection. If
you receive a waiver under this section, you may subsequently be required to
seek coverage under a VSMP state permit in accordance with
subdivision C 1 of this section if circumstances change. (See also subdivision
E 2 of this section).
4. The board may waive state permit coverage if your
MS4 serves a population of less than 1,000 within the urbanized area and you
meet the following criteria:
a. Your system is not contributing substantially to the
pollutant loadings of a physically interconnected MS4 that is regulated by the VSMP
stormwater program board; and
b. If you discharge any pollutants that have been identified
as a cause of impairment of any water body to which you discharge, stormwater
controls are not needed based on wasteload allocations that are part of an
EPA-approved or established "total maximum daily load" (TMDL) that
addresses the pollutants of concern.
5. The board may waive state permit coverage if your
MS4 serves a population under 10,000 and you meet the following criteria:
a. The board has evaluated all surface waters, including small
streams, tributaries, lakes, and ponds, that receive a discharge from your MS4;
b. For all such waters, the board has determined that
stormwater controls are not needed based on wasteload allocations that are part
of an EPA-approved or established TMDL that addresses the pollutants of
concern or, if a TMDL has not been developed or approved, an equivalent
analysis that determines sources and allocations for the pollutants of concern;
c. For the purpose of subdivision 5 of this subsection, the
pollutants of concern include biochemical oxygen demand (BOD), sediment or a
parameter that addresses sediment (such as total suspended solids, turbidity or
siltation), pathogens, oil and grease, and any pollutant that has been
identified as a cause of impairment of any water body that will receive a
discharge from your MS4; and
d. The board has determined that future discharges from your
MS4 do not have the potential to result in exceedances of water quality
standards, including impairment of designated uses, or other significant water
quality impacts, including habitat and biological impacts.
C. If I am an operator of a regulated small MS4, how do I
apply for a VSMP state permit and when do I have to apply?
1. If you operate a regulated small MS4 under subsection B of
this section, you must seek coverage under a VSMP state permit
issued by the board.
2. You must seek authorization to discharge under a general or
individual VSMP state permit, as follows:
a. If the board has issued a general permit applicable to your
discharge and you are seeking coverage under the general permit, you must
submit a registration statement that includes the information on your best
management practices and measurable goals required by subdivision D 4 of this
section. You may file your own registration statement, or you and other
municipalities or governmental entities may jointly submit a registration
statement. If you want to share responsibilities for meeting the minimum
measures with other municipalities or governmental entities, you must submit a
registration statement that describes which minimum measures you will implement
and identify the entities that will implement the other minimum measures within
the area served by your MS4. The general permit will explain any other steps
necessary to obtain permit authorization.
b. (1) If you are seeking authorization to discharge under an
individual state permit and wish to implement a program under subsection
D of this section, you must submit an application to the board that includes
the information required under 4VAC50-60-360 F and subdivision D 4 of this
section, an estimate of square mileage served by your small MS4, and any
additional information that the board requests. A storm sewer map that
satisfies the requirement of subdivision D 2 c (1) of this section will satisfy
the map requirement in 4VAC50-60-360 F 7.
(2) If you are seeking authorization to discharge under an
individual state permit and wish to implement a program that is different
from the program under subsection D of this section, you will need to comply
with the state permit application requirements of 4VAC50-60-380 C. You
must submit both parts of the application requirements in 4VAC50-60-380 C 1 and
2 by March 10, 2003. You do not need to submit the information required by
4VAC50-60-380 C 1 b and C 2 regarding your legal authority, unless you intend
for the state permit writer to take such information into account when
developing your other state permit conditions.
(3) If allowed by the board, you and another regulated entity
may jointly apply under either subdivision 2 b (1) or (2) of this subsection to
be state co-permittees under an individual state permit.
c. If your small MS4 is in the same urbanized area as a medium
or large MS4 with a VSMP stormwater state permit and that other
MS4 is willing to have you participate in its stormwater program, you and the
other MS4 may jointly seek a modification of the other MS4 state permit
to include you as a limited state co-permittee. As a limited state
co-permittee, you will be responsible for compliance with the state
permit's conditions applicable to your jurisdiction. If you choose this option
you will need to comply with the state permit application requirements
of 4VAC50-60-380, rather than the requirements of subsection D of this section.
You do not need to comply with the specific application requirements of
4VAC50-60-380 C 1 c and d and 4VAC50-60-380 C 2 c (discharge characterization).
You may satisfy the requirements in 4VAC50-60-380 C 1 e and 2 d (identification
of a management program) by referring to the other MS4's stormwater management
program.
d. NOTE: In referencing an MS4's stormwater management
program, you should briefly describe how the existing plan will address
discharges from your small MS4 or would need to be supplemented in order to
adequately address your discharges. You should also explain your role in
coordinating stormwater pollutant control activities in your MS4 and detail the
resources available to you to accomplish the plan.
3. If you operate a regulated small MS4:
a. Designated under subdivision B 1 a of this section, you
must apply for coverage under a VSMP state permit or apply for a
modification of an existing VSMP state permit under subdivision 2
c of this subsection by March 10, 2003.
b. Designated under subdivision B 1 b of this section, you
must apply for coverage under a VSMP state permit or apply for a
modification of an existing VPDES permit under subdivision 2 c of this
subsection within 180 days of notice, unless the board grants a later date.
D. As an operator of a regulated small MS4, what will my VSMP
MS4 stormwater state permit require?
1. Your VSMP MS4 state permit will require at a
minimum that you develop, implement, and enforce a stormwater management
program designed to reduce the discharge of pollutants from your MS4 to the
maximum extent practicable (MEP), to protect water quality, and to satisfy the
appropriate water quality requirements of the Clean Water Act, the Virginia
Stormwater Management Act, and the State Water Control Law. Your stormwater
management program must include the minimum control measures described in
subdivision 2 of this subsection unless you apply for a state permit
under 4VAC50-60-380 C. For purposes of this section, narrative effluent
limitations requiring implementation of best management practices (BMPs) are
generally the most appropriate form of effluent limitations when designed to
satisfy technology requirements (including reductions of pollutants to the
maximum extent practicable) and to protect water quality. Implementation of
best management practices consistent with the provisions of the stormwater
management program required pursuant to this section and the provisions of the state
permit required pursuant to subsection C of this section constitutes compliance
with the standard of reducing pollutants to the maximum extent practicable. The
board will specify a time period of up to five years from the date of state
permit issuance for you to develop and implement your program.
2. Minimum control measures.
a. Public education and outreach on stormwater impacts.
(1) You must implement a public education program to
distribute educational materials to the community or conduct equivalent
outreach activities about the impacts of stormwater discharges on water bodies
and the steps that the public can take to reduce pollutants in stormwater runoff.
(2) NOTE: You may use stormwater educational materials
provided by the state, your tribe, EPA, environmental, public interest or trade
organizations, or other MS4s. The public education program should inform
individuals and households about the steps they can take to reduce stormwater
pollution, such as ensuring proper septic system maintenance, ensuring the
proper use and disposal of landscape and garden chemicals including fertilizers
and pesticides, protecting and restoring riparian vegetation, and properly
disposing of used motor oil or household hazardous wastes. The board recommends
that the program inform individuals and groups how to become involved in local
stream and beach restoration activities as well as activities that are
coordinated by youth service and conservation corps or other citizen groups.
The board recommends that the public education program be tailored, using a mix
of locally appropriate strategies, to target specific audiences and
communities. Examples of strategies include: distributing brochures or fact
sheets, sponsoring speaking engagements before community groups, providing
public service announcements, implementing educational programs targeted at
school-age children, and conducting community-based projects such as storm drain
stenciling, and watershed and beach cleanups. In addition, the board recommends
that some of the materials or outreach programs be directed toward targeted
groups of commercial, industrial, and institutional entities likely to have
significant stormwater impacts. For example, providing information to
restaurants on the impact of grease clogging storm drains and to garages on the
impact of oil discharges. You are encouraged to tailor your outreach program to
address the viewpoints and concerns of all communities, particularly minority
and disadvantaged communities, as well as any special concerns relating to
children.
b. Public involvement/participation.
(1) You must, at a minimum, comply with state, tribal, and
local public notice requirements when implementing a public
involvement/participation program.
(2) The board recommends that the public be included in
developing, implementing, and reviewing your stormwater management program and
that the public participation process should make efforts to reach out and
engage all economic and ethnic groups. Opportunities for members of the public
to participate in program development and implementation include serving as
citizen representatives on a local stormwater management panel, attending
public hearings, working as citizen volunteers to educate other individuals
about the program, assisting in program coordination with other pre-existing
programs, or participating in volunteer monitoring efforts. (Citizens should
obtain approval where necessary for lawful access to monitoring sites.)
c. Illicit discharge detection and elimination.
(1) You must develop, implement and enforce a program to
detect and eliminate illicit discharges (as defined in 4VAC50-60-10) into your
small MS4.
(2) You must:
(a) Develop, if not already completed, a storm sewer system
map, showing the location of all outfalls and the names and location of all
surface waters that receive discharges from those outfalls;
(b) To the extent allowable under state, tribal or local law,
effectively prohibit, through ordinance or other regulatory mechanism,
nonstormwater discharges into your storm sewer system and implement appropriate
enforcement procedures and actions;
(c) Develop and implement a plan to detect and address
nonstormwater discharges, including illegal dumping, to your system; and
(d) Inform public employees, businesses, and the general
public of hazards associated with illegal discharges and improper disposal of
waste.
(3) You need to address the following categories of
nonstormwater discharges or flows (i.e., illicit discharges) only if you
identify them as significant contributors of pollutants to your small MS4:
water line flushing, landscape irrigation, diverted stream flows, rising
groundwaters, uncontaminated groundwater infiltration (as defined in 40 CFR
35.2005(20) (2000)), uncontaminated pumped groundwater, discharges from potable
water sources, foundation drains, air conditioning condensation, irrigation
water, springs, water from crawl space pumps, footing drains, lawn watering,
individual residential car washing, flows from riparian habitats and wetlands,
dechlorinated swimming pool discharges, and street wash water. (Discharges or
flows from fire-fighting activities are excluded from the effective prohibition
against nonstormwater and need only be addressed where they are identified as
significant sources of pollutants to surface waters.)
(4) NOTE: The board recommends that the plan to detect and
address illicit discharges include the following four components: (i)
procedures for locating priority areas likely to have illicit discharges, (ii)
procedures for tracing the source of an illicit discharge, (iii) procedures for
removing the source of the discharge, and (iv) procedures for program
evaluation and assessment. The board recommends visually screening outfalls
during dry weather and conducting field tests of selected pollutants as part of
the procedures for locating priority areas. Illicit discharge education actions
may include storm drain stenciling; a program to promote, publicize, and
facilitate public reporting of illicit connections or discharges; and
distribution of outreach materials.
d. Construction site stormwater runoff control.
(1) You must develop, implement, and enforce a program to
reduce pollutants in any stormwater runoff to your small MS4 from construction
activities that result in a land disturbance of greater than or equal to one
acre, or equal to or greater than 2,500 square feet in all areas of the
jurisdictions designated as subject to the Chesapeake Bay Preservation Area
Designation and Management Regulations adopted pursuant to the Chesapeake Bay
Preservation Act. Reduction of stormwater discharges from construction activity
disturbing less than one acre must be included in your program if that
construction activity is part of a larger common plan of development or sale
that would disturb one acre or more. If the board waives requirements for
stormwater discharges associated with small construction activity in accordance
with the definition in 4VAC50-60-10, you are not required to develop,
implement, and/or enforce a program to reduce pollutant discharges from such
sites.
(2) Your program must include the development and
implementation of, at a minimum:
(a) An ordinance or other regulatory mechanism to require
erosion and sediment controls, as well as sanctions to ensure compliance, to
the extent allowable under state, tribal, or local law;
(b) Requirements for construction site operators to implement
appropriate erosion and sediment control best management practices;
(c) Requirements for construction site operators to control
waste such as discarded building materials, concrete truck washout, chemicals,
litter, and sanitary waste at the construction site that may cause adverse
impacts to water quality;
(d) Procedures for site plan review which incorporate
consideration of potential water quality impacts;
(e) Procedures for receipt and consideration of information
submitted by the public; and
(f) Procedures for site inspection and enforcement of control
measures.
(3) NOTE: Examples of sanctions to ensure compliance include
nonmonetary penalties, fines, bonding requirements and/or state permit
denials for noncompliance. The board recommends that procedures for site plan
review include the review of individual pre-construction site plans to ensure
consistency with local sediment and erosion control VESCP
requirements. Procedures for site inspections and enforcement of control
measures could include steps to identify priority sites for inspection and
enforcement based on the nature of the construction activity, topography, and
the characteristics of soils and receiving water quality. You are encouraged to
provide appropriate educational and training measures for construction site
operators. You may wish to require a stormwater pollution prevention plan for
construction sites within your jurisdiction that discharge into your system.
(See 4VAC50-60-460 L and subdivision E 2 of this section.) The board may
recognize that another government entity may be responsible for implementing
one or more of the minimum measures on your behalf.
e. Post-construction stormwater management in new development
and redevelopment.
(1) You must develop, implement, and enforce a program to
address stormwater runoff from new development and redevelopment projects that
disturb greater than or equal to one acre, including projects less than one
acre that are part of a larger common plan of development or sale, that
discharge into your small MS4. Your program must ensure that controls are in
place that would prevent or minimize water quality impacts.
(2) You must:
(a) Develop and implement strategies that include a
combination of structural and/or nonstructural best management practices (BMPs)
appropriate for your community;
(b) Use an ordinance or other regulatory mechanism to address
post-construction runoff from new development and redevelopment projects to the
extent allowable under state, tribal or local law; and
(c) Ensure adequate long-term operation and maintenance of
BMPs.
(3) NOTE: If water quality impacts are considered from the
beginning stages of a project, new development and potentially redevelopment
provide more opportunities for water quality protection. The board recommends
that the BMPs chosen be appropriate for the local community, minimize water
quality impacts, and attempt to maintain pre-development runoff conditions. In
choosing appropriate BMPs, the board encourages you to participate in locally
based watershed planning efforts that attempt to involve a diverse group of
stakeholders, including interested citizens. When developing a program that is
consistent with this measure's intent, the board recommends that you adopt a
planning process that identifies the municipality's program goals (e.g.,
minimize water quality impacts resulting from post-construction runoff from new
development and redevelopment), implementation strategies (e.g., adopt a
combination of structural and/or nonstructural BMPs), operation and maintenance
policies and procedures, and enforcement procedures. In developing your
program, you should consider assessing existing ordinances, policies, programs
and studies that address stormwater runoff quality. In addition to assessing
these existing documents and programs, you should provide opportunities to the
public to participate in the development of the program. Nonstructural BMPs are
preventative actions that involve management and source controls such as: (i)
policies and ordinances that provide requirements and standards to direct
growth to identified areas, protect sensitive areas such as wetlands and
riparian areas, maintain and/or increase open space (including a dedicated
funding source for open space acquisition), provide buffers along sensitive
water bodies, minimize impervious surfaces, and minimize disturbance of soils
and vegetation; (ii) policies or ordinances that encourage infill development
in higher density urban areas, and areas with existing infrastructure; (iii)
education programs for developers and the public about project designs that
minimize water quality impacts; and (iv) measures such as minimization of
percent impervious area after development and minimization of directly
connected impervious areas. Structural BMPs include: storage practices such as
wet ponds and extended-detention outlet structures; filtration practices such
as grassed swales, sand filters and filter strips; and infiltration practices
such as infiltration basins and infiltration trenches. The board recommends
that you ensure the appropriate implementation of the structural BMPs by
considering some or all of the following: pre-construction review of BMP
designs; inspections during construction to verify BMPs are built as designed;
post-construction inspection and maintenance of BMPs; and penalty provisions
for the noncompliance with design, construction or operation and maintenance.
Stormwater technologies are constantly being improved, and the board recommends
that your requirements be responsive to these changes, developments or
improvements in control technologies.
f. Pollution prevention/good housekeeping for municipal
operations.
(1) You must develop and implement an operation and
maintenance program that includes a training component and has the ultimate
goal of preventing or reducing pollutant runoff from municipal operations.
Using training materials that are available from EPA, state, tribe, or other
organizations, your program must include employee training to prevent and
reduce stormwater pollution from activities such as park and open space
maintenance, fleet and building maintenance, new construction and land
disturbances, and stormwater system maintenance.
(2) NOTE: The board recommends that, at a minimum, you
consider the following in developing your program: maintenance activities,
maintenance schedules, and long-term inspection procedures for structural and
nonstructural stormwater controls to reduce floatables and other pollutants
discharged from your separate storm sewers; controls for reducing or
eliminating the discharge of pollutants from streets, roads, highways,
municipal parking lots, maintenance and storage yards, fleet or maintenance
shops with outdoor storage areas, salt/sand storage locations and snow disposal
areas operated by you, and waste transfer stations; procedures for properly
disposing of waste removed from the separate storm sewers and areas listed
above (such as dredge spoil, accumulated sediments, floatables, and other
debris); and ways to ensure that new flood management projects assess the
impacts on water quality and examine existing projects for incorporating
additional water quality protection devices or practices. Operation and maintenance
should be an integral component of all stormwater management programs. This
measure is intended to improve the efficiency of these programs and require new
programs where necessary. Properly developed and implemented operation and
maintenance programs reduce the risk of water quality problems.
3. If an existing qualifying local program VSMP
requires you to implement one or more of the minimum control measures of
subdivision 2 of this subsection, the board may include conditions in your VPDES
state permit that direct you to follow that qualifying program's VSMP's
requirements rather than the requirements of subdivision 2 of this subsection.
A qualifying local program VSMP is a local, state or tribal
municipal stormwater management program that imposes, at a minimum, the
relevant requirements of subdivision 2 of this subsection.
4. a. In your state permit application (either a
registration statement for coverage under a general permit or an individual
permit application), you must identify and submit to the board the following
information:
(1) The best management practices (BMPs) that you or another
entity will implement for each of the stormwater minimum control measures
provided in subdivision 2 of this subsection;
(2) The measurable goals for each of the BMPs including, as
appropriate, the months and years in which you will undertake required actions,
including interim milestones and the frequency of the action; and
(3) The person or persons responsible for implementing or
coordinating your stormwater management program.
b. If you obtain coverage under a general permit, you are not
required to meet any measurable goals identified in your registration statement
in order to demonstrate compliance with the minimum control measures in
subdivisions 2 c through f of this subsection unless, prior to submitting your
registration statement, EPA or the board has provided or issued a menu of BMPs
that addresses each such minimum measure. Even if no regulatory authority
issues the menu of BMPs, however, you still must comply with other requirements
of the general permit, including good faith implementation of BMPs designed to
comply with the minimum measures.
c. NOTE: Either EPA or the board will provide a menu of BMPs.
You may choose BMPs from the menu or select others that satisfy the minimum
control measures.
5. a. You must comply with any more stringent effluent
limitations in your state permit, including state permit
requirements that modify or are in addition to the minimum control measures
based on an approved total maximum daily load (TMDL) or equivalent analysis.
The board may include such more stringent limitations based on a TMDL or
equivalent analysis that determines such limitations are needed to protect
water quality.
b. NOTE: The board strongly recommends that until the
evaluation of the stormwater program in subsection G of this section, no
additional requirements beyond the minimum control measures be imposed on
regulated small MS4s without the agreement of the operator of the affected small
MS4, except where an approved TMDL or equivalent analysis provides adequate
information to develop more specific measures to protect water quality.
6. You must comply with other applicable VSMP state
permit requirements, standards and conditions established in the individual or
general permit developed consistent with the provisions of 9VAC25-31-190
through 9VAC25-31-250, as appropriate.
7. Evaluation and assessment.
a. You must evaluate program compliance, the appropriateness
of your identified best management practices, and progress towards achieving
your identified measurable goals. The board may determine monitoring
requirements for you in accordance with monitoring plans appropriate to your
watershed. Participation in a group monitoring program is encouraged.
b. You must keep records required by the VSMP state
permit for at least three years. You must submit your records to the department
only when specifically asked to do so. You must make your records, including a
description of your stormwater management program, available to the public at
reasonable times during regular business hours (see 4VAC50-60-340 for
confidentiality provision). You may assess a reasonable charge for copying. You
may require a member of the public to provide advance notice.
c. Unless you are relying on another entity to satisfy your VSMP
state permit obligations under subdivision E 1 of this section, you must
submit annual reports to the department for your first state permit
term. For subsequent state permit terms, you must submit reports in
years two and four unless the department requires more frequent reports. Your
report must include:
(1) The status of compliance with state permit
conditions, an assessment of the appropriateness of your identified best
management practices and progress towards achieving your identified measurable
goals for each of the minimum control measures;
(2) Results of information collected and analyzed, including
monitoring data, if any, during the reporting period;
(3) A summary of the stormwater activities you plan to
undertake during the next reporting cycle;
(4) A change in any identified best management practices or
measurable goals for any of the minimum control measures; and
(5) Notice that you are relying on another governmental entity
to satisfy some of your state permit obligations (if applicable).
E. As an operator of a regulated small MS4, may I share the
responsibility to implement the minimum control measures with other entities?
1. You may rely on another entity to satisfy your VSMP state
permit obligations to implement a minimum control measure if:
a. The other entity, in fact, implements the control measure;
b. The particular control measure, or component thereof, is at
least as stringent as the corresponding VSMP state permit
requirement; and
c. The other entity agrees to implement the control measure on
your behalf. In the reports you must submit under subdivision D 7 c of this
section, you must also specify that you rely on another entity to satisfy some
of your state permit obligations. If you are relying on another
governmental entity regulated under the VSMP state permit program
to satisfy all of your state permit obligations, including your
obligation to file periodic reports required by subdivision D 7 c of this section,
you must note that fact in your registration statement, but you are not
required to file the periodic reports. You remain responsible for compliance
with your state permit obligations if the other entity fails to
implement the control measure (or component thereof). Therefore, the board
encourages you to enter into a legally binding agreement with that entity if
you want to minimize any uncertainty about compliance with your state
permit.
2. In some cases, the board may recognize, either in your
individual VSMP permit or in a VSMP general permit, that another
governmental entity is responsible under a VSMP state permit for
implementing one or more of the minimum control measures for your small MS4.
Where the board does so, you are not required to include such minimum control
measure(s) in your stormwater management program. Your state permit may
be reopened and modified to include the requirement to implement a minimum
control measure if the entity fails to implement it.
F. As an operator of a regulated small MS4, what happens if I
don't comply with the application or state permit requirements in
subsections C through E of this section?
VSMP State permits are enforceable under the
Clean Water Act and the Virginia Stormwater Management Act. Violators may be
subject to the enforcement actions and penalties described in Clean Water Act
§§ 309 (b), (c), and (g) and 505 or under §§ 10.1-603.12:1 through 10.1-603.14
of the Code of Virginia. Compliance with a state permit issued pursuant
to § 402 of the Clean Water Act is deemed compliance, for purposes of §§
309 and 505, with §§ 301, 302, 306, 307, and 403, except any standard imposed
under § 307 for toxic pollutants injurious to human health. If you are
covered as a state co-permittee under an individual permit or under a
general permit by means of a joint registration statement, you remain subject
to the enforcement actions and penalties for the failure to comply with the
terms of the state permit in your jurisdiction except as set forth in
subdivision E 2 of this section.
G. Will the small MS4 stormwater program regulations at
subsections B through F of this section change in the future?
The board will evaluate the small MS4 regulations at
subsections B through F of this section after December 10, 2012, and make any
necessary revisions. (EPA intends to conduct an enhanced research effort and
compile a comprehensive evaluation of the NPDES MS4 stormwater program. The
board will reevaluate the regulations based on data from the EPA NPDES MS4
stormwater program, from research on receiving water impacts from stormwater,
and the effectiveness of best management practices (BMPs), as well as other
relevant information sources.)
4VAC50-60-410. General permits.
A. The board may issue a general permit in accordance with
the following:
1. The general permit shall be written to cover one or more
categories or subcategories of discharges, except those covered by individual
permits, within a geographic area. The area should correspond to existing
geographic or political boundaries, such as:
a. Designated planning areas under §§ 208 and 303 of CWA;
b. Sewer districts or sewer authorities;
c. City, county, or state political boundaries;
d. State highway systems;
e. Standard metropolitan statistical areas as defined by the
Office of Management and Budget;
f. Urbanized areas as designated by the Bureau of the Census
according to criteria in 30 FR 15202 (May 1, 1974); or
g. Any other appropriate division or combination of
boundaries.
2. The general permit may be written to regulate one or more
categories within the area described in subdivision 1 of this subsection, where
the sources within a covered subcategory of discharges are stormwater point
sources.
3. Where sources within a specific category of dischargers are
subject to water quality-based limits imposed pursuant to 4VAC50-60-460, the
sources in that specific category or subcategory shall be subject to the same
water quality-based effluent limitations.
4. The general permit must clearly identify the applicable
conditions for each category or subcategory of dischargers covered by the
permit.
5. The general permit may exclude specified sources or areas
from coverage.
B. Administration.
1. General permits may be issued, modified, revoked and
reissued, or terminated in accordance with applicable requirements of this
chapter.
2. Authorization to discharge.
a. Except as provided in subdivisions 2 e and 2 f of this
subsection, dischargers seeking coverage under a general permit shall submit to
the department a written notice of intent to be covered by the general permit.
A discharger who fails to submit a notice of intent in accordance with the terms
of the state permit is not authorized to discharge, under the terms of
the general permit unless the general permit, in accordance with subdivision 2
e of this subsection, contains a provision that a notice of intent is not
required or the board notifies a discharger (or treatment works treating
domestic sewage) that it is covered by a general permit in accordance with
subdivision 2 f of this subsection. A complete and timely notice of intent
(NOI) to be covered in accordance with general permit requirements fulfills the
requirements for permit applications for the purposes of this chapter.
b. The contents of the notice of intent shall be specified in
the general permit and shall require the submission of information necessary
for adequate program implementation, including at a minimum, the legal name and
address of the owner or operator, the facility name and address, type of
facility or discharges, and the receiving stream or streams. All notices of
intent shall be signed in accordance with 4VAC50-60-370.
c. General permits shall specify the deadlines for submitting
notices of intent to be covered and the date or dates when a discharger is
authorized to discharge under the state permit.
d. General permits shall specify whether a discharger that has
submitted a complete and timely notice of intent to be covered in accordance
with the general permit and that is eligible for coverage under the state
permit, is authorized to discharge in accordance with the state permit
either upon receipt of the notice of intent by the department, after a waiting
period specified in the general permit, on a date specified in the general
permit, or upon receipt of notification of inclusion by the board. Coverage may
be terminated or revoked in accordance with subdivision 3 of this subsection.
e. Stormwater discharges associated with small construction
activity may, at the discretion of the board, be authorized to discharge under
a general permit without submitting a notice of intent where the board finds
that a notice of intent requirement would be inappropriate. In making such a
finding, the board shall consider the (i) type of discharge, (ii) expected
nature of the discharge, (iii) potential for toxic and conventional pollutants
in the discharges, (iv) expected volume of the discharges, (v) other means of
identifying discharges covered by the state permit, and (vi) estimated
number of discharges to be covered by the state permit. The board shall
provide in the public notice of the general permit the reasons for not
requiring a notice of intent.
f. The board may notify a discharger that it is covered by a
general permit, even if the discharger has not submitted a notice of intent to
be covered. A discharger so notified may request an individual permit under
subdivision 3 c of this subsection.
3. Requiring an individual permit.
a. The board may require any discharger authorized by a
general permit to apply for and obtain an individual VSMP permit. Any
interested person may request the board to take action under this subdivision.
Cases where an individual VSMP permit may be required include the
following:
(1) The discharger is not in compliance with the conditions of
the general VSMP permit;
(2) A change has occurred in the availability of demonstrated
technology or practices for the control or abatement of pollutants applicable
to the point source;
(3) Effluent limitation guidelines are promulgated for point
sources covered by the general VSMP permit;
(4) A water quality management plan, established by the State
Water Control Board pursuant to 9VAC25-720, containing requirements applicable
to such point sources is approved;
(5) Circumstances have changed since the time of the request
to be covered so that the discharger is no longer appropriately controlled
under the general permit, or either a temporary or permanent reduction or
elimination of the authorized discharge is necessary;
(6) The discharge(s) is a significant contributor of pollutants.
In making this determination, the board may consider the following factors:
(a) The location of the discharge with respect to surface
waters;
(b) The size of the discharge;
(c) The quantity and nature of the pollutants discharged to
surface waters; and
(d) Other relevant factors;
b. Permits State permits required on a
case-by-case basis.
(1) The board may determine, on a case-by-case basis, that
certain stormwater discharges, and certain other facilities covered by general
permits that do not generally require an individual permit may be required to
obtain an individual permit because of their contributions to water pollution.
(2) Whenever the board decides that an individual permit is
required under this subsection, except as provided in subdivision 3 b (3) of
this subsection, the board shall notify the discharger in writing of that
decision and the reasons for it, and shall send an application form with the
notice. The discharger must apply for a permit within 60 days of notice, unless
permission for a later date is granted by the board. The question whether the
designation was proper will remain open for consideration during the public
comment period for the draft state permit and in any subsequent public
hearing.
(3) Prior to a case-by-case determination that an individual
permit is required for a stormwater discharge under this subsection, the board
may require the discharger to submit a state permit application or other
information regarding the discharge under the Act and § 308 of the CWA. In
requiring such information, the board shall notify the discharger in writing
and shall send an application form with the notice. The discharger must apply
for a state permit under 4VAC50-60-380 A 1 within 60 days of notice or
under 4VAC50-60-380 A 8 within 180 days of notice, unless permission for a
later date is granted by the board. The question whether the initial
designation was proper will remain open for consideration during the public
comment period for the draft state permit and in any subsequent public
hearing.
c. Any owner or operator authorized by a general permit may
request to be excluded from the coverage of the general permit by applying for
an individual permit. The owner or operator shall submit an application under
4VAC50-60-360 with reasons supporting the request. The request shall be
processed under the applicable parts of this chapter. The request shall be
granted by issuing of an individual permit if the reasons cited by the owner or
operator are adequate to support the request.
d. When an individual VSMP permit is issued to an owner
or operator otherwise subject to a general VSMP permit, the
applicability of the general permit to the individual VSMP permit
state permittee is automatically terminated on the effective date of the
individual permit.
e. A source excluded from a general permit solely because it
already has an individual permit may request that the individual permit be
revoked, and that it be covered by the general permit. Upon revocation of the
individual permit, the general permit shall apply to the source.
4VAC50-60-420. New sources and new dischargers.
A. Criteria for new source determination.
1. Except as otherwise provided in an applicable new source
performance standard, a source is a new source if it meets the definition of
new source in this chapter, and
a. It is constructed at a site at which no other source is
located; or
b. It totally replaces the process or production equipment
that causes the discharge of pollutants at an existing source; or
c. Its processes are substantially independent of an existing
source at the same site. In determining whether these processes are
substantially independent, the board shall consider such factors as the extent
to which the new facility is integrated with the existing plant and the extent
to which the new facility is engaged in the same general type of activity as
the existing source.
2. A source meeting the requirements of subdivisions 1 a, b,
or c of this subsection is a new source only if a new source performance standard
is independently applicable to it. If there is no such independently applicable
standard, the source is a new discharger.
3. Construction on a site at which an existing source is
located results in a state permit modification subject to 4VAC50-60-630
rather than a new source (or a new discharger) if the construction does not
create a new building, structure, facility, or installation meeting the
criteria of subdivisions 1 b or c of this subsection but otherwise alters,
replaces, or adds to existing process or production equipment.
4. Construction of a new source has commenced if the owner or
operator has:
a. Begun, or caused to begin as part of a continuous on-site
construction program:
(1) Any placement, assembly, or installation of facilities or
equipment; or
(2) Significant site preparation work including clearing,
excavation or removal of existing buildings, structures, or facilities which is
necessary for the placement, assembly, or installation of new source facilities
or equipment; or
b. Entered into a binding contractual obligation for the
purchase of facilities or equipment which are intended to be used in its
operation within a reasonable time. Options to purchase or contracts which can
be terminated or modified without substantial loss, and contracts for
feasibility engineering, and design studies do not constitute a contractual
obligation under the paragraph.
B. Effect of compliance with new source performance
standards. The provisions of this subsection do not apply to existing sources
which modify their pollution control facilities or construct new pollution
control facilities and achieve performance standards, but which are neither new
sources or new dischargers or otherwise do not meet the requirements of this
subdivision.
1. Except as provided in subdivision 2 of this subsection, any
new discharger, the construction of which commenced after October 18, 1972, or
new source which meets the applicable promulgated new source performance
standards before the commencement of discharge, may not be subject to any more
stringent new source performance standards or to any more stringent
technology-based standards under § 301(b)(2) of the CWA for the soonest
ending of the following periods:
a. Ten years from the date that construction is completed;
b. Ten years from the date the source begins to discharge
process or other nonconstruction related wastewater; or
c. The period of depreciation or amortization of the facility
for the purposes of § 167 or § 169 (or both) of the Internal Revenue Code of
1954 (26 USC 167 and 26 USC 169, respectively).
2. The protection from more stringent standards of performance
afforded by subdivision 1 of this subsection does not apply to:
a. Additional or more stringent state permit
conditions that are not technology based; for example, conditions based on
water quality standards, or toxic effluent standards or prohibitions under the
Act and § 307(a) of the CWA; or
b. Additional state permit conditions controlling toxic
pollutants or hazardous substances that are not controlled by new source
performance standards. This includes state permit conditions controlling
pollutants other than those identified as toxic pollutants or hazardous
substances when control of these pollutants has been specifically identified as
the method to control the toxic pollutants or hazardous substances.
3. When a VPDES or VSMP state permit issued to a
source with a protection period under subdivision 1 of this subsection will
expire on or after the expiration of the protection period, that permit shall
require the owner or operator of the source to comply with the requirements of
§ 301 of the CWA and any other then applicable requirements of the CWA and
the Act immediately upon the expiration of the protection period. No additional
period for achieving compliance with these requirements may be allowed except
when necessary to achieve compliance with requirements promulgated less than
three years before the expiration of the protection period.
4. The owner or operator of a new source, a new discharger
which commenced discharge after August 13, 1979, or a recommencing discharger
shall install and have in operating condition, and shall start-up all pollution
control equipment required to meet the conditions of its state permits
before beginning to discharge. Within the shortest feasible time (not to exceed
90 days), the owner or operator must meet all state permit conditions.
The requirements of this paragraph do not apply if the owner or operator is
issued a state permit containing a compliance schedule under
4VAC50-60-490 A 2.
5. After the effective date of new source performance
standards, it shall be unlawful for any owner or operator of any new source to
operate the source in violation of those standards applicable to the source.
Part VIII
VSMP State Permit Conditions
4VAC50-60-430. Conditions applicable to all permits.
The following conditions apply to all VSMP state
permits. Additional conditions applicable to VSMP state permits
are in 4VAC50-60-440. All conditions applicable to VSMP state
permits shall be incorporated into the state permits either expressly or
by reference. If incorporated by reference, a specific citation to this
regulation must be given in the state permit.
A. The state permittee shall comply with all
conditions of the state permit. Any state permit noncompliance
constitutes a violation of the Act and the CWA, except that noncompliance with
certain provisions of the state permit may constitute a violation of the
Act but not the CWA. Permit State permit noncompliance is grounds
for enforcement action; for state permit termination, revocation and
reissuance, or modification; or denial of a state permit renewal
application.
The state permittee shall comply with effluent
standards or prohibitions established under § 307(a) of the CWA for toxic
pollutants within the time provided in the chapters that establish these
standards or prohibitions, even if the state permit has not yet been
modified to incorporate the requirement.
B. If the state permittee wishes to continue an
activity regulated by the state permit after the expiration date of the state
permit, the state permittee must apply for and obtain a new state
permit.
C. It shall not be a defense for a state permittee in
an enforcement action that it would have been necessary to halt or reduce the
permitted activity in order to maintain compliance with the conditions of the state
permit.
D. The state permittee shall take all reasonable steps
to minimize or prevent any discharge in violation of the state permit
that has a reasonable likelihood of adversely affecting human health or the
environment.
E. The state permittee shall at all times properly
operate and maintain all facilities and systems of treatment and control (and
related appurtenances) that are installed or used by the state permittee
to achieve compliance with the conditions of the state permit. Proper
operation and maintenance also includes adequate laboratory controls and
appropriate quality assurance procedures. This provision requires the operation
of back-up or auxiliary facilities or similar systems that are installed by a state
permittee only when the operation is necessary to achieve compliance with the
conditions of the state permit.
F. Permits State permits may be modified,
revoked and reissued, or terminated for cause. The filing of a request by the state
permittee for a state permit modification, revocation and reissuance, or
termination, or a notification of planned changes or anticipated noncompliance
does not stay any state permit condition.
G. Permits State permits do not convey any
property rights of any sort, or any exclusive privilege.
H. The state permittee shall furnish to the
department, within a reasonable time, any information that the board may
request to determine whether cause exists for modifying, revoking and
reissuing, or terminating the state permit or to determine compliance
with the state permit. The board may require the state permittee
to furnish, upon request, such plans, specifications, and other pertinent
information as may be necessary to determine the effect of the wastes from his
discharge on the quality of state waters, or such other information as may be
necessary to accomplish the purposes of the Act. The state permittee
shall also furnish to the department upon request, copies of records required
to be kept by the state permit.
I. The state permittee shall allow the director as the
board's designee, or an authorized representative (including an authorized
contractor acting as a representative of the administrator), upon presentation
of credentials and other documents as may be required by law, to:
1. Enter upon the state permittee's premises where a
regulated facility or activity is located or conducted, or where records must
be kept under the conditions of the state permit;
2. Have access to and copy, at reasonable times, any records
that must be kept under the conditions of the state permit;
3. Inspect at reasonable times any facilities, equipment
(including monitoring and control equipment), practices, or operations
regulated or required under the state permit; and
4. Sample or monitor at reasonable times, for the purposes of
assuring state permit compliance or as otherwise authorized by the CWA
and the Act, any substances or parameters at any location.
J. Monitoring and records.
1. Samples and measurements taken for the purpose of monitoring
shall be representative of the monitored activity.
2. The state permittee shall retain records of all
monitoring information, including all calibration and maintenance records and
all original strip chart recordings for continuous monitoring instrumentation,
copies of all reports required by the state permit, and records of all
data used to complete the application for the state permit, for a period
of at least three years from the date of the sample, measurement, report or
application. This period of retention shall be extended automatically during
the course of any unresolved litigation regarding the regulated activity or regarding
control standards applicable to the state permittee, or as requested by
the board.
3. Records of monitoring information shall include:
a. The date, exact place, and time of sampling or
measurements;
b. The individual or individuals who performed the sampling or
measurements;
c. The date or dates analyses were performed;
d. The individual or individuals who performed the analyses;
e. The analytical techniques or methods used; and
f. The results of such analyses.
4. Monitoring results must be conducted according to test
procedures approved under 40 CFR Part 136 (2000) or alternative EPA approved
methods, unless other test procedures have been specified in the state
permit.
K. All applications, reports, or information submitted to the
permit-issuing VSMP authority and department shall be
signed and certified as required by 4VAC50-60-370.
L. Reporting requirements.
1. The state permittee shall give notice to the
department as soon as possible of any planned physical alterations or additions
to the permitted facility. Notice is required only when:
a. The alteration or addition to a permitted facility may meet
one of the criteria for determining whether a facility is a new source in
4VAC50-60-420 A; or
b. The alteration or addition could significantly change the
nature or increase the quantity of pollutants discharged. This notification
applies to pollutants that are not subject to effluent limitations in the state
permit.
2. The state permittee shall give advance notice to the
department of any planned changes in the permitted facility or activity that
may result in noncompliance with state permit requirements.
3. Permits State permits are not transferable to
any person except after notice to the department. The board may require
modification or revocation and reissuance of state permits to change the
name of the state permittee and incorporate such other requirements as
may be necessary under the Act or the CWA.
4. Monitoring results shall be reported at the intervals
specified in the state permit.
a. Monitoring results must be reported on a Discharge
Monitoring Report (DMR) or forms provided or specified by the department.
b. If the state permittee monitors any pollutant
specifically addressed by the state permit more frequently than required
by the state permit using test procedures approved under 40 CFR Part 136
(2000) or as otherwise specified in the state permit, the results of
this monitoring shall be included in the calculation and reporting of the data
submitted in the DMR or reporting form specified by the department.
c. Calculations for all limitations that require averaging of
measurements shall utilize an arithmetic mean unless otherwise specified in the
permit.
5. Reports of compliance or noncompliance with, or any
progress reports on, interim and final requirements contained in any compliance
schedule of the state permit shall be submitted no later than 14 days
following each schedule date.
6. If any unusual or extraordinary discharge including a
bypass or upset should occur from a facility and such discharge enters or could
be expected to enter state waters, the state permitee shall promptly
notify, in no case later than 24 hours, the Department of Environmental Quality
and the department by telephone after the discovery of such discharge. This
notification shall provide all available details of the incident, including any
adverse affects on aquatic life and the known number of fish killed. The state
permittee shall reduce the report to writing and shall submit it to the
Department of Environmental Quality and the department within five days of
discovery of the discharge in accordance with subdivision 7 a of this
subsection. Unusual and extraordinary discharges include but are not limited to
any discharge resulting from:
a. Unusual spillage of materials resulting directly or
indirectly from processing operations;
b. Breakdown of processing or accessory equipment;
c. Failure or taking out of service of the treatment plant or
auxiliary facilities (such as sewer lines or wastewater pump stations); and
d. Flooding or other acts of nature.
7. Twenty-four hour reporting.
a. The state permittee shall report any noncompliance
which may endanger health or the environment. Any information shall be provided
orally within 24 hours from the time the state permittee becomes aware
of the circumstances. A written submission shall also be provided within five
days of the time the state permittee becomes aware of the circumstances.
The written submission shall contain a description of the noncompliance and its
cause; the period of noncompliance, including exact dates and times, and if the
noncompliance has not been corrected, the anticipated time it is expected to
continue; and steps taken or planned to reduce, eliminate, and prevent
reoccurrence of the noncompliance.
b. The following shall be included as information which must
be reported within 24 hours under this subdivision:
(1) Any unanticipated bypass that exceeds any effluent
limitation in the state permit.
(2) Any upset that exceeds any effluent limitation in the state
permit.
(3) Violation of a maximum daily discharge limitation for any
of the pollutants listed in the state permit to be reported within 24
hours.
c. The board may waive the written report on a case-by-case
basis for reports under this subdivision if the oral report has been received
within 24 hours.
8. The state permittee shall report all instances of
noncompliance not reported under subdivisions 4, 5, 6, and 7 of this
subsection, in writing at the time the next monitoring reports are submitted.
The reports shall contain the information listed in subdivision 7 of this
subsection.
9. Where the state permittee becomes aware that it failed
to submit any relevant facts in a permit application, or submitted incorrect
information in a state permit application or in any report to the
department, it shall promptly submit such facts or information.
M. Bypass.
1. The state permittee may allow any bypass to occur
that does not cause effluent limitations to be exceeded, but only if it also is
for essential maintenance to assure efficient operation. These bypasses are not
subject to the provisions of subdivisions 2 and 3 of this subsection.
2. Notice.
a. Anticipated bypass. If the state permittee knows in
advance of the need for a bypass, it shall submit prior notice, if possible at
least 10 days before the date of the bypass.
b. Unanticipated bypass. The state permittee shall
submit notice of an unanticipated bypass as required in subdivision L 7 of this
section (24-hour notice).
3. Prohibition of bypass.
a. Bypass is prohibited, and the board may take enforcement
action against a state permittee for bypass, unless:
(1) Bypass was unavoidable to prevent loss of life, personal
injury, or severe property damage;
(2) There were no feasible alternatives to the bypass, such as
the use of auxiliary treatment facilities, retention of untreated wastes, or
maintenance during normal periods of equipment downtime. This condition is not
satisfied if adequate back-up equipment should have been installed in the
exercise of reasonable engineering judgment to prevent a bypass that occurred
during normal periods of equipment downtime or preventive maintenance; and
(3) The state permittee submitted notices as required
under subdivision 2 of this subsection.
b. The board may approve an anticipated bypass, after
considering its adverse effects, if the board determines that it will meet the
three conditions listed in subdivision 3 a of this subsection.
N. Upset.
1. An upset constitutes an affirmative defense to an action
brought for noncompliance with such technology based state permit
effluent limitations if the requirements of subdivision 2 of this subsection
are met. No determination made during administrative review of claims that
noncompliance was caused by upset, and before an action for noncompliance, is
final administrative action subject to judicial review.
2. A state permittee who wishes to establish the
affirmative defense of upset shall demonstrate, through properly signed,
contemporaneous operating logs, or other relevant evidence that:
a. An upset occurred and that the state permittee can
identify the cause or causes of the upset;
b. The permitted facility was at the time being properly
operated;
c. The state permittee submitted notice of the upset as
required in subdivision L 7 b (2) of this section (24-hour notice); and
d. The state permittee complied with any remedial
measures required under subsection D of this section.
3. In any enforcement proceeding the state permittee
seeking to establish the occurrence of an upset has the burden of proof.
4VAC50-60-440. Additional conditions applicable to Municipal
Separate Storm Sewer System VSMP state permits.
In addition to those conditions set forth in 4VAC50-60-430,
the operator of a large or medium municipal separate storm sewer system or a
municipal separate storm sewer that has been designated by the board under
4VAC50-60-380 A 1 e must submit an annual report by a date specified in the state
permit for such system. The report shall include:
1. The status of implementing the components of the stormwater
management program that are established as state permit conditions;
2. Proposed changes to the stormwater management programs that
are established as state permit condition conditions. Such
proposed changes shall be consistent with 4VAC50-60-380 C 2 d;
3. Revisions, if necessary, to the assessment of controls and
the fiscal analysis reported in the state permit application;
4. A summary of data, including monitoring data, that is
accumulated throughout the reporting year;
5. Annual expenditures and budget for year following each
annual report;
6. A summary describing the number and nature of enforcement
actions, inspections, and public education programs; and
7. Identification of water quality improvements or
degradation.
4VAC50-60-450. Establishing state permit conditions.
A. In addition to conditions required in all state
permits, the board shall establish conditions, as required on a case-by-case
basis, to provide for and assure compliance with all applicable requirements of
the Stormwater Management Act, the State Water Control Law, the CWA, and
attendant regulations. These shall include conditions under 4VAC50-60-480
(duration of state permits), 4VAC50-60-490 (schedules of compliance) and
4VAC50-60-460 (monitoring).
B. 1. An applicable requirement is a state statutory or
regulatory requirement which takes effect prior to final administrative
disposition of a state permit. An applicable requirement is also any
requirement that takes effect prior to the modification or revocation and
reissuance of a state permit to the extent allowed in Part X of this
chapter.
2. New or reissued state permits, and to the extent
allowed under Part X of this chapter modified or revoked and reissued state
permits, shall incorporate each of the applicable requirements referenced in
4VAC50-60-460 and 4VAC50-60-470.
C. All state permit conditions shall be incorporated
either expressly or by reference. If incorporated by reference, a specific
citation to the applicable regulations or requirements must be given in the state
permit.
4VAC50-60-460. Establishing limitations, standards, and other state
permit conditions.
In addition to the conditions established under 4VAC50-60-450
A, each VSMP state permit shall include conditions meeting the
following requirements when applicable.
A. 1. Technology-based effluent limitations and standards
based on effluent limitations and standards promulgated under § 301 of the CWA,
on new source performance standards promulgated under § 306 of CWA, on
case-by-case effluent limitations determined under § 402(a)(1) of CWA, or a
combination of the three. For new sources or new dischargers, these
technology-based limitations and standards are subject to the provisions of
4VAC50-60-420 B (protection period).
2. The board may authorize a discharger subject to
technology-based effluent limitations guidelines and standards in a VSMP
state permit to forego sampling of a pollutant found at 40 CFR
Subchapter N (2000) if the discharger has demonstrated through sampling and
other technical factors that the pollutant is not present in the discharge or
is present only at background levels from intake water and without any increase
in the pollutant due to activities of the discharger. This waiver is good only
for the term of the state permit and is not available during the term of
the first state permit issued to a discharger. Any request for this
waiver must be submitted when applying for a reissued state permit or
modification of a reissued state permit. The request must demonstrate
through sampling or other technical information, including information
generated during an earlier state permit term, that the pollutant is not
present in the discharge or is present only at background levels from intake
water and without any increase in the pollutant due to activities of the
discharger. Any grant of the monitoring waiver must be included in the state
permit as an express state permit condition and the reasons supporting
the grant must be documented in the state permit's fact sheet or
statement of basis. This provision does not supersede certification processes
and requirements already established in existing effluent limitations
guidelines and standards.
B. Other effluent limitations and standards under §§ 301,
302, 303, 307, 318 and 405 of the CWA. If any applicable toxic effluent
standard or prohibition (including any schedule of compliance specified in such
effluent standard or prohibition) is promulgated under § 307(a) of the CWA for
a toxic pollutant and that standard or prohibition is more stringent than any
limitation on the pollutant in the state permit, the board shall
institute proceedings under this chapter to modify or revoke and reissue the state
permit to conform to the toxic effluent standard or prohibition.
C. Water quality standards and state requirements. Any
requirements in addition to or more stringent than promulgated effluent
limitations guidelines or standards under §§ 301, 304, 306, 307, 318 and
405 of the CWA necessary to:
1. Achieve water quality standards established under the State
Water Control Law and § 303 of the CWA, including state narrative criteria for
water quality.
a. Limitations must control all pollutants or pollutant
parameters (either conventional, nonconventional, or toxic pollutants) which
the board determines are or may be discharged at a level that will cause, have
the reasonable potential to cause, or contribute to an excursion above any
Virginia water quality standard, including Virginia narrative criteria for
water quality.
b. When determining whether a discharge causes, has the
reasonable potential to cause, or contributes to an in-stream excursion above a
narrative or numeric criteria within a Virginia water quality standard, the
board shall use procedures that account for existing controls on point and
nonpoint sources of pollution, the variability of the pollutant or pollutant
parameter in the effluent, the sensitivity of the species to toxicity testing
(when evaluating whole effluent toxicity), and where appropriate, the dilution
of the effluent in the receiving water.
c. When the board determines, using the procedures in
subdivision 1 b of this subsection, that a discharge causes, has the reasonable
potential to cause, or contributes to an in-stream excursion above the allowable
ambient concentration of a Virginia numeric criteria within a Virginia water
quality standard for an individual pollutant, the state permit must
contain effluent limits for that pollutant.
d. Except as provided in this subdivision, when the board
determines, using the procedures in subdivision 1 b of this subsection,
toxicity testing data, or other information, that a discharge causes, has the
reasonable potential to cause, or contributes to an in-stream excursion above a
narrative criterion within an applicable Virginia water quality standard, the state
permit must contain effluent limits for whole effluent toxicity. Limits on
whole effluent toxicity are not necessary where the board demonstrates in the
fact sheet or statement of basis of the VSMP state permit, using
the procedures in subdivision 1 b of this subsection, that chemical-specific
limits for the effluent are sufficient to attain and maintain applicable
numeric and narrative Virginia water quality standards.
e. Where Virginia has not established a water quality
criterion for a specific chemical pollutant that is present in an effluent at a
concentration that causes, has the reasonable potential to cause, or
contributes to an excursion above a narrative criterion within an applicable Virginia
water quality standard, the board must establish effluent limits using one or
more of the following options:
(1) Establish effluent limits using a calculated numeric water
quality criterion for the pollutant which the board demonstrates will attain and
maintain applicable narrative water quality criteria and will fully protect the
designated use. Such a criterion may be derived using a proposed Virginia
criterion, or an explicit policy or regulation interpreting Virginia's
narrative water quality criterion, supplemented with other relevant information
which may include: EPA's Water Quality Standards Handbook, August 1994, risk
assessment data, exposure data, information about the pollutant from the Food
and Drug Administration, and current EPA criteria documents; or
(2) Establish effluent limits on a case-by-case basis, using
EPA's water quality criteria, published under § 307(a) of the CWA,
supplemented where necessary by other relevant information; or
(3) Establish effluent limitations on an indicator parameter
for the pollutant of concern, provided:
(a) The state permit identifies which pollutants are
intended to be controlled by the use of the effluent limitation;
(b) The fact sheet required by 4VAC50-60-520 sets forth the
basis for the limit, including a finding that compliance with the effluent
limit on the indicator parameter will result in controls on the pollutant of
concern which are sufficient to attain and maintain applicable water quality
standards;
(c) The state permit requires all effluent and ambient
monitoring necessary to show that during the term of the state permit
the limit on the indicator parameter continues to attain and maintain
applicable water quality standards; and
(d) The state permit contains a reopener clause
allowing the board to modify or revoke and reissue the state permit if
the limits on the indicator parameter no longer attain and maintain applicable
water quality standards.
f. When developing water quality-based effluent limits under
this subdivision the board shall ensure that:
(1) The level of water quality to be achieved by limits on
point sources established under this subsection is derived from, and complies
with all applicable water quality standards; and
(2) Effluent limits developed to protect a narrative water
quality criterion, a numeric water quality criterion, or both, are consistent
with the assumptions and requirements of any available wasteload allocation for
the discharge prepared by Virginia and approved by EPA pursuant to 40 CFR 130.7
(2000);
2. Attain or maintain a specified water quality through water
quality related effluent limits established under the State Water Control Law
and § 302 of the CWA;
3. Conform to the conditions of a Virginia Water Protection
Permit (VWPP) issued under the State Water Control Law and § 401 of the CWA;
4. Conform to applicable water quality requirements under § 401(a)(2)
of the CWA when the discharge affects a state other than Virginia;
5. Incorporate any more stringent limitations, treatment
standards, or schedule of compliance requirements established under the Act or
regulations in accordance with § 301(b)(1)(C) of the CWA;
6. Ensure consistency with the requirements of a Water Quality
Management plan established by the State Water Control Board pursuant to
9VAC25-720 and approved by EPA under § 208(b) of the CWA;
7. Incorporate § 403(c) criteria under 40 CFR Part 125,
Subpart M (2000), for ocean discharges; or
8. Incorporate alternative effluent limitations or standards
where warranted by fundamentally different factors, under 40 CFR Part 125,
Subpart D (2000).
D. Technology-based controls for toxic pollutants.
Limitations established under subsections A, B, or C of this section, to
control pollutants meeting the criteria listed in subdivision 1 of this subsection.
Limitations will be established in accordance with subdivision 2 of this
subsection. An explanation of the development of these limitations shall be
included in the fact sheet.
1. Limitations must control all toxic pollutants that the
board determines (based on information reported in a permit application or in a
notification required by the state permit or on other information) are
or may be discharged at a level greater than the level that can be achieved by
the technology-based treatment requirements appropriate to the state
permittee; or
2. The requirement that the limitations control the pollutants
meeting the criteria of subdivision 1 of this subsection will be satisfied by:
a. Limitations on those pollutants; or
b. Limitations on other pollutants that, in the judgment of
the board, will provide treatment of the pollutants under subdivision 1 of this
subsection to the levels required by the Stormwater Management Act, the State
Water Control Law, and 40 CFR Part 125, Subpart A (2000).
E. A notification level that exceeds the notification level
of 4VAC50-60-440 A 1 a, b, or c, upon a petition from the state
permittee or on the board's initiative. This new notification level may not
exceed the level which can be achieved by the technology-based treatment
requirements appropriate to the state permittee.
F. Twenty-four-hour reporting. Pollutants for which the state
permittee must report violations of maximum daily discharge limitations under
4VAC50-60-430 L 7 b (3) (24-hour reporting) shall be listed in the state
permit. This list shall include any toxic pollutant or hazardous substance, or
any pollutant specifically identified as the method to control a toxic
pollutant or hazardous substance.
G. Durations for state permits, as set forth in
4VAC50-60-480.
H. Monitoring requirements. The following monitoring
requirements:
1. Requirements concerning the proper use, maintenance, and
installation, when appropriate, of monitoring equipment or methods (including
biological monitoring methods when appropriate);
2. Required monitoring including type, intervals, and
frequency sufficient to yield data that are representative of the monitored
activity including, when appropriate, continuous monitoring;
3. Applicable reporting requirements based upon the impact of
the regulated activity and as specified in 4VAC50-60-430 and in subdivisions 5
through 8 of this subsection. Reporting shall be no less frequent than
specified in the above regulation;
4. To assure compliance with state permit limitations,
requirements to monitor:
a. The mass (or other measurement specified in the state
permit) for each pollutant limited in the state permit;
b. The volume of effluent discharged from each outfall;
c. Other measurements as appropriate including pollutants;
frequency, rate of discharge, etc., for noncontinuous discharges; pollutants
subject to notification requirements; or as determined to be necessary on a
case-by-case basis pursuant to the Stormwater Management Act, the State Water Control
Law, and § 405(d)(4) of the CWA; and
d. According to test procedures approved under 40 CFR Part 136
(2000) for the analyses of pollutants having approved methods under that part,
or alternative EPA approved methods, and according to a test procedure
specified in the state permit for pollutants with no approved methods;
5. Except as provided in subdivisions 7 and 8 of this
subsection, requirements to report monitoring results shall be established on a
case-by-case basis with a frequency dependent on the nature and effect of the
discharge, but in no case less that once a year;
6. Requirements to report monitoring results for stormwater
discharges associated with industrial activity that are subject to an effluent
limitation guideline shall be established on a case-by-case basis with a
frequency dependent on the nature and effect of the discharge, but in no case
less than once a year;
7. Requirements to report monitoring results for stormwater
discharges (other than those addressed in subdivision 6 of this subsection)
shall be established on a case-by-case basis with a frequency dependent on the
nature and effect of the discharge. At a minimum, a state permit for
such a discharge must require:
a. The discharger to conduct an annual inspection of the facility
site to identify areas contributing to a stormwater discharge and evaluate
whether measures to reduce pollutant loading identified in a stormwater
pollution prevention plan are adequate and properly implemented in accordance
with the terms of the state permit or whether additional control
measures are needed;
b. The discharger to maintain for a period of three years a
record summarizing the results of the inspection and a certification that the
facility is in compliance with the plan and the state permit, and
identifying any incidents of noncompliance;
c. Such report and certification be signed in accordance with
4VAC50-60-370; and
8. Permits State permits which do not require
the submittal of monitoring result reports at least annually shall require that
the state permittee report all instances of noncompliance not reported
under 4VAC50-60-430 L 1, 4, 5, 6, and 7 at least annually.
I. Best management practices to control or abate the
discharge of pollutants when:
1. Authorized under § 402(p) of the CWA for the control of
stormwater discharges;
2. Numeric effluent limitations are infeasible; or
3. The practices are reasonably necessary to achieve effluent
limitations and standards or to carry out the purposes and intent of the
Stormwater Management Act, the State Water Control Law, and the CWA.
J. Reissued state permits.
1. In the case of effluent limitations established on the
basis of § 402(a)(1)(B) of the CWA, a state permit may not be renewed,
reissued, or modified on the basis of effluent guidelines promulgated under § 304(b)
of the CWA subsequent to the original issuance of such state permit, to
contain effluent limitations that are less stringent than the comparable
effluent limitations in the previous state permit. In the case of effluent
limitations established on the basis of § 301(b)(1)(C) or § 303(d) or (e) of
the CWA, a state permit may not be renewed, reissued, or modified to
contain effluent limitations that are less stringent than the comparable
effluent limitations in the previous state permit except in compliance
with § 303(d)(4) of the CWA.
2. Exceptions. A state permit with respect to which
subdivision 1 of this subsection applies may be renewed, reissued, or modified
to contain a less stringent effluent limitation applicable to a pollutant, if:
a. Material and substantial alterations or additions to the
permitted facility occurred after permit issuance that justify the application
of a less stringent effluent limitation;
b. (1) Information is available that was not available at the
time of state permit issuance (other than revised regulations, guidance,
or test methods) and that would have justified the application of a less
stringent effluent limitation at the time of state permit issuance; or
(2) The board determines that technical mistakes or mistaken
interpretations of the Act were made in issuing the state permit under §
402(a)(1)(B) of the CWA;
c. A less stringent effluent limitation is necessary because
of events over which the state permittee has no control and for which
there is no reasonably available remedy;
d. The state permittee has received a state
permit modification under the Stormwater Management Act, the State Water
Control Law, and §§ 301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or § 316(a)
of the CWA; or
e. The state permittee has installed the treatment
facilities required to meet the effluent limitations in the previous state
permit and has properly operated and maintained the facilities but has
nevertheless been unable to achieve the previous effluent limitations, in which
case the limitations in the reviewed, reissued, or modified state permit
may reflect the level of pollutant control actually achieved (but shall not be
less stringent than required by effluent guidelines in effect at the time of state
permit renewal, reissuance, or modification).
Subdivision 2 b of this subsection shall not apply to any
revised waste load allocations or any alternative grounds for translating water
quality standards into effluent limitations, except where the cumulative effect
of such revised allocations results in a decrease in the amount of pollutants
discharged into the concerned waters, and such revised allocations are not the
result of a discharger eliminating or substantially reducing its discharge of
pollutants due to complying with the requirements of the Act or the CWA or for
reasons otherwise unrelated to water quality.
3. In no event may a state permit with respect to which
subdivision 2 of this subsection applies be renewed, reissued, or modified to
contain an effluent limitation that is less stringent than required by effluent
guidelines in effect at the time the state permit is renewed, reissued,
or modified. In no event may such a state permit to discharge into
waters be renewed, issued, or modified to contain a less stringent effluent
limitation if the implementation of such limitation would result in a violation
of a Virginia water quality standard applicable to such waters.
K. Navigation. Any conditions that the Secretary of the Army
considers necessary to ensure that navigation and anchorage will not be
substantially impaired in accordance with 4VAC50-60-570.
L. Qualifying state, tribal, or local programs.
1. For stormwater discharges associated with small
construction activity identified in 4VAC50-60-10, the board may include state
permit conditions that incorporate qualifying state, tribal, or local erosion
and sediment control program requirements by reference. Where a qualifying
state, tribal, or local program does not include one or more of the elements in
this subdivision, then the board must include those elements as conditions in
the state permit. A qualifying state, tribal, or local erosion and
sediment control program is one that includes:
a. Requirements for construction site operators to implement
appropriate erosion and sediment control best management practices;
b. Requirements for construction site operators to control
waste such as discarded building materials, concrete truck washout, chemicals,
litter, and sanitary waste at the construction site that may cause adverse
impacts to water quality;
c. Requirements for construction site operators to develop and
implement a stormwater pollution prevention plan. A stormwater pollution
prevention plan includes site descriptions; descriptions of appropriate control
measures; copies of approved state, tribal or local requirements; maintenance
procedures; inspection procedures; and identification of nonstormwater
discharges; and
d. Requirements to submit a site plan for review that
incorporates consideration of potential water quality impacts.
2. For stormwater discharges from construction activity that
does not meet the definition of a small construction activity, the board may
include state permit conditions that incorporate qualifying state,
tribal, or local erosion and sediment control program requirements by
reference. A qualifying state, tribal or local erosion and sediment control
program is one that includes the elements listed in subdivision 1 of this
subsection and any additional requirements necessary to achieve the applicable
technology-based standards of "best available technology" and
"best conventional technology" based on the best professional
judgment of the state permit writer.
4VAC50-60-470. Calculating VSMP state permit
conditions.
A. Permit State permit effluent limitations,
monitoring requirements, standards and prohibitions shall be established for
each outfall or discharge point of the permitted facility, except as otherwise
provided under 4VAC50-60-460.
B. All state permit effluent limitations, standards,
or prohibitions for a metal shall be expressed in terms of total recoverable
metal as defined in 40 CFR Part 136 (2000) unless:
1. An applicable effluent standard or limitation has been
promulgated under the CWA and specifies the limitation for the metal in the
dissolved or valent or total form; or
2. In establishing state permit limitations on a
case-by-case basis under 40 CFR 125.3 (2000), it is necessary to express the
limitation on the metal in the dissolved or valent or total form to carry out
the provisions of the CWA, Stormwater Management Act and the State Water
Control Law; or
3. All approved analytical methods for the metal inherently
measure only its dissolved form (e.g., hexavalent chromium).
C. Discharges that are not continuous, as defined in
4VAC50-60-10, shall be particularly described and limited, considering the
following factors, as appropriate:
1. Frequency;
2. Total mass;
3. Maximum rate of discharge of pollutants during the
discharge; and
4. Prohibition or limitation of specified pollutants by mass,
concentration, or other appropriate measure.
D. Mass Limitations.
1. All pollutants limited in state permits shall have
limitations, standards or prohibitions expressed in terms of mass except:
a. For pH, temperature, radiation, or other pollutants that
cannot appropriately be expressed by mass;
b. When applicable standards and limitations are expressed in
terms of other units of measurement; or
c. If in establishing technology-based state permit
limitations on a case-by-case basis, limitations expressed in terms of mass are
infeasible because the mass of the pollutant discharged cannot be related to a
measure of operation (for example, discharges of TSS from certain mining
operations), and state permit conditions ensure that dilution will not
be used as a substitute for treatment.
2. Pollutants limited in terms of mass additionally may be
limited in terms of other units of measurement, and the state permit
shall require the state permittee to comply with both limitations.
4VAC50-60-480. Duration of state permits.
A. VSMP State permits shall be effective for a
fixed term not to exceed five years.
B. Except as provided in 4VAC50-60-330, the term of a state
permit shall not be extended by modification beyond the maximum duration
specified in this section.
C. The board may issue any state permit for a duration
that is less than the full allowable term under this section.
D. A state permit may be issued to expire on or after
the statutory deadline set forth in §§ 301(b)(2) (A), (C), and (E) of the CWA,
if the state permit includes effluent limitations to meet the
requirements of §§ 301(b)(2) (A), (C), (D), (E) and (F) of the CWA, whether or
not applicable effluent limitations guidelines have been promulgated or
approved.
4VAC50-60-490. Schedules of compliance.
A. The state permit may, when appropriate, specify a
schedule of compliance leading to compliance with the Act, the CWA and
regulations.
1. Any schedules of compliance under this section shall
require compliance as soon as possible, but not later than the applicable
statutory deadline under the CWA.
2. The first VSMP state permit issued to a new
source or a new discharger shall contain a schedule of compliance only when
necessary to allow a reasonable opportunity to attain compliance with
requirements issued or revised after commencement of construction but less than
three years before commencement of the relevant discharge. For recommencing
dischargers, a schedule of compliance shall be available only when necessary to
allow a reasonable opportunity to attain compliance with requirements issued or
revised less than three years before recommencement of discharge.
3. Schedules of compliance may be established in state
permits for existing sources that are reissued or modified to contain new or
more restrictive water quality-based effluent limitations. The schedule may
allow a reasonable period of time, not to exceed the term of the state
permit, for the discharger to attain compliance with the water quality-based
limitations.
4. Except as provided in subdivision B 1 b of this section, if
a state permit establishes a schedule of compliance that exceeds one
year from the date of state permit issuance, the schedule shall set
forth interim requirements and the dates for their achievement.
a. The time between interim dates shall not exceed one year.
b. If the time necessary for completion of any interim
requirement is more than one year and is not readily divisible into stages for completion,
the state permit shall specify interim dates for the submission of
reports of progress toward completion of the interim requirements and indicate
a projected completion date.
5. The state permit shall be written to require that no
later than 14 days following each interim date and the final date of
compliance, the state permittee shall notify the department in writing
of its compliance or noncompliance with the interim or final requirements, or
submit progress reports if subdivision 4 b of this subsection is applicable.
B. A VSMP state permit applicant or state
permittee may cease conducting regulated activities (by terminating of direct
discharge for VSMP sources) rather than continuing to operate and meet state
permit requirements as follows:
1. If the state permittee decides to cease conducting
regulated activities at a given time within the term of a state permit
that has already been issued:
a. The state permit may be modified to contain a new or
additional schedule leading to timely cessation of activities; or
b. The state permittee shall cease conducting permitted
activities before noncompliance with any interim or final compliance schedule
requirement already specified in the state permit;
2. If the decision to cease conducting regulated activities is
made before issuance of a state permit whose term will include the
termination date, the state permit shall contain a schedule leading to
termination which will ensure timely compliance with applicable requirements no
later than the statutory deadline;
3. If the state permittee is undecided whether to cease
conducting regulated activities, the board may issue or modify a state
permit to contain two schedules as follows:
a. Both schedules shall contain an identical interim deadline
requiring a final decision on whether to cease conducting regulated activities
no later than a date that ensures sufficient time to comply with applicable
requirements in a timely manner if the decision is to continue conducting
regulated activities;
b. One schedule shall lead to timely compliance with
applicable requirements no later than the statutory deadline;
c. The second schedule shall lead to cessation of regulated
activities by a date that will ensure timely compliance with applicable
requirements no later than the statutory deadline; and
d. Each state permit containing two schedules shall
include a requirement that after the state permittee has made a final
decision under subdivision 3 a of this subsection it shall follow the schedule
leading to compliance if the decision is to continue conducting regulated
activities, and follow the schedule leading to termination if the decision is
to cease conducting regulated activities; and
4. The state permit applicant's or state
permittee's decision to cease conducting regulated activities shall be
evidenced by a firm public commitment satisfactory to the board, such as a
resolution of the board of directors of a corporation.
Part IX
Public Involvement
4VAC50-60-500. Draft state permits.
A. Once an application is complete, the board shall
tentatively decide whether to prepare a draft state permit or to deny
the application.
B. If the board tentatively decides to deny the state
permit application, the owner shall be advised of that decision and of the
changes necessary to obtain approval. The owner may withdraw the application
prior to board action. If the application is not withdrawn or modified to
obtain the tentative approval to issue, the board shall provide public notice
and opportunity for a public hearing prior to board action on the application.
C. If the board tentatively decides to issue a VSMP
general permit, a draft general permit shall be prepared under subsection D of
this section.
D. If the board decides to prepare a draft state
permit, the draft state permit shall contain the following information:
1. All conditions under 4VAC50-60-430 and 4VAC50-60-450;
2. All compliance schedules under 4VAC50-60-490;
3. All monitoring requirements under 4VAC50-60-460; and
4. Effluent limitations, standards, prohibitions and
conditions under 4VAC50-60-430, 4VAC50-60-440, and 4VAC50-60-460, and all
variances that are to be included.
4VAC50-60-510. Statement of basis.
A statement of basis shall be prepared for every draft state
permit for which a fact sheet under 4VAC50-60-520 is not prepared. The
statement of basis shall briefly describe the derivation of the conditions of
the draft state permit and the reasons for them or, in the case of
notices of intent to deny or terminate, reasons supporting the tentative
decision. The statement of basis shall be sent to the state permit
applicant and, on request, to any other person.
4VAC50-60-520. Fact sheet.
A. A fact sheet shall be prepared for every draft state
permit for a major VSMP facility or activity, for every VSMP
general permit, for every VSMP draft state permit that
incorporates a variance or requires an explanation under subsection B 8 of this
section, and for every draft state permit that the board finds is the
subject of wide-spread public interest or raises major issues. The fact sheet
shall briefly set forth the principal facts and the significant factual, legal,
methodological and policy questions considered in preparing the draft state
permit. The board shall send this fact sheet to the state permit
applicant and, on request, to any other person.
B. The fact sheet shall include, when applicable:
1. A brief description of the type of facility or activity
that is the subject of the draft state permit;
2. The type and quantity of wastes, fluids, or pollutants that
are proposed to be or are being treated, stored, disposed of, injected,
emitted, or discharged;
3. A brief summary of the basis for the draft state
permit conditions including references to applicable statutory or regulatory
provisions;
4. Reasons why any requested variances or alternatives to
required standards do or do not appear justified;
5. A description of the procedures for reaching a final
decision on the draft state permit including:
a. The beginning and ending dates of the comment period for
the draft state permit and the address where comments will be received;
b. Procedures for requesting a public hearing and the nature
of that hearing; and
c. Any other procedures by which the public may participate in
the final decision;
6. Name and telephone number of a person to contact for
additional information;
7. Any calculations or other necessary explanation of the
derivation of specific effluent limitations and conditions or standards for
sewage sludge use or disposal, including a citation to the applicable effluent
limitation guideline, performance standard, or standard for sewage sludge use
or disposal and reasons why they are applicable or an explanation of how the
alternate effluent limitations were developed;
8. When the draft state permit contains any of the
following conditions, an explanation of the reasons why such conditions are
applicable:
a. Limitations to control toxic pollutants;
b. Limitations on indicator pollutants;
c. Technology-based limitations set on a case-by-case basis;
d. Limitations to meet the criteria for state permit
issuance under 4VAC50-60-310; or
e. Waivers from monitoring requirements granted under
4VAC50-60-460 A; and
9. When appropriate, a sketch or detailed description of the
location of the discharge or regulated activity described in the application.
4VAC50-60-530. Public notice of state permit actions and
public comment period.
A. Scope.
1. The board shall give public notice that the following
actions have occurred:
a. A draft state permit has been prepared under
4VAC50-60-500D;
b. A public hearing has been scheduled under 4VAC50-60-550; or
c. A VSMP new source determination has been made under
4VAC50-60-420.
2. No public notice is required when a request for state
permit modification, revocation and reissuance, or termination is denied under
4VAC50-60-610 B. Written notice of that denial shall be given to the requester
and to the state permittee. Public notice shall not be required for
submission or approval of plans and specifications or conceptual engineering
reports not required to be submitted as part of the application.
3. Public notices may describe more than one state
permit or state permit actions.
B. Timing.
1. Public notice of the preparation of a draft state
permit required under subsection A of this section shall allow at least 30 days
for public comment.
2. Public notice of a public hearing shall be given at least
30 days before the hearing. (Public notice of the hearing may be given at the
same time as public notice of the draft state permit and the two notices
may be combined.)
C. Methods. Public notice of activities described in
subdivision A 1 of this section shall be given by the following methods:
1. By mailing a copy of a notice to the following persons (any
person otherwise entitled to receive notice under this subdivision may waive
his rights to receive notice for any classes and categories of permits):
a. The state permit applicant (except for VSMP
general permits when there is no state permit applicant);
b. Any other agency that the board knows has issued or is
required to issue a VPDES permit;
c. Federal and state agencies with jurisdiction over fish,
shellfish, and wildlife resources and over coastal zone management plans, the
Advisory Council on Historic Preservation, State Historic Preservation
Officers, including any affected states (Indian Tribes);
d. Any state agency responsible for plan development under §
208(b)(2), 208(b)(4) or § 303(e) of the CWA and the U.S. Army Corps of
Engineers, the U.S. Fish and Wildlife Service and the National Marine Fisheries
Service;
e. Persons on a mailing list developed by:
(1) Including those who request in writing to be on the list;
(2) Soliciting persons for area lists from participants in
past state permit proceedings in that area; and
(3) Notifying the public of the opportunity to be put on the
mailing list through periodic publication in the public press, and in such
publications as EPA regional and state funded newsletters, environmental
bulletins, or state law journals. (The board may update the mailing list from
time to time by requesting written indication of continued interest from those
listed. The board may delete from the list the name of any person who fails to
respond to such a request.);
f. (1) Any unit of local government having jurisdiction over
the area where the facility is proposed to be located; and
(2) Each state agency having any authority under state law
with respect to the construction or operation of such facility;
2. By publication once a week for two successive weeks in a
newspaper of general circulation in the area affected by the discharge. The
cost of public notice shall be paid by the owner; and
3. Any other method reasonably calculated to give actual
notice of the action in question to the persons potentially affected by it,
including press releases or any other forum or medium to elicit public
participation.
D. Contents.
1. All public notices issued under this part shall contain the
following minimum information:
a. Name and address of the office processing the state
permit action for which notice is being given;
b. Name and address of the state permittee or state
permit applicant and, if different, of the facility or activity regulated by
the state permit, except in the case of VSMP draft general
permits;
c. A brief description of the business conducted at the
facility or activity described in the state permit application or the
draft state permit, for VSMP general permits when there is no
application;
d. Name, address and telephone number of a person from whom
interested persons may obtain further information, including copies of the
draft state permit or draft general permit, as the case may be,
statement of basis or fact sheet, and the application;
e. A brief description of the procedures for submitting
comments and the time and place of any public hearing that will be held, including
a statement of procedures to request a public hearing (unless a hearing has
already been scheduled) and other procedures by which the public may
participate in the final state permit decision;
f. A general description of the location of each existing or
proposed discharge point and the name of the receiving water. For draft general
permits, this requirement will be satisfied by a map or description of the state
permit area; and
g. Any additional information considered necessary or proper.
2. In addition to the general public notice described in
subdivision 1 of this subsection, the public notice of a public hearing under
4VAC50-60-550 shall contain the following information:
a. Reference to the date of previous public notices relating
to the state permit;
b. Date, time, and place of the public hearing;
c. A brief description of the nature and purpose of the public
hearing, including the applicable rules and procedures; and
d. A concise statement of the issues raised by the persons
requesting the public hearing.
E. In addition to the general public notice described in
subdivision D 1 of this section, all persons identified in subdivisions C 1 a
through 1 d of this section shall be mailed a copy of the fact sheet or
statement of basis, the state permit application (if any) and the draft state
permit (if any).
4VAC50-60-540. Public comments and requests for public
hearings.
During the public comment period provided under
4VAC50-60-530, any interested person may submit written comments on the draft state
permit and may request a public hearing, if no public hearing has already been
scheduled. A request for a public hearing shall be in writing and shall state
the nature of the issues proposed to be raised in the public hearing. All
comments shall be considered in making the final decision and shall be answered
as provided in 4VAC50-60-560.
4VAC50-60-550. Public hearings.
A. 1. The board shall hold a public hearing whenever it
finds, on the basis of requests, a significant degree of public interest in a
draft state permit or state permits.
2. The board may also hold a public hearing at its discretion,
whenever, for instance, such a hearing might clarify one or more issues
involved in the state permit decision.
3. Public notice of the public hearing shall be given as
specified in 4VAC50-60-530 of this chapter.
4. Any public hearing convened pursuant to this section shall
be held in the geographical area of the proposed discharge, or in another
appropriate area. Related groups of state permit applications may be
considered at any such public hearing.
B. Any person may submit oral or written statements and data
concerning the draft state permit. Reasonable limits may be set upon the
time allowed for oral statements, and the submission of statements in writing
may be required. The public comment period for the draft state permit
shall automatically be extended to the close of any public hearing under this
section. The hearing officer may also extend the comment period by so stating
at the public hearing.
C. A tape recording or written transcript of the hearing
shall be made available to the public.
4VAC50-60-560. Response to comments.
A. At the time that a final state permit is issued,
the board shall issue a response to comments. This response shall:
1. Specify which provisions, if any, of the draft state
permit have been changed in the final state permit decision, and the
reasons for the change; and
2. Briefly describe and respond to all significant comments on
the draft state permit raised during the public comment period, or
during any public hearing.
B. The response to comments shall be available to the public.
4VAC50-60-570. Conditions requested by the Corps of Engineers
and other government agencies.
A. If during the comment period for an VSMP a
draft state permit, the district engineer advises the department in
writing that anchorage and navigation of any of the waters of the United States
would be substantially impaired by the granting of a state permit, the state
permit shall be denied and the state permit applicant so notified. If
the district engineer advised the department that imposing specified conditions
upon the state permit is necessary to avoid any substantial impairment
of anchorage or navigation, then the board shall include the specified
conditions in the state permit. Review or appeal of denial of a state
permit or of conditions specified by the district engineer shall be made
through the applicable procedures of the Corps of Engineers, and may not be
made through the procedures provided in this part. If the conditions are stayed
by a court of competent jurisdiction or by applicable procedures of the Corps
of Engineers, those conditions shall be considered stayed in the VSMP state
permit for the duration of that stay.
B. If during the comment period the U.S. Fish and Wildlife
Service, the National Marine Fisheries Service, or any other state or federal
agency with jurisdiction over fish, wildlife, or public health advises the
department in writing that the imposition of specified conditions upon the state
permit is necessary to avoid substantial impairment of fish, shellfish, or
wildlife resources, the board may include the specified conditions in the state
permit to the extent they are determined necessary to carry out the provisions
of this regulation, the Act and of the CWA.
C. In appropriate cases the board may consult with one or
more of the agencies referred to in this section before issuing a draft state
permit and may reflect their views in the statement of basis, the fact sheet,
or the draft state permit.
4VAC50-60-580. Decision on variances.
A. The board may grant or deny requests for variances
requested pursuant to 4VAC50-60-360 G 4, subject to EPA objection. Decisions on
these variances shall be made according to the criteria of 40 CFR Part 125,
Subpart H (2000).
B. The board may deny, or forward to the regional
administrator with a written concurrence, or submit to EPA without
recommendation a completed request for:
1. A variance based on the economic capability of the state
permit applicant submitted pursuant to 4VAC50-60-360 G 2; or
2. A variance based on water quality related effluent
limitations submitted pursuant to 4VAC50-60-360 G 3.
C. If the EPA approves the variance, the board may prepare a
draft state permit incorporating the variance. Any public notice of a
draft state permit for which a variance or modification has been
approved or denied shall identify the applicable procedures for appealing that
decision.
D. The board may deny or forward to the administrator with a
written concurrence a completed request for:
1. A variance based on the presence of fundamentally different
factors from those on which an effluent limitations guideline was based, made
according to the criteria and standards of 40 CFR Part 125, Subpart D (2000);
or
2. A variance based upon certain water quality factors
submitted pursuant to 4VAC50-60-360 G 2.
E. If the administrator approves the variance, the board may
prepare a draft state permit incorporating the variance. Any public
notice of a draft state permit for which a variance or modification has
been approved or denied shall identify the applicable procedures for appealing
that decision.
4VAC50-60-590. Appeals of variances.
When the board issues a state permit on which EPA has
made a variance decision, separate appeals of the VSMP state
permit and of the EPA variance decision are possible.
Part X
Transfer, Modification, Revocation and Reissuance, and Termination of VSMP
State Permits
4VAC50-60-610. Modification, revocation and reissuance, or
termination of state permits.
A. Permits State permits may be modified,
revoked and reissued, or terminated either at the request of any interested
person (including the state permittee) or upon the board's initiative.
When the department receives any information (for example, inspects the
facility, receives information submitted by the state permittee as
required in the state permit, receives a request for modification or
revocation and reissuance, or conducts a review of the state permit
file) it may determine whether one or more of the causes listed in this section
for modification or revocation and reissuance, or both, exist. However, state
permits may only be modified, revoked and reissued, or terminated for the reasons
specified in 4VAC50-60-630 or 4VAC50-60-650. All requests shall be in writing
and shall contain facts or reasons supporting the request. If cause does not
exist under these sections, the board shall not modify, revoke and reissue or
terminate the state permit. If a state permit modification
satisfies the criteria for minor modifications, the state permit may be
modified without a draft state permit or public review. Otherwise, a
draft state permit must be prepared and other procedures in Part IX (4VAC50-60-500
et seq.) followed.
B. If the board decides the request is not justified, it
shall send the requester a brief written response giving a reason for the
decision. Denials of requests for modification, revocation and reissuance, or
termination are not subject to public notice, comment, or public hearings.
C. 1. If the board tentatively decides to modify or revoke
and reissue a state permit, it shall prepare a draft state permit
incorporating the proposed changes. The board may request additional information
and, in the case of a modified state permit, may require the submission
of an updated application. In the case of revoked and reissued state
permits, the board shall require the submission of a new application.
2. In a state permit modification under this section,
only those conditions to be modified shall be reopened when a new draft state
permit is prepared. All other aspects of the existing state permit shall
remain in effect for the duration of the unmodified state permit. When a
state permit is revoked and reissued under this section, the entire state
permit is reopened just as if the state permit had expired and was being
reissued and the state permit is reissued for a new term. During any
revocation and reissuance proceeding the state permittee shall comply
with all conditions of the existing state permit until a new final state
permit is reissued.
3. Minor modifications as defined in 4VAC50-60-640 are not
subject to the requirements of this section.
D. If the board tentatively decides to terminate a state
permit under 4VAC50-60-650, where the state permittee objects, it shall
issue a notice of intent to terminate. A notice of intent to terminate is a
type of draft state permit that follows the same procedures as any draft
state permit.
4VAC50-60-620. Transfer of state permits.
A. Except as provided in subsection B of this section, a state
permit may be transferred by the state permittee to a new owner or
operator only if the state permit has been modified or revoked and
reissued, or a minor modification made, to identify the new state
permittee and incorporate such other requirements as may be necessary under the
Virginia Stormwater Management Act and the CWA.
B. Automatic transfers. As an alternative to transfers under
subsection A of this section, any VSMP state permit may be
automatically transferred to a new state permittee if:
1. The current state permittee notifies the department
at least 30 days in advance of the proposed transfer date in subdivision 2 of
this subsection;
2. The notice includes a written agreement between the
existing and new state permittees containing a specific date for
transfer of state permit responsibility, coverage, and liability between
them; and
3. The board does not notify the existing state
permittee and the proposed new state permittee of its intent to modify
or revoke and reissue the state permit. A modification under this
subdivision may also be a minor modification. If this notice is not received,
the transfer is effective on the date specified in the agreement mentioned in
subdivision 2 of this subsection.
4VAC50-60-630. Modification or revocation and reissuance of state
permits.
A. Causes for modification. The following are causes for
modification but not revocation and reissuance of state permits except
when the state permittee requests or agrees.
1. There are material and substantial alterations or additions
to the permitted facility or activity that occurred after state permit
issuance that justify the application of state permit conditions that
are different or absent in the existing state permit.
2. The department has received new information. Permits
State permits may be modified during their terms for this cause only if
the information was not available at the time of state permit issuance
(other than revised regulations, guidance, or test methods) and would have
justified the application of different state permit conditions at the
time of issuance. For VSMP general permits this cause includes any
information indicating that cumulative effects on the environment are
unacceptable. For new source or new discharger VSMP state permits
this cause shall include any significant information derived from effluent
testing required on the state permit application after issuance of the state
permit.
3. The standards or regulations on which the state
permit was based have been changed by promulgation of amended standards or
regulations or by judicial decision after the state permit was issued. Permits
State permits may be modified during their terms for this cause only as
follows:
a. For promulgation of amended standards or regulations, when:
(1) The state permit condition requested to be modified
was based on a promulgated effluent limitation guideline, EPA approved or
promulgated water quality standards;
(2) EPA has revised, withdrawn, or modified that portion of
the regulation or effluent limitation guideline on which the state
permit condition was based, or has approved a state action with regard to a
water quality standard on which the state permit condition was based;
and
(3) A state permittee requests modification in
accordance with this chapter within 90 days after Federal Register notice of
the action on which the request is based;
b. For judicial decisions, a court of competent jurisdiction
has remanded and stayed EPA promulgated regulations or effluent limitation
guidelines, if the remand and stay concern that portion of the regulations or
guidelines on which the state permit condition was based and a request
is filed by the state permittee in accordance with this chapter within
90 days of judicial remand; or
c. For changes based upon modified state certifications of VSMP
state permits.
4. The board determines good cause exists for modification of
a compliance schedule, such as an act of God, strike, flood, or materials
shortage or other events over which the state permittee has little or no
control and for which there is no reasonably available remedy. However, in no
case may a VSMP compliance schedule be modified to extend beyond an
applicable CWA statutory deadline.
5. When the state permittee has filed a request for a
variance pursuant to 4VAC50-60-360 G within the time specified in this chapter.
6. When required to incorporate an applicable CWA § 307(a)
toxic effluent standard or prohibition.
7. When required by the reopener conditions in a state
permit that are established under 4VAC50-60-460 B.
8. Upon failure to notify another state whose waters may be
affected by a discharge.
9. When the level of discharge of any pollutant that is not
limited in the state permit exceeds the level that can be achieved by
the technology-based treatment requirements appropriate to the state
permittee.
10. To establish a notification level as provided in
4VAC50-60-460 E.
11. To correct technical mistakes, such as errors in
calculation, or mistaken interpretations of law made in determining state
permit conditions.
12. When the discharger has installed the treatment technology
considered by the state permit writer in setting effluent limitations
imposed under the Act and § 402(a)(1) of the CWA and has properly operated
and maintained the facilities but nevertheless has been unable to achieve those
effluent limitations. In this case, the limitations in the modified state
permit may reflect the level of pollutant control actually achieved (but shall
not be less stringent than required by a subsequently promulgated effluent
limitations guideline).
13. For a small MS4, to include an effluent limitation
requiring implementation of a minimum control measure or measures as specified
in 4VAC50-60-400 D 2 when:
a. The state permit does not include such measures
based upon the determination that another entity was responsible for
implementation of the requirements; and
b. The other entity fails to implement measures that satisfy
the requirements.
B. Causes for modification or revocation and reissuance. The
following are causes to modify or, alternatively, revoke and reissue a state
permit:
1. Cause exists for termination under 4VAC50-60-650, and the
board determines that modification or revocation and reissuance is appropriate;
or
2. The department has received notification of a proposed
transfer of the state permit. A state permit also may be modified
to reflect a transfer after the effective date of an automatic transfer but
will not be revoked and reissued after the effective date of the transfer
except upon the request of the new state permittee.
4VAC50-60-640. Minor modifications of state permits.
Upon the consent of the state permittee, the board may
modify a state permit to make the corrections or allowances for changes
in the permitted activity listed in this section, without following the
procedures of Part IX of this chapter. Any state permit modification not
processed as a minor modification under this section must be made for cause and
with draft state permit and public notice. Minor modifications may only:
1. Correct typographical errors;
2. Require more frequent monitoring or reporting by the state
permittee;
3. Change an interim compliance date in a schedule of
compliance, provided the new date is not more than 120 days after the date
specified in the existing state permit and does not interfere with
attainment of the final compliance date requirement;
4. Allow for a change in ownership or operational control of a
facility where the board determines that no other change in the state
permit is necessary, provided that a written agreement containing a specific
date for transfer of state permit responsibility, coverage, and
liability between the current and new state permittees has been
submitted to the department;
5. a. Change the construction schedule for a discharger which
is a new source. No such change shall affect a discharger's obligation to have
all pollution control equipment installed and in operation prior to discharge.
b. Delete a point source outfall when the discharge from that
outfall is terminated and does not result in discharge of pollutants from other
outfalls except in accordance with state permit limits.
4VAC50-60-650. Termination of state permits.
A. The following are causes for terminating a state
permit during its term, or for denying a state permit renewal
application, after public notice and opportunity for a public hearing by the
board.
1. The state permittee has violated any regulation or
order of the board or department, any order of the permit-issuing
VSMP authority, any provision of the Virginia Stormwater Management Act
or this chapter, or any order of a court, where such violation results in the
unreasonable degradation of properties, water quality, stream channels, and
other natural resources, or the violation is representative of a pattern of
serious or repeated violations that in the opinion of the board, demonstrates
the state permittee's disregard for or inability to comply with
applicable laws, regulations, state permit conditions, orders, rules, or
requirements;
2. Noncompliance by the state permittee with any
condition of the state permit;
3. The state permittee's failure to disclose fully all
relevant material facts, or the state permittee's misrepresentation of
any relevant material facts in applying for a state permit, or in any
other report or document required under the Act or this chapter;
4. A determination that the permitted activity endangers human
health or the environment and can only be regulated to acceptable levels by state
permit modification or termination;
5. A change in any condition that requires either a temporary
or permanent reduction or elimination of any discharge controlled by the state
permit; or
6. The activity for which the state permit was issued
causes unreasonable degradation of properties, water quality, stream channels,
and other natural resources
7. There exists a material change in the basis on which the state
permit was issued that requires either a temporary or a permanent reduction or
elimination of any discharge or land-disturbing activity controlled by the state
permit necessary to prevent unreasonable degradation of properties, water
quality, stream channels, and other natural resources.
B. The board shall follow the applicable procedures in this
chapter in terminating any VSMP state permit under this section,
except that if the entire discharge is permanently terminated by elimination of
the flow or by connection to a POTW or a PVOTW (but not by land application or
disposal into a well), the board may terminate the state permit by
notice to the state permittee. Termination by notice shall be effective
30 days after notice is sent, unless the state permittee objects within
that time. If the state permittee objects during that period, the board
shall follow the applicable procedures for termination under 4VAC50-60-610 D.
Expedited state permit termination procedures are not available to state
permittees that are subject to pending state or federal enforcement actions
including citizen suits brought under state or federal law. If requesting
expedited state permit termination procedures, a state permittee
must certify that it is not subject to any pending state or federal enforcement
actions including citizen suits brought under state or federal law.
Part XI
Enforcement of VSMP State Permits
4VAC50-60-660. Enforcement.
A. The board may enforce the provisions of this chapter by:
1. Issuing directives in accordance with the Act;
2. Issuing special orders in accordance with the Act;
3. Issuing emergency special orders in accordance with the
Act;
4. Seeking injunction, mandamus or other appropriate remedy as
authorized by the Act;
5. Seeking civil penalties under the Act; or
6. Seeking remedies under the Act, the CWA or under other laws
including the common law.
B. The board encourages citizen participation in all its
activities, including enforcement. In particular:
1. The board will investigate citizen complaints and provide
written response to all signed, written complaints from citizens concerning
matters within the board's purview;
2. The board will not oppose intervention in any civil
enforcement action when such intervention is authorized by statute or Supreme
Court rule; and
3. At least 30 days prior to the final settlement of any civil
enforcement action or the issuance of any consent special order, the board will
publish public notice of such settlement or order in a newspaper of general
circulation in the county, city or town in which the discharge is located, and
in The Virginia Register of Regulations. This notice will identify the owner,
specify the enforcement action to be taken and specify where a copy of the settlement
or order can be obtained. A consent special order is a special order issued
without a public hearing and with the written consent of the affected owner.
For the purpose of this chapter, an emergency special order is not a consent
special order. The board shall consider all comments received during the
comment period before taking final action.
C. When a state permit is amended solely to reflect a
new owner, and the previous owner had been issued a consent special order that,
at the time of state permit amendment was still in full force and
effect, a consent special order issued to the new owner does not have to go to
public notice provided that:
a. The state permit amendment does not have to go to
public notice; and
b. The terms of the new consent order are the same as issued
to the previous owner.
D. Notwithstanding subdivision B 3 of this subsection, a
special order may be issued by agreement at a board meeting without further
notice when a public hearing has been scheduled to issue a special order to the
affected owner, whether or not the public hearing is actually held.
4VAC50-60-680. Transition.
Upon the effective date of this chapter the following will
occur:
1. All applications received after the effective date of this
chapter will be processed in accordance with these procedures.
2. A National Pollutant Discharge Elimination System Permit
issued by the board has the same effect as a VSMP state permit.
3. Permits State permits issued by the State
Water Control Board allowing the discharge of stormwater into state waters from
Municipal Separate Storm Sewer Systems or land-disturbing activities that have
not expired or been revoked or terminated before or on the program transfer
date to the board shall continue to remain in effect until their specified
expiration dates.
Part XIII
Fees
4VAC50-60-700. Purpose.
Sections 10.1-603.4 and 10.1-603.5 of the Code of Virginia
authorize the establishment of a statewide fee schedule, including
administrative charges for state agencies, for stormwater management for
land-disturbing activities and for municipal separate storm sewer systems. This
part establishes the fee assessment and the collection and distribution systems
for those fees. The fees associated with shall be established for
individual permits or coverage under the General Permit for Discharges of
Stormwater From Construction Activities (permits for stormwater management
for land-disturbing activities) issued by a qualifying local program or a
department-administered local stormwater management program (state
permits for stormwater management for land-disturbing activities) to cover all
costs associated with the implementation of a VSMP by a VSMP authority that
has been approved by the board shall include and by the department.
Such fee attributes include the costs associated with plan review, registration
statement review, permit review and issuance, state-coverage
verification, inspections, enforcement, program administration and
oversight, and reporting, database management, and compliance
activities associated with the land-disturbing activities as well as for
program oversight costs. Fees shall also be established for state
permit maintenance, modification, and transfer.
Fees collected pursuant to this part shall be in addition
to any general fund appropriations made to the department or other supporting
revenue from a VSMP; however, the fees shall be set at a level sufficient for
the department and the VSMP authority to fully carry out their responsibilities
under the Act, this chapter, local ordinances, or standards and specifications
where applicable.
Should When establishing a VSMP, the VSMP authority
shall assess the statewide fee schedule and shall have the authority to reduce
or increase such fees, and to consolidate such fees with other program-related
charges, but in no case shall such fee changes affect the amount established in
4VAC50-60-820 as available to the department for program oversight
responsibilities pursuant to § 10.1-603.4 A 5 a of the Code of Virginia.
Accordingly, should a qualifying local program VSMP authority
demonstrate to the board its ability to fully and successfully implement a qualifying
local program VSMP without a full implementation of the fees set out
in this part, the board may authorize the administrative establishment of a
lower fee for that program provided that such reduction shall not reduce the
amount of fees due to the department for its program oversight and shall not
affect the fee schedules set forth herein.
A qualifying local program VSMP authority may
establish greater fees than those base fees specified by this part should it be
demonstrated to the board that such greater fees are necessary to properly
administer the qualifying local program VSMP. Any fee increases
established by the qualifying local program VSMP authority beyond
those base fees established in this part shall not be subject to the fee
distribution formula set out in 4VAC50-60-780. Nothing in this part shall
prohibit a locality from establishing other local fees authorized by the Code
of Virginia related to stormwater management within their jurisdictions.
A VSMP's portion of the fees shall be used solely to carry
out the VSMP's responsibilities under the Act, this chapter, ordinances, or
annual standards and specifications.
As part of its program oversight, the department shall
periodically assess the revenue generated by both the localities VSMP
authorities and the department to ensure that the fees have been
appropriately set and the fees may be adjusted through periodic regulatory
actions should significant deviations become apparent.
4VAC50-60-730. Applicability.
A. This part applies to:
1. All persons seeking coverage of a MS4 under a new state
permit. The fee due shall be as specified under 4VAC50-60-800.
2. All operators who request that an existing MS4 individual
permit be modified, except as specifically exempt under 4VAC50-60-740. The fee
due shall be as specified under 4VAC50-60-810.
3. All persons seeking coverage under the General Permit for
Discharges of Stormwater From Construction Activities or a person seeking an
Individual Permit for Discharges of Stormwater From Construction Activities. The
fee due shall be as specified under 4VAC50-60-820.
4. All state permittees who request modifications to or
transfers of their existing registration statement for coverage under a General
Permit for Discharges of Stormwater From Construction Activities or of an
Individual Permit for Discharges of Stormwater From Construction Activities.
The fee due shall be as specified under 4VAC50-60-825 in addition to any
additional fees necessary pursuant to 4VAC50-60-820 due to an increase in
acreage.
5. Reinspection fees assessed by the department to recoup
the costs associated with each visit to a land-disturbing project site that was
necessary to check on the status of project site items noted to be in
noncompliance and documented as such on a prior project inspection. The fee due
shall be as specified under 4VAC50-60-790.
6. Business transaction costs assessed associated with
processing credit card payments.
B. Persons who are applicants for an individual VSMP
Municipal Separate Stormwater Sewer System permit as a result of existing state
permit revocation shall be considered an applicant for a new state
permit. The fee due shall be as specified under 4VAC50-60-800.
Persons whose coverage under the General Permit for
Discharges of Stormwater From Construction Activities has been revoked shall
reapply for an Individual Permit for Discharges of Stormwater From Construction
Activities. The fee due shall be as specified under 4VAC50-60-820.
C. Permit State and state permit
coverage maintenance fees may apply to each Virginia Stormwater Management
Program (VSMP) state permit holder. The fee due shall be as
specified under 4VAC50-60-830.
4VAC50-60-740. Exemptions.
A. No state permit application fees will be assessed
to:
1. Permittees State permittees who request minor
modifications to state permits as defined in 4VAC50-60-10 or other minor
amendments at the discretion of the local stormwater management program VSMP
authority.
2. Permittees State permittees whose state
permits are modified or amended at the initiative request of the permit-issuing
VSMP authority or department by the board. This does not include
errors in the registration statement identified by the local stormwater
management program VSMP authority, department, or board or errors
related to the acreage of the site.
B. Permit State permit modifications at the
request of the state permittee resulting in changes to stormwater
management plans that require additional review by the local stormwater
management program VSMP authority shall not be exempt pursuant to
this section and shall be subject to fees specified under 4VAC50-60-825.
4VAC50-60-750. Due dates for Virginia Stormwater Management
Program (VSMP) Permits state permits.
A. Requests for a state permit, state permit
modification, or general permit coverage shall not be processed until the fees
required pursuant to this part are paid in accordance with 4VAC50-60-760.
B. Individual permit or general permit coverage maintenance
fees shall be paid annually to the department or the qualifying local
program VSMP authority, as applicable, by the anniversary date of
individual permit issuance or general permit coverage. No state permit
will be reissued or automatically continued without payment of the required
fee. Individual permit or general permit coverage maintenance fees shall be
applied until a Notice of Termination is effective.
MS4 individual operators who currently pay a state
permit maintenance fee that is due by October 1 of each year shall continue to
pay the maintenance fee by October 1 until their current state permit
expires. Upon reissuance of the MS4 individual permit, maintenance fees shall
be paid on the anniversary date of the reissued state permit.
4VAC50-60-760. Method of payment.
A. Fees shall be collected utilizing, where practicable,
an online payment system. Until such system is operational, fees, as
applicable, shall be, at the discretion of the department, submitted
electronically or be paid by check, draft or postal money order payable to:
1. The Treasurer of Virginia, for a MS4 individual or general
permit or for a coverage issued by the department under the General Permit for
Discharges of Stormwater From Construction Activities or Individual Permit for
Discharges of Stormwater From Construction Activities, and must be in U.S. currency,
except that agencies and institutions of the Commonwealth of Virginia may
submit Interagency Transfers for the amount of the fee. The Department of
Conservation and Recreation may provide a means to pay fees electronically.
Fees not submitted electronically shall be sent to the following address until
December 31, 2012:
Virginia Department of Conservation and Recreation
Division of Finance, Accounts Payable
203 Governor Street
Richmond, VA 23219
Fees not submitted electronically shall be sent to the following
address after December 31, 2012:
Virginia Department of Conservation and Recreation
Division of Finance, Accounts Payable
600 East Main Street
24th Floor
Richmond, VA 23219
2. The qualifying local program VSMP authority,
for coverage authorized by VSMP operational costs of the qualifying
local program VSMP authority under the General Permit for Discharges
of Stormwater From Construction Activities, and must be in U.S. currency.
B. When fees are collected electronically pursuant to this
part through credit cards, business transaction costs associated with
processing such payments may be additionally assessed.
C. Required information for state permits or state
permit coverage: All applicants, unless otherwise specified by the department,
shall submit the following information along with the fee payment or utilize
the Department of Conservation and Recreation Permit Application Fee Form:
1. Applicant name, address and daytime phone number.
2. Applicant Federal Identification Number (FIN), if applicable.
3. The name of the facility/activity, and the
facility/activity location.
4. The type of state permit applied for.
5. Whether the application is for a new state permit
issuance, state permit reissuance, state permit maintenance, or state
permit modification.
6. The amount of fee submitted.
7. The existing state permit number, if applicable.
8. Other information as required by the local stormwater
management program VSMP authority.
4VAC50-60-770. Incomplete payments and late payments.
All incomplete payments will be deemed as nonpayments. The
department or the qualifying local program VSMP authority, as
applicable, shall provide notification to the state applicant of any
incomplete payments.
Interest may be charged for late payments at the underpayment
rate set forth in § 58.1-15 of the Code of Virginia and is calculated on a
monthly basis at the applicable periodic rate.
A 10% late payment fee shall be charged to any delinquent
(over 90 days past due) account.
The department and the qualifying local program VSMP
authority are entitled to all remedies available under the Code of Virginia
in collecting any past due amount.
4VAC50-60-780. Deposit and use of fees.
A. All fees collected by the department or board pursuant to
this chapter shall be deposited into the Virginia Stormwater Management Fund
and shall be used and accounted for as specified in § 10.1-603.4:1 of the
Code of Virginia. Fees collected by the department or board shall be exempt
from statewide indirect costs charged and collected by the Department of
Accounts.
B. All fees collected by a qualifying local program VSMP
authority pursuant to this chapter shall be subject to accounting review
and shall be used solely to carry out the qualifying local program's VSMP
authority's responsibilities pursuant to the Act, Part II and Part
III A of this chapter, local ordinances, or annual standards and
specifications.
Pursuant to subdivision 5 a of § 10.1-603.4 of the Code
of Virginia, whenever the board has authorized the administration of a stormwater
management program VSMP by a qualifying local program VSMP
authority, 28% of the total revenue generated by the statewide stormwater
management fees collected within the locality in accordance with
4VAC50-60-820 shall be remitted on a monthly basis schedule
determined by the department to the State Treasurer for deposit in the
Virginia Stormwater Management Fund unless otherwise collected electronically.
If the qualifying local program VSMP authority waives or reduces
any fee due in accordance with 4VAC50-60-820, the qualifying local program
VSMP authority shall remit the 28% portion that would be due to the
Virginia Stormwater Management Fund if such fee were charged in full. Any fee
increases established by the qualifying local program VSMP authority
beyond the base fees established in this part shall not be subject to the fee
distribution formula.
4VAC50-60-790. General.
A. The fees for individual permits, general permit
coverage, state permit or registration statement modification, or state
permit transfers are considered separate actions and shall be assessed a
separate fee, as applicable.
B. Until July 1, 2014, the department is authorized to
assess a $125 reinspection fee for each visit to a project site that was
necessary to check on the status of project site items noted to be in
noncompliance and documented as such on a prior project inspection.
4VAC50-60-800. Fee schedules for VSMP Municipal Separate
Storm Sewer System new state permit issuance.
The following fee schedule applies to state permit
applications for issuance of a new individual VSMP Municipal Separate
Storm Sewer System permit or coverage under a MS4 General Permit. All regulated
MS4s that apply for joint coverage under an individual permit or general permit
registration shall each pay the appropriate fees set out below.
|
VSMP Municipal Stormwater / MS4 Individual (Large and
Medium)
|
$16,000
|
|
VSMP Municipal Stormwater / MS4 Individual (Small)
|
$8,000
|
|
VSMP Municipal Stormwater / MS4 General Permit (Small)
|
$4,000
|
4VAC50-60-810. Fee schedules for major modification of MS4
individual permits requested by the operator.
The following fee schedule applies to state
applications for major modification of an individual MS4 permit requested by
the state permittee:
|
VSMP Municipal Stormwater / MS4 Individual (Large and
Medium)
|
$5,000
|
|
VSMP Municipal Stormwater / MS4 Individual (Small)
|
$2,500
|
4VAC50-60-820. Fees for an individual permit or coverage under
the General Permit for Discharges of Stormwater from Construction Activities.
The following fees apply to coverage under the General Permit
for Discharges of Stormwater from Construction Activities issued by the
department prior to a qualifying local program or a department-administered
local stormwater management program VSMP authority being approved by
the board in the area where the applicable land-disturbing activity is located,
or where the department has issued an individual permit or coverage under the
General Permit for Discharges of Stormwater from Construction Activities for a
state or federal agency for which it has approved annual standards and
specifications.
|
VSMP General / Stormwater Management - Phase I Land
Clearing (“Large” Construction Activity - Sites or common plans of
development equal to or greater than five acres)
|
$500 $750
|
|
VSMP General / Stormwater Management - Phase II Land
Clearing ("Small" Construction Activity - Sites or common plans of
development equal to or greater than one acre and less than five acres)
|
$300 $450
|
|
VSMP General / Stormwater Management - Small Construction
Activity/Land Clearing (Sites within designated areas of Chesapeake Bay Act
localities with land disturbance acreage equal to or greater than 2,500
square feet and less than one acre) (Fee valid until July 1, 2014)
|
$200
|
The following fees apply to coverage under the General Permit
for Discharges of Stormwater from Construction Activities for a state or
federal agency that does not file annual standards and specifications, or
an individual permit issued by the board or coverage under the General
Permit for Discharges of Stormwater from Construction Activities issued by a
qualifying local program, or a department-administered local stormwater
management program that has been approved by the board. For coverage under
the General Permit for Discharges of Stormwater from Construction Activities,
no more than 50% of the base fee set out in this part shall be due at the time
that a stormwater management plan or an initial stormwater management plan is
submitted for review in accordance with 4VAC50-60-108. The remaining base fee
balance shall be due prior to the issuance of coverage under the General Permit
for Discharges of Stormwater from Construction Activities.
When a site or sites are purchased for development within a
previously permitted common plan of development or sale, the applicant shall be
subject to fees ("total fee to be paid by applicant" column) in
accordance with the disturbed acreage of their site or sites according to the
following table.
|
Fee type
|
Total fee to be paid by applicant (includes both VSMP authority and
department portions where applicable)
|
Department portion of "total fee to be paid by applicant"
(based on 28% of total fee paid *)
|
|
Chesapeake Bay Preservation
Act Land-Disturbing Activity (not subject to General Permit coverage; sites
within designated areas of Chesapeake Bay Act localities with
land-disturbance acreage equal to or greater than 2,500 square feet and less
than 1 acre)
|
$290
|
$0
|
|
VSMP General / Stormwater
Management - Small Construction Activity/Land Clearing (Sites within
designated areas of Chesapeake Bay Act localities with land-disturbance
acreage equal to or greater than 2,500 square feet and less than 0.5 acre)
|
$290
|
|
|
VSMP General / Stormwater Management - Small Construction
Activity/Land Clearing (Areas within common plans of development or sale with
land-disturbance acreage less than one acre)
|
$290
|
$81
|
|
VSMP General / Stormwater
Management - Small Construction Activity/Land Clearing (Sites within
designated areas of Chesapeake Bay Act localities with land-disturbance
acreage equal to or greater than 0.5 acre and less than one acre)
|
$1,500
|
|
|
VSMP General / Stormwater Management - Small Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater than one acre and less
than five acres)
|
$2,700
|
$756
|
|
VSMP General / Stormwater Management - Large Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater than five acres and
less than 10 acres)
|
$3,400
|
$952
|
|
VSMP General / Stormwater Management - Large Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater than 10 acres and less
than 50 acres)
|
$4,500
|
$1,260
|
|
VSMP General / Stormwater Management - Large Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater than 50 acres and less
than 100 acres)
|
$6,100
|
$1,708
|
|
VSMP General / Stormwater
Management - Large Construction Activity/Land Clearing (Sites or areas within
common plans of development or sale with land-disturbance acreage equal to or
greater than 100 acres)
|
$9,600
|
$2,688
|
|
VSMP Individual Permit for Discharges of Stormwater From
Construction Activities (This will be administered by the department)
|
$15,000
|
$15,000
|
* If the project is completely administered by the
department such as may be the case for a state or federal project or projects
covered by individual permits, the entire applicant fee shall be paid to the
department.
4VAC50-60-825. Fees for the modification or transfer of
individual permits or of registration statements for the General Permit for
Discharges of Stormwater from Construction Activities.
The following fees apply to modification or transfer of
individual permits or of registration statements for the General Permit for
Discharges of Stormwater from Construction Activities issued by a qualifying
local program or a department-administered local stormwater management program
that has been approved by the board. If the state permit
modifications result in changes to stormwater management plans that require
additional review by the local stormwater management program VSMP
authority, such reviews shall be subject to the fees set out in this
section. The fee assessed shall be based on the total disturbed acreage of the
site. In addition to the state permit modification fee, modifications
resulting in an increase in total disturbed acreage shall pay the difference in
the initial state permit fee paid and the state permit fee that
would have applied for the total disturbed acreage in 4VAC50-60-820. No
modification or transfer fee shall be required until such board-approved
programs exist. No modification fee shall be required for the General Permit
for Discharges of Stormwater from Construction Activities for a state or
federal agency that is administering a project in accordance with approved
annual standards and specifications but shall apply to all other state or
federal agency projects.
|
VSMP General / Stormwater Management – Small Construction
Activity/Land Clearing (Sites within designated areas of Chesapeake Bay Act
localities with land-disturbance acreage equal to or greater than 2,500
square feet and less than 0.5 acre)
|
$20
|
|
VSMP General / Stormwater Management – Small Construction
Activity/Land Clearing (Areas within common plans of development or sale with
land disturbance acreage less than one acre)
|
$20
|
|
VSMP General / Stormwater
Management – Small Construction Activity/Land Clearing (Sites within
designated areas of Chesapeake Bay Act localities with land-disturbance
acreage equal to or greater than 0.5 acre and less than one acre)
|
$100
|
|
VSMP General / Stormwater Management – Small Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater than one and less than
five acres)
|
$200
|
|
VSMP General / Stormwater Management – Large Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater than five acres and
less than 10 acres)
|
$250
|
|
VSMP General / Stormwater Management – Large Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater than 10 acres and less
than 50 acres)
|
$300
|
|
VSMP General / Stormwater Management – Large Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater than 50 acres and less
than 100 acres)
|
$450
|
|
VSMP General / Stormwater Management – Large Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater than 100 acres)
|
$700
|
|
VSMP Individual Permit for Discharges of Stormwater From
Construction Activities
|
$5,000
|
4VAC50-60-830. Permit State permit maintenance
fees.
The following annual permit maintenance fees apply to each VSMP
state permit identified below, including expired state permits
that have been administratively continued. With respect to the General Permit
for Discharges of Stormwater from Construction Activities, these fees shall
apply until the state permit coverage is terminated, and shall only be
effective when assessed by a qualifying local program or a
department-administered local stormwater management program VSMP
authority including the department when acting in that capacity that has
been approved by the board. No maintenance fee shall be required for a General
Permit for Discharges of Stormwater from Construction Activities until such
board approved programs exist. No maintenance fee shall be required for the
General Permit for Discharges of Stormwater from Construction Activities for a
state or federal agency that is administering a project in accordance with
approved annual standards and specifications but shall apply to all other state
or federal agency projects. All regulated MS4s who are issued joint coverage
under an individual permit or general permit registration shall each pay the
appropriate fees set out below:
|
VSMP Municipal Stormwater / MS4 Individual (Large and
Medium)
|
$8,800
|
|
VSMP Municipal Stormwater / MS4 Individual (Small)
|
$6,000
|
|
VSMP Municipal Stormwater / MS4 General Permit (Small)
|
$3,000
|
|
Chesapeake Bay Preservation
Act Land-Disturbing Activity (not subject to General Permit coverage; sites
within designated areas of Chesapeake Bay Act localities with
land-disturbance acreage equal to or greater than 2,500 square feet and less
than 1 acre)
|
$50
|
|
VSMP General / Stormwater
Management – Small Construction Activity/Land Clearing (Sites within
designated areas of Chesapeake Bay Act localities with land-disturbance
acreage equal to or greater than 2,500 square feet and less than 0.5 acre)
|
$50
|
|
VSMP General / Stormwater Management – Small Construction
Activity/Land Clearing (Areas within common plans of development or sale with
land-disturbance acreage less than one acre)
|
$50
|
|
VSMP General / Stormwater
Management – Small Construction Activity/Land Clearing (Sites within
designated areas of Chesapeake Bay Act localities with land-disturbance
acreage equal to or greater than 0.5 acre and less than one acre)
|
$200
|
|
VSMP General / Stormwater Management – Small Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance equal to or greater than one acre and less than
five acres)
|
$400
|
|
VSMP General / Stormwater Management – Large Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater than five acres and
less than 10 acres)
|
$500
|
|
VSMP General / Stormwater Management – Large Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater than 10 acres and less
than 50 acres)
|
$650
|
|
VSMP General / Stormwater Management – Large Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater than 50 acres and less
than 100 acres)
|
$900
|
|
VSMP General / Stormwater Management – Large Construction
Activity/Land Clearing (Sites or areas within common plans of development or
sale with land-disturbance acreage equal to or greater 100 acres)
|
$1,400
|
|
VSMP Individual Permit for Discharges from Construction
Activities
|
$3,000
|
Part XIV
General Virginia Stormwater Management Program (VSMP) Permit for
Discharges of Stormwater from Construction Activities
4VAC50-60-1100. Definitions.
The words and terms used in this part shall have the meanings
defined in the Act and this chapter unless the context clearly indicates
otherwise, except as otherwise specified in this section. Terms not defined in
the Act, this chapter, or this section shall have the meaning attributed to
them in the CWA. For the purposes of this part:
"Commencement of construction" means the initial
disturbance of soils associated with clearing, grading, or excavating
activities or other construction activities (e.g., stockpiling of fill
material).
"Final stabilization" means that one of the
following situations has occurred:
1. All soil disturbing activities at the site have been
completed and a permanent vegetative cover has been established on denuded
areas not otherwise permanently stabilized. Permanent vegetation shall not be
considered established until a ground cover is achieved that is uniform (e.g.,
evenly distributed ), mature enough to survive, and will inhibit erosion.
2. For individual lots in residential construction, final
stabilization can occur by either:
a. The homebuilder completing final stabilization as specified
in subdivision 1 of this definition; or
b. The homebuilder establishing temporary stabilization,
including perimeter controls for an individual lot prior to occupation of the
home by the homeowner, and informing the homeowner of the need for, and
benefits of, final stabilization.
3. For construction projects on land used for agricultural
purposes (e.g., pipelines across crop or range land), final stabilization may
be accomplished by returning the disturbed land to its preconstruction
agricultural use. Areas disturbed that were not previously used for
agricultural activities, such as buffer strips immediately adjacent to surface
waters, and areas that are not being returned to their preconstruction
agricultural use must meet the final stabilization criteria specified in
subdivision 1 or 2 of this definition.
"Minimize" means to prevent, reduce, or eliminate
using practicable control measures to meet the conditions of this state
permit.
4VAC50-60-1110. Purpose.
This general permit regulation authorizes stormwater
discharges from regulated construction activities. For the purposes of this
part, these discharges are defined as stormwater discharges associated with
large construction activity, and stormwater discharges associated with small
construction activity. Stormwater discharges associated with other types of
industrial activity shall not have coverage under this general permit. This
general permit covers only discharges through a point source to state waters or
through a municipal or nonmunicipal separate storm sewer system to state
waters. Stormwater discharges associated with industrial activity that
originate from the site after construction activities have been completed and
the site has undergone final stabilization are not authorized by this state
permit. The goal of this state permit is to minimize the discharge of
stormwater pollutants from construction activity by requiring that the operator
plan and implement appropriate control measures.
4VAC50-60-1130. Authorization to discharge.
A. Any operator governed by this general permit is authorized
to discharge to state waters of the Commonwealth of Virginia in accordance with
4VAC50-60-1150 A 4 provided that the operator has filed a complete and accurate
registration statement in accordance with 4VAC50-60-1150, submitted any fees
required by 4VAC50-60-700 et seq. (Part XIII) unless exempted pursuant to
4VAC60-60-1150 A 3 (a), complied with the requirements of 4VAC50-60-1150,
complies with the requirements of 4VAC50-60-1180 through 4VAC50-60-1190, and:
1. Prior to commencing construction, the operator shall obtain
approval of an erosion and sediment control plan from the VESCP authority in
the locality in which the construction activity is to occur or from
another appropriate plan-approving authority authorized under the Virginia
Erosion and Sediment Control Regulations, 4VAC50-30, unless the operator
receives from the locality VESCP authority an "agreement in
lieu of a plan" as defined in 4VAC50-30-10, or is exempt from the
requirement to submit an erosion and sediment control plan by the Erosion and
Sediment Control Law (§ 10.1-560 et seq. of the Code of Virginia) and Erosion
and Sediment Control Regulations (4VAC50-30);
2. The stormwater discharge authorized by this state
permit may be combined with other sources of stormwater that are not required
to be covered under a VSMP state permit, so long as the combined
discharge is in compliance with this state permit. Any discharge
authorized by a different VSMP state or a VPDES permit may be
commingled with discharges authorized by this state permit so long as
all such discharges comply with all applicable state permits;
3. Discharges to waters for which a "total maximum daily
load" (TMDL) wasteload allocation has been established are not eligible
for coverage under this general permit unless they are otherwise authorized in
accordance with 4VAC50-60-1170 Section II D 6 and consistent with the
requirements and assumptions of the wasteload allocations in the TMDL; and
4. Discharges to waters that have been identified as impaired
in the 2008 § 305(b)/303(d) Water Quality Assessment Integrated Report are
not eligible for coverage under this general permit unless they are otherwise
authorized in accordance with 4VAC50-60-1170 Section I H.
B. In addition to other prohibitions, the following
discharges are not eligible for coverage under this general permit:
1. Discharges for which the operator has been required to
obtain an individual permit according to 4VAC50-60-410 B;
2. Discharges to state waters specifically named in other
State Water Control Board regulations or policies that prohibit such
discharges; and
3. Stormwater discharges that the permit-issuing authority
department in consultation with the State Water Control Board determines
cause, may reasonably be expected to cause, or contribute to a violation of
water quality standards (9VAC25-260).
C. This state permit may also be used to authorize
stormwater discharges from support activities (e.g., concrete or asphalt batch
plants, equipment staging yards, material storage areas, excavated material
disposal areas, borrow areas) located on-site or off-site provided that:
1. The support activity is directly related to a construction
site that is required to have VSMP state permit coverage for
discharges of stormwater associated with construction activity;
2. The support activity is not a commercial operation serving
multiple unrelated construction projects by different operators, and does not
operate beyond the completion of the construction activity at the last
construction project it supports; and
3. Appropriate control measures that will be implemented to
minimize pollutant discharges from the support activity are identified in a
stormwater pollution prevention plan covering the discharges from the support
activity areas.
D. Support activities located off-site are not required to be
covered under this general permit. Discharges of stormwater from off-site
support activities may be authorized under another VSMP state or
a VPDES permit. Where stormwater discharges from off-site support activities
are not authorized under this general permit, the land area of the off-site
support activity need not be included in determining the total land disturbance
acreage of the construction activity seeking general permit coverage.
E. Receipt of this general permit does not relieve any
operator of the responsibility to comply with any other applicable federal,
state or local statute, ordinance or regulation.
F. The permit-issuing authority department may
allow exceptions to technical criteria contained in the state permit in
accordance with Part III of this chapter.
4VAC50-60-1140. Qualifying state and local Virginia
erosion and sediment control programs.
Qualifying state or local erosion and sediment control
program VESCP requirements may be incorporated by reference into the
Stormwater Pollution Prevention Plan (SWPPP) required by 4VAC50-60-1170 of this
state permit. Where a qualifying state or local program VESCP
does not include one or more of the elements in this section, then the operator
must include those elements as part of the SWPPP required by 4VAC50-60-1170 of
this permit. A qualifying state or local erosion and sediment control
program VESCP is one that is approved by the board, meets the
requirements of 4VAC50-60-460 L and includes:
1. Requirements for construction site operators to implement
appropriate erosion and sediment control measures;
2. Requirements for construction site operators to control
waste such as discarded building materials, concrete truck washout, chemicals,
litter, and sanitary waste at the construction site that may cause adverse
impacts to water quality; and
3. Requirements for construction site operators to develop and
implement a SWPPP in accordance with 4VAC50-60-1170 Section II.
4VAC50-60-1150. Permit State permit application (registration
statement).
A. Deadlines for submitting registration statement.
1. Except as provided in subdivision 3 of this subsection,
operators must submit a complete and accurate registration statement in
accordance with the requirements of this section prior to the issuance of
coverage under the general permit that authorizes the commencement of
land-disturbing activities (i.e., the initial disturbance of soils associated
with clearing, grading, excavation activities, or other construction activities).
2. For stormwater discharges from construction activities
where the operator changes, the new operator must submit a complete
registration statement or transfer form prior to assuming operational control
over site specifications or commencing work on-site.
3. In order to continue state permit coverage,
operators of ongoing construction activity projects as of July 1, 2009, that
received authorization to discharge for those projects under the construction
stormwater general permit issued in 2004 must:
a. Submit a complete and accurate registration statement by
June 1, 2009. Provided that a complete and accurate registration statement is
submitted by the June 1 reapplication date, the state permit application
(registration statement) fee will be waived for land-disturbing activities for
which the department initially issued state permit coverage on or after
July 1, 2008; and
b. Update their stormwater pollution prevention plan to comply
with the requirements of this general permit within 30 days after the date of
coverage under this general permit.
4. Effective date of state permit coverage. The
operator of a construction activity is authorized to discharge stormwater under
the terms and conditions of this state permit 15 business days following
submission of a complete and accurate registration statement to the permit-issuing
VSMP authority as the administering entity for the board unless
notification of coverage is made by the permit-issuing authority department
at an earlier time. For the purposes of this state permit, a
registration statement that is mailed is considered to be submitted once it is
postmarked. Operators are not authorized to discharge if the registration
statement is incomplete or incorrect, or if the discharge(s) was not eligible
for coverage under this state permit. NOTE: A stormwater pollution
prevention plan (SWPPP) must be prepared in accordance with the requirements of
the VSMP General Permit for Stormwater Discharges from Construction
Activities prior to submitting the registration statement. By signing the
registration statement the operator certifies that the SWPPP has been prepared.
5. Late notifications. Operators are not prohibited from
submitting registration statements after initiating clearing, grading,
excavation activities, or other land-disturbing activities. When a late
registration statement is submitted, authorization for discharges shall not
occur until coverage under the general permit is issued. The permit-issuing
authority department reserves the right to take enforcement action
for any unpermitted discharges that occur between the commencement of
construction and discharge authorization.
B. Registration statement. The operator shall submit a
registration statement on the official department form that shall contain the
following information:
1. Name, mailing address and telephone number of the
construction activity operator. No more than one operator may receive coverage
under each registration statement. (NOTE: The state permit will be
issued to this operator, and the certification in subdivision 12 of this
subsection must be signed by the appropriate person associated with this
operator);
2. Name and location of the construction activity, including
town, city, or county, and all off-site support activities to be covered under
the state permit. If a street address is unavailable, provide latitude
and longitude;
3. Status of the activity: federal, state, public, or private;
4. Nature of the construction activity (e.g., commercial,
industrial, residential, agricultural, oil and gas, etc.);
5. Name of the receiving water(s) and HUC. Direct discharges
to any receiving water identified as impaired on the 2008 § 305(b)/303(d)
Water Quality Assessment Integrated Report or for which a TMDL WLA has been
established for stormwater discharges from a construction activity shall be
noted;
6. If the discharge is through a municipal separate storm
sewer system (MS4), the name of the municipal operator of the storm sewer;
7. Estimated project start date and completion date;
8. Total land area of development and estimated area to be
disturbed by the construction activity (to the nearest one-tenth of an acre);
9. Whether the area to be disturbed by the construction
activity is part of a larger common plan of development or sale;
10. An indication of whether nutrient offsets are intended to
be acquired in accordance with § 10.1-603.8:1 of the Code of Virginia;
11. A stormwater pollution prevention plan (SWPPP) must be
prepared in accordance with the requirements of the VSMP General Permit
for Stormwater Discharges from Construction Activities prior to submitting the
registration statement. By signing the registration statement the operator
certifies that the SWPPP has been prepared; and
12. The following certification: "I certify under penalty
of law that I have read and understand this registration statement and that
this document and all attachments were prepared in accordance with a system
designed to assure that qualified personnel properly gathered and evaluated the
information submitted. Based on my inquiry of the person or persons who manage
the system or those persons directly responsible for gathering the information,
the information submitted is to the best of my knowledge and belief true,
accurate, and complete. I am aware that there are significant penalties for
submitting false information including the possibility of fine and imprisonment
for knowing violations."
C. The registration statement shall be signed in accordance
with 4VAC50-60-1170, Section III K.
D. Where to submit. The registration statement shall be
submitted to the permit-issuing VSMP authority as the
administering entity for the board.
E. Registration statements in the custody of the permit-issuing
VSMP authority or the department are subject to requests made
pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of
the Code of Virginia).
4VAC50-60-1160. Termination of state permit coverage.
A. Requirements. The operator shall submit a notice of
termination on the official department form after one or more of the following
conditions have been met:
1. Necessary postconstruction control measures included in the
SWPPP for the site are in place and functioning effectively and final
stabilization has been achieved on all portions of the site for which the
operator is responsible;
2. Another operator has assumed control over all areas of the
site that have not been finally stabilized and obtained coverage for the
ongoing discharge;
3. Coverage under an alternative VPDES or VSMP state
permit has been obtained; or
4. For residential construction only, temporary stabilization
has been completed and the residence has been transferred to the homeowner.
The notice of termination must be submitted within 30 days of
one of the above conditions being met. Authorization to discharge terminates at
midnight on the date that the notice of termination is submitted.
B. Notice of termination. The notice of termination shall
contain the following information:
1. Name, mailing address and telephone number of the
construction activity operator.
2. Name and location of the construction activity. If a street
address is unavailable, latitude and longitude shall be provided.
3. The VSMP stormwater general permit number.
4. The basis for submission of the notice of termination,
pursuant to subsection A.
5. Where applicable, a list of the permanent control measures
(both structural and nonstructural) that were installed at the construction
activity site. For each control measure that was installed, the following
information shall be included:
a. Type of permanent control measure installed and the date
that it became functional as a permanent control measure;
b. Geographic location (county or city and Hydrologic Unit
Code). Latitude and longitude may additionally be included if available;
c. Waterbody the control measure discharges into; and
d. Number of acres treated (to the nearest one-tenth of an
acre).
6. Where applicable, the following information related to
participation in a regional stormwater management plan:
a. Type of regional facility or facilities to which the site
contributes;
b. Geographic location of any regional facility to which the
site contributes (county or city and Hydrologic Unit Code);
c. Geographic location of the site (county or city and Hydrologic
Unit Code). Latitude and longitude may additionally be included if available;
and
d. Number of acres treated by a regional facility.
7. Where applicable, the following information related to
nutrient offsets that were acquired in accordance with § 10.1-603.8:1 of
the Code of Virginia:
a. Name of the broker from which offsets were acquired;
b. Geographic location (county or city and Hydrologic Unit
Code) of the broker's offset generating facility;
c. Number of nutrient offsets acquired (lbs. per acre per
year); and
d. Nutrient reductions achieved on site (lbs. per acre per
year).
8. The following certification: "I certify under penalty
of law that I have read and understand this notice of termination and that this
document and all attachments were prepared in accordance with a system designed
to assure that qualified personnel properly gathered and evaluated the
information submitted. Based on my inquiry of the person or persons who manage
the system or those persons directly responsible for gathering the information,
the information submitted is to the best of my knowledge and belief true,
accurate, and complete. I am aware that there are significant penalties for
submitting false information including the possibility of fine and imprisonment
for knowing violations."
C. The notice of termination shall be signed in accordance
with 4VAC50-60-1170 Section III K.
D. Where to submit. The notice of termination shall be
submitted to the permit-issuing VSMP authority as the
administering entity for the board.
E. Termination by the permit-issuing department in
coordination with the VSMP authority. The permit-issuing department
in coordination with the VSMP authority may terminate coverage under this state
permit during its term and require application for an individual permit or deny
a state permit renewal application on its own initiative in accordance
with the Act and this chapter.
4VAC50-60-1170. General permit.
Any operator whose registration statement is accepted by the permit-issuing
authority department will receive the following state permit
and shall comply with the requirements in it and be subject to all requirements
of the Virginia Stormwater Management Act (Chapter 6, Article 1.1
(§ 10.1-603.1 et seq.) of Title 10.1 of the Code of Virginia) and the
Virginia Stormwater Management Program (VSMP) Permit Regulations (4VAC50-60).
No more than one operator may receive coverage under each registration
statement.
General Permit No.: VAR10
Effective Date: July 1, 2009
Expiration Date: June 30, 2014
GENERAL PERMIT FOR DISCHARGES OF STORMWATER FROM CONSTRUCTION
ACTIVITIES
AUTHORIZATION TO DISCHARGE UNDER THE VIRGINIA STORMWATER
MANAGEMENT PROGRAM AND THE VIRGINIA STORMWATER MANAGEMENT ACT
In compliance with the provisions of the Clean Water Act, as
amended, and pursuant to the Virginia Stormwater Management Act and attendant
regulations, operators of construction activities covered by this state
permit with stormwater discharges are authorized to discharge to state waters,
including discharges to a regulated MS4 system, within the boundaries of the
Commonwealth of Virginia, except those specifically named in State Water
Control Board and Virginia Soil and Water Conservation Board regulations that
prohibit such discharges.
The authorized discharge shall be in accordance with this
cover page, Section I—Discharge Authorization and Special Conditions, Section
II—Stormwater Pollution Prevention Plan, and Section III—Conditions Applicable
To All VSMP State Permits as set forth herein.
SECTION I
DISCHARGE AUTHORIZATION AND SPECIAL CONDITIONS
A. Coverage under this state permit.
1. During the period beginning with the date of coverage under
this general permit and lasting until the state permit's expiration
date, the operator is authorized to discharge stormwater from construction
activities.
2. This state permit may also authorize stormwater
discharges from support activities (e.g., concrete or asphalt batch plants,
equipment staging yards, material storage areas, excavated material disposal
areas, borrow areas) located on-site or off-site provided that:
a. The support activity is directly related to the
construction site that is required to have VSMP state permit
coverage for discharges of stormwater associated with construction activity;
b. The support activity is not a commercial operation serving
multiple unrelated construction projects by different operators, and does not
operate beyond the completion of the construction activity at the last
construction project it supports; and
c. Appropriate control measures are identified in a stormwater
pollution prevention plan and implemented to address the discharges from the
support activity areas.
3. There shall be no discharge of floating solids or visible
foam that contravenes established standards or interferes directly or
indirectly with designated uses of surface waters.
B. Limitation on coverage.
1. Post-construction discharges. This state permit does
not authorize stormwater discharges that originate from the site after
construction activities have been completed and the site, including any
temporary support activity site, has undergone final stabilization.
Post-construction industrial stormwater discharges may need to be covered by a
separate VPDES permit.
2. Discharges mixed with nonstormwater. This state
permit does not authorize discharges that are mixed with sources of
nonstormwater, other than those discharges that are identified in Section I D 2
(Exceptions to prohibition of nonstormwater discharges) and are in compliance with
Section II D 5 (Nonstormwater discharge management).
3. Discharges covered by another state permit. This state
permit does not authorize stormwater discharges associated with construction
activity that have been covered under an individual permit or required to
obtain coverage under an alternative general permit.
4. TMDL limitation. Discharges to waters for which a wasteload
allocation (WLA) for a pollutant has been established in a "total maximum
daily load" (TMDL) approved by the State Water Control Board that would
apply to stormwater discharges from a construction activity are not eligible
for coverage under this state permit unless the stormwater pollution
prevention plan (SWPPP) developed by the operator is consistent with the
requirements related to TMDLs contained in Section II D 6.
5. Impaired waters limitation. Discharges to waters that have
been identified as impaired in the 2008 § 305(b)/303(d) Water Quality
Assessment Integrated Report are not eligible for coverage under this state
permit unless the operator implements strategies and control measures
consistent with Sections I H and II D 7.
C. Commingled discharges. Any discharge authorized by a
different VSMP state or VPDES permit may be commingled with
discharges authorized by this state permit.
D. Prohibition of nonstormwater discharges.
1. Except as provided in Sections I A 2, I C and I D 2, all
discharges covered by this state permit shall be composed entirely of
stormwater associated with construction activity.
2. The following nonstormwater discharges from active
construction sites are authorized by this state permit provided the
nonstormwater component of the discharge is in compliance with Section II D 5
(Nonstormwater discharges):
a. Discharges from fire fighting activities;
b. Fire hydrant flushings;
c. Waters used to wash vehicles where detergents are not used;
d. Water used to control dust;
e. Potable water sources, including uncontaminated waterline
flushings;
f. Routine external building wash down which does not use detergents;
g. Pavement washwaters where spills or leaks of toxic or
hazardous materials have not occurred (unless all spilled material has been
removed) and where detergents are not used;
h. Uncontaminated air conditioning or compressor condensate;
i. Uncontaminated ground water or spring water;
j. Foundation or footing drains where flows are not
contaminated with process materials such as solvents;
k. Uncontaminated excavation dewatering, and
l. Landscape irrigation.
E. Releases of hazardous substances or oil in excess of
reportable quantities. The discharge of hazardous substances or oil in the
stormwater discharges from the construction site shall be prevented or
minimized in accordance with the stormwater pollution prevention plan for the
site. This state permit does not relieve the state permittee of
the reporting requirements of 40 CFR Part 110 (2002), 40 CFR Part 117 (2002)
and 40 CFR Part 302 (2002) or § 62.1-44.34:19 of the Code of Virginia.
Where a release containing a hazardous substance or oil in an
amount equal to or in excess of a reportable quantity established under either
40 CFR Part 110 (2002), 40 CFR Part 117 (2002), 40 CFR Part 302 (2002), or
§ 62.1-44.34.19 of the Code of Virginia occurs during a 24-hour period:
1. The operator is required to notify the Department of
Environmental Quality, the department, and the permit-issuing VSMP
authority in accordance with the requirements of Section III G as soon as he
has knowledge of the discharge;
2. Where a release enters a municipal separate storm sewer
system (MS4), the operator shall also notify the operator of the MS4; and
3. The stormwater pollution prevention plan required under
Section II D of this state permit must be reviewed by the operator to
identify measures to prevent the reoccurrence of such releases and to respond
to such releases, and the plan must be modified where appropriate within seven
calendar days of knowledge of a release.
F. Spills. This state permit does not authorize the
discharge of hazardous substances or oil resulting from an on-site spill.
G. Termination of state permit coverage. Coverage
under this state permit may be terminated in accordance with
4VAC50-60-1160.
H. Water quality protection.
1. The operator must select, install, implement and maintain
control measures at the construction site that minimize pollutants in the
discharge as necessary to ensure that the operator's discharge does not cause
or contribute to an excursion above any applicable water quality standards.
2. If it is determined by the permit-issuing authority department
in consultation with the State Water Control Board at any time that the
operator's stormwater discharges have reasonable potential to cause or
contribute to an excursion above any applicable water quality standard, the permit-issuing
authority department shall require the operator to:
a. Modify control measures in accordance with Section II C to
adequately address the identified water quality concerns;
b. Submit valid and verifiable data and information that are
representative of ambient conditions and indicate that the receiving water is
attaining water quality standards; or
c. Cease discharges of pollutants from construction activity
and submit an individual permit application according to 4VAC50-60-410 B 3.
All written responses required under this part must include a
signed certification consistent with Section III K.
SECTION II
STORMWATER POLLUTION PREVENTION PLAN
A. Stormwater Pollution Prevention Plan Framework.
1. A stormwater pollution prevention plan (SWPPP) shall be
developed prior to submission of a registration statement and implemented for
the construction activity covered by this state permit. SWPPPs shall be
prepared in accordance with good engineering practices.
2. The SWPPP shall:
a. Identify potential sources of pollutants that may
reasonably be expected to affect the quality of stormwater discharges from the
construction site;
b. Describe control measures that will be used to minimize
pollutants in stormwater discharges from the construction site; and
c. Comply with the terms and conditions of this state
permit.
3. The SWPPP requirements of this general permit may be
fulfilled by incorporating by reference other state or local plans such as (i)
an erosion and sediment control (ESC) plan, (ii) an agreement in lieu of a plan
as defined in 4VAC50-30-10, (iii) a stormwater management plan, (iv) a spill
prevention control and countermeasure (SPCC) plan developed for the site under § 311
of the federal Clean Water Act or (v) best management practices (BMP) programs
otherwise required for the facility provided that the incorporated plan meets
or exceeds the SWPPP requirements of Section II D. If an erosion and sediment
control plan for the land-disturbing activity is being incorporated by
reference, the referenced plan must be approved by the VESCP authority of
the locality in which the construction activity is to occur or by
another appropriate plan approving authority authorized under the Virginia
Erosion and Sediment Control Regulations (4VAC50-30) prior to the
commencement of land disturbance.
4. All plans incorporated by reference into the SWPPP become
enforceable under this state permit. If a plan incorporated by reference
does not contain all of the required elements of the SWPPP of Section II D, the
operator must develop the missing elements and include them in the required
SWPPP.
5. Once a definable area has been finally stabilized, the
operator may mark this on the SWPPP and no further SWPPP or inspection
requirements apply to that portion of the site (e.g., earth-disturbing
activities around one of three buildings in a complex are done and the area is
finally stabilized; one mile of a roadway or pipeline project is done and
finally stabilized, etc.).
6. The SWPPP shall identify all properties that are no longer
under the control of the operator and the dates on which the operator no longer
had control over each property.
7. The operator must implement the SWPPP as written and
updated in accordance with Section II C from commencement of construction
activity until final stabilization is complete.
B. Signature, SWPPP review and making SWPPPs available.
1. The SWPPP shall be signed in accordance with Section III K.
2. The SWPPP shall be retained, along with a copy of this state
permit, registration statement, and acknowledgement letter from the permit-issuing
authority department, at the construction site or other location
easily accessible during normal business hours from the date of commencement of
construction activity to the date of final stabilization. Operators with
day-to-day operational control over SWPPP implementation shall have a copy of
the SWPPP available at a central location on-site for the use of all operators and
those identified as having responsibilities under the SWPPP whenever they are
on the construction site. The SWPPP must be made available, in its entirety, to
the department, the permit-issuing VSMP authority, and the
operator of a municipal separate storm sewer system receiving discharges from
the site for review at the time of an on-site inspection. If an on-site
location is unavailable to store the SWPPP when no personnel are present,
notice of the SWPPP's location must be posted near the main entrance at the
construction site.
3. The operator shall make SWPPPs and all updates available
upon request to the department; the permit-issuing VSMP
authority; EPA; a state or local agency approving erosion and sediment control
plans, grading plans, or stormwater management plans; local government
officials; or the operator of a municipal separate storm sewer system receiving
discharges from the site.
4. A sign or other notice must be posted conspicuously near
the main entrance of the construction site. The sign or other notice must
contain the following information:
a. A copy of the state permit coverage letter than
includes the registration number for the construction activity; and
b. The Internet address at which a copy of the SWPPP may be
found or the location of a hard copy of the SWPPP and name and telephone number
of a contact person for scheduling viewing times.
For linear projects, the sign or other notice must be posted
at a publicly accessible location near an active part of the construction project
(e.g., where a pipeline project crosses a public road).
5. For discharges that commence on or after July 1, 2009, that
have not previously held coverage under a VSMP state or VPDES
permit, the operator shall make the SWPPP available to the public for review. A
copy of the SWPPP for each site shall be made available on the Internet or in
hard copy. The website address or contact person for access to the SWPPP shall
be posted on the sign required by subdivision B 4 of this section. If not
provided electronically, access to the SWPPP may be arranged upon request at a
time and at a publicly accessible location convenient to the operator or his
designee but shall be no less than once per month and shall be during normal
business hours. If a reproduced copy of the SWPPP is provided to the requestor,
the requestor shall be responsible for the costs of reproduction. Information
excluded from disclosure under applicable law shall not be required to be
released. Information not required to be contained within the SWPPP by this state
permit is not required to be released.
C. Maintaining an updated
SWPPP.
1. The operator shall amend the SWPPP whenever there is a
change in design, construction, operation, or maintenance that has a
significant effect on the discharge of pollutants to state waters and that has
not been previously addressed in the SWPPP.
2. The SWPPP must be amended if during inspections or
investigations by the operator's qualified personnel, or by local VESCP
authority, VSMP authority, state or federal officials, it is
determined that the existing control measures are ineffective in minimizing
pollutants in stormwater discharges from the construction site. Revisions to
the SWPPP shall include additional or modified control measures designed to
correct problems identified. If approval by a plan-approving VSMP
authority is necessary for the control measure, revisions to the SWPPP shall be
completed within seven calendar days of approval. Implementation of these
additional or modified control measures must be accomplished as described in
Section II D 3 b.
3. Revisions to the SWPPP must be dated and signed in
accordance with Section III K 2, but are not required to be certified in
accordance with Section III K 4.
4. The SWPPP must clearly identify the contractor(s) or
subcontractor(s) that will implement and maintain each measure identified in
the SWPPP. The SWPPP shall be revised to identify any new contractor that will
implement a measure.
D. Stormwater pollution prevention plan contents. The SWPPP
shall include the registration statement, this state permit, and the
following items:
1. Site and activity description. Each SWPPP shall provide the
following information:
a. A narrative description of the nature of the construction
activity, including the function of the project (e.g., low density residential,
shopping mall, highway, etc.);
b. The intended sequence and timing of activities that disturb
soils at the site (e.g., grubbing, excavation, grading, utilities and
infrastructure installation);
c. A record of the dates when major grading activities occur,
when construction activities temporarily or permanently cease on a portion of
the site, and when stabilization measures are initiated;
d. Estimates of the total area expected to be disturbed by
excavation, grading, or other construction activities including off-site borrow
and fill areas;
e. A description of any other potential pollutant sources,
such as vehicle fueling, storage of fertilizers or chemicals, sanitary waste
facilities, etc.;
f. Identification of the nearest receiving waters at or near
the construction site that will receive discharges from disturbed areas of the
project;
g. The location and description of any discharge associated
with industrial activity other than construction at the site. This includes
stormwater discharges from dedicated asphalt plants and dedicated concrete
plants that are covered by this state permit;
h. A legible general location map (e.g., USGS quadrangle map,
a portion of a city or county map, or other map) with sufficient detail to
identify the location of the construction activity and surface waters within
one mile of the construction activity; and
i. A legible site map identifying:
(1) Directions of stormwater flow and approximate slopes
anticipated after major grading activities;
(2) Areas of soil disturbance and areas of the site which will
not be disturbed;
(3) Locations of major structural and nonstructural control
measures identified in the SWPPP, including those that will be permanent after
construction activities have been completed;
(4) Locations where stabilization practices are expected to
occur;
(5) Locations of surface waters;
(6) Locations where concentrated stormwater discharges;
(7) Locations of off-site material, waste, borrow or equipment
storage areas covered by the SWPPP;
(8) Locations of other potential pollutant sources, such as
vehicle fueling, storage of chemicals, concrete wash-out areas, sanitary waste
facilities, including those temporarily placed on the construction site, etc.;
and
(9) Areas where final stabilization has been accomplished.
2. Controls to minimize pollutants. The SWPPP shall include a
description of all control measures that will be implemented as part of the
construction activity to minimize pollutants in stormwater discharges. For each
major activity identified in the project description, the SWPPP shall clearly
describe appropriate control measures, the general sequencing during the
construction process in which the control measures will be implemented, and
which operator is responsible for the control measure's implementation.
a. Erosion and sediment controls.
(1) An erosion and sediment control plan or an agreement in
lieu of a plan shall be approved by the appropriate plan-approving VESCP
authority for the land-disturbing activity in accordance with the Virginia
Erosion and Sediment Control Law (§ 10.1-560 et seq.) and regulations
(4VAC50-30). Where applicable, a plan shall be developed in accordance with
board-approved annual general erosion and sediment control specifications.
(2) All control measures required by the plan shall be
designed, installed, and maintained in accordance with good engineering
practices and the minimum standards of the Virginia Erosion and Sediment
Control Law (§ 10.1-560 et seq. of the Code of Virginia) and regulations
(4VAC50-30).
b. Management practices.
(1) Plans should ensure that existing vegetation is preserved
where possible and that disturbed portions of the site are stabilized.
(2) All control measures must be properly selected, installed,
and maintained in accordance with good engineering practices and, where
applicable, manufacturer specifications. If periodic inspections or other
information indicates a control has been used inappropriately or incorrectly,
the operator must replace or modify the control for site situations as soon as
practicable and update the SWPPP in accordance with Section II C.
(3) If sediment escapes the construction site, off-site
accumulations of sediment must be removed as soon as practicable to minimize
off-site impacts. If approval by a plan-approving VESCP authority
is necessary, control measures shall be implemented to minimize pollutants in
stormwater discharges until such approvals can be obtained.
(4) Construction debris and construction chemicals exposed to
stormwater shall be prevented from becoming a pollutant source in stormwater
discharges.
(5) Litter exposed to stormwater shall be prevented from
becoming a pollutant source in stormwater discharges and the construction site
shall be policed daily to control litter.
c. Stormwater management.
(1) The operator shall ensure compliance with the requirements
of 4VAC50-60-1180 through 4VAC50-60-1190 of the Virginia Stormwater Management
Regulations, including but not limited to water quality and quantity
requirements. The SWPPP shall include a description of, and all necessary
calculations supporting, all post-construction stormwater management measures
that will be installed prior to the completion of the construction process to
control pollutants in stormwater discharges after construction operations have
been completed. Structural measures should be placed on upland soils to the
degree possible. Such measures must be designed and installed in accordance
with applicable local VESCP authority, VSMP authority,
state, and federal requirements, and any necessary permits must be obtained.
(2) Control measures contained in Part II of the Virginia
Stormwater Management Regulations, 4VAC50-60-1184, or on the Virginia BMP
Clearinghouse may be utilized. Innovative or alternate control measures may be
allowed by the department provided such measures effectively address water
quality and quantity in accordance with the requirements of 4VAC50-60-1180
through 4VAC50-60-1190 and are not restricted by the locality.
(3) Where applicable, the SWPPP shall contain additional
information related to participation in a regional stormwater management plan,
including:
(a) Type of regional facility or facilities to which the site
contributes;
(b) Geographic location of any regional facility to which the
site contributes (county or city and Hydrologic Unit Code);
(c) Geographic location of the site (county or city and
Hydrologic Unit Code). Latitude and longitude may additionally be included if
available; and
(d) Number of acres treated by a regional facility.
(4) Where applicable, the SWPPP shall contain additional
information related to nutrient offsets to be acquired in accordance with §
10.1-603.8:1 of the Code of Virginia, including:
(a) Name of the broker from which offsets will be acquired;
(b) Geographic location (county or city and Hydrologic Unit
Code) of the broker's offset generating facility;
(c) Number of nutrient offsets to be acquired (lbs. per acre
per year); and
(d) Nutrient reductions to be achieved on site (lbs. per acre
per year).
(5) Outflows from a stormwater management facility or
stormwater conveyance system shall be discharged to an adequate channel as
defined in the Virginia Erosion and Sediment Control Regulations (4VAC50-30).
In addition, all control measures shall be employed in a manner that minimizes
impacts on the physical, chemical and biological integrity of rivers, streams,
and other state waters, is protective of water quality standards, and is
consistent with Section II D 6 and D 7 and other applicable provisions of this state
permit.
d. Other controls.
(1) The SWPPP shall describe measures to prevent the discharge
of solid materials, including building materials, garbage, and debris to state
waters, except as authorized by a Clean Water Act § 404 permit.
(2) The SWPPP shall describe control measures used to comply
with applicable state or local waste disposal, sanitary sewer or septic system
regulations.
(3) The SWPPP shall include a description of construction and
waste materials expected to be stored on-site with updates as appropriate. The
SWPPP shall also include a description of controls including storage practices,
to minimize exposure of the materials to stormwater, and for spill prevention
and response.
(4) The SWPPP shall include a description of pollutant sources
from off-site areas (including stormwater discharges from dedicated asphalt
plants and dedicated concrete plants), and a description of control measures
that will be implemented at those sites to minimize pollutant discharges.
e. Applicable state or local programs. The control measures
implemented at the site shall be consistent with all applicable federal, state,
or local VESCP or VSMP authority requirements for erosion and
sediment control and stormwater management. The SWPPP shall be updated as
necessary to reflect any revisions to applicable federal, state or local
VESCP or VSMP authority requirements that affect the control measures
implemented at the site.
3. Maintenance of controls.
a. All control measures must be properly maintained in
effective operating condition in accordance with good engineering practices
and, where applicable, manufacturer specifications. If site inspections
required by Section II D 4 identify control measures that are not operating
effectively, maintenance shall be performed as soon as practicable to maintain
the continued effectiveness of stormwater controls.
b. If site inspections required by Section II D 4 identify
existing control measures that need to be modified or if additional control
measures are necessary for any reason, implementation shall be completed before
the next anticipated storm event. If implementation before the next anticipated
storm event is impracticable, the situation shall be documented in the SWPPP
and alternative control measures shall be implemented as soon as practicable.
4. Inspections. The name and phone number of qualified
personnel conducting inspections shall be included in the SWPPP.
a. Inspections shall be conducted (i) at least every seven
calendar days or (ii) at least once every 14 calendar days and within 48 hours
following any runoff producing storm event. Where areas have been temporarily
stabilized or runoff is unlikely due to winter conditions (e.g., the site is
covered with snow or ice, or frozen ground exists) such inspections shall be
conducted at least once every month.
b. Inspections must include all areas of the site disturbed by
construction activity, off-site areas covered by the state permit, and
areas used for storage of materials that are exposed to precipitation, but does
not need to include areas identified pursuant to Section II A 5. Inspectors
must look for evidence of, or the potential for, pollutants entering a
stormwater conveyance system. Control measures identified in the SWPPP shall be
inspected for proper installation, maintenance, and operation. Discharge
locations, where accessible, shall be inspected to ascertain whether control
measures are effective in minimizing impacts to receiving waters. Where
discharge locations are inaccessible, nearby downstream locations shall be
inspected to the extent that such inspections are practicable. Locations where
vehicles enter or exit the site shall be inspected for evidence of off-site
sediment tracking.
c. Utility line installation, pipeline construction, and other
examples of long, narrow, linear construction activities may limit the access
of inspection personnel to the areas described in Section II D 4 b. Inspection
of these areas could require that vehicles compromise temporarily or even
permanently stabilized areas, cause additional disturbance of soils, and
increase the potential for erosion. In these circumstances, controls must be
inspected on the same frequencies as other construction projects, but
representative inspections may be performed. For representative inspections,
personnel must inspect controls along the construction site for 0.25 miles
above and below each access point where a roadway, undisturbed right-of-way, or
other similar feature intersects the construction site and allows access to the
areas described above. The conditions of the controls along each inspected
0.25-mile segment may be considered as representative of the condition of
controls along that reach extending from the end of the 0.25-mile segment to
either the end of the next 0.25-mile segment, or to the end of the project,
whichever occurs first. Inspection locations must be listed in the report
required by Section II D 4 d.
d. A report summarizing the scope of the inspection, names and
qualifications of personnel making the inspection, the dates of the inspection,
major observations relating to the implementation of the SWPPP, and actions
taken in accordance with Section II D 4 d of the state permit shall be
made and retained as part of the SWPPP in accordance with Section III B of this
state permit. Major observations should include:
(1) The location(s) of discharges of sediment or other
pollutants from the site;
(2) Location(s) of control measures that need to be
maintained;
(3) Location(s) of control measures that failed to operate as
designed or proved inadequate for a particular location;
(4) Location(s) where additional control measures are needed
that did not exist at the time of inspection;
(5) Corrective action required including any changes to the
SWPPP that are necessary and implementation dates;
(6) An estimate of the amount of rainfall at the construction
site (in inches) from the runoff producing storm event requiring the
inspection, or if inspecting on a seven-day schedule, the amount of rainfall
(in inches) since the previous inspection; and
(7) Weather information and a description of any discharges
occurring at the time of inspection.
A record of each inspection and of any actions taken in
accordance with Section II must be retained by the operator as part of the
SWPPP for at least three years from the date that state permit coverage
expires or is terminated. The inspection reports shall identify any incidents
of noncompliance. Where a report does not identify any incidents of
noncompliance, the report shall contain a certification that the facility is in
compliance with the SWPPP and this state permit. The report shall be
signed in accordance with Section III K of this state permit.
5. Nonstormwater discharge management. The SWPPP shall
identify all allowable sources of nonstormwater discharges listed in Section I
D 2 of this state permit that are combined with stormwater discharges
from the construction activity at the site, except for flows from fire fighting
activities. The SWPPP shall identify and require the implementation of
appropriate control measures for the nonstormwater components of the discharge.
6. Total maximum daily loads. A total maximum daily load
(TMDL) approved by the State Water Control Board may include a wasteload
allocation to the regulated construction activity that identifies the pollutant
for which stormwater control measures are necessary for the surface waters to
meet water quality standards. The pollutant identified in a wasteload
allocation as of the effective date of this state permit must be
specified in the SWPPP. The SWPPP shall include strategies and control measures
to ensure consistency with the assumptions and requirements of the TMDL WLA
that apply to the operator's discharge. In a situation where a TMDL has specified
a general wasteload allocation applicable to construction stormwater
discharges, but no specific requirements for construction sites have been
identified in the TMDL, the operator shall consult with the state or federal
TMDL authority to confirm that meeting state permit requirements will be
consistent with the approved TMDL. If the TMDL specifically precludes such
discharges, the operator is not eligible for coverage under the general permit.
7. Impaired waters. In accordance with Section I H, control measures
shall be protective of water quality standards for impaired waters identified
as having impairments for pollutants that may be discharged from the
construction activity in the 2008 § 305(b)/303(d) Water Quality Assessment
Integrated Report.
SECTION III
CONDITIONS APPLICABLE TO ALL VSMP STATE PERMITS
NOTE: Discharge monitoring is not required for this state
permit. If the operator chooses to monitor stormwater discharges or control
measures, the operator must comply with the requirements of subsections A, B,
and C, as appropriate.
A. Monitoring.
1. Samples and measurements taken for the purpose of
monitoring shall be representative of the monitoring activity.
2. Monitoring shall be conducted according to procedures
approved under 40 CFR Part 136 (2001) or alternative methods approved by the
U.S. Environmental Protection Agency, unless other procedures have been
specified in this state permit.
3. The operator shall periodically calibrate and perform
maintenance procedures on all monitoring and analytical instrumentation at
intervals that will ensure accuracy of measurements.
B. Records.
1. Monitoring records and reports shall include:
a. The date, exact place, and time of sampling or
measurements;
b. The individual(s) who performed the sampling or
measurements;
c. The date(s) and time(s) analyses were performed;
d. The individual(s) who performed the analyses;
e. The analytical techniques or methods used; and
f. The results of such analyses.
2. The operator shall retain records of all monitoring
information, including all calibration and maintenance records and all original
strip chart recordings for continuous monitoring instrumentation, copies of all
reports required by this state permit, and records of all data used to
complete the registration statement for this state permit, for a period
of at least three years from the date of the sample, measurement, report or
request for coverage. This period of retention shall be extended automatically
during the course of any unresolved litigation regarding the regulated activity
or regarding control standards applicable to the operator, or as requested by
the board.
C. Reporting monitoring results.
1. The operator shall update the SWPPP to include the results
of the monitoring as may be performed in accordance with this state
permit, unless another reporting schedule is specified elsewhere in this state
permit.
2. Monitoring results shall be reported on a discharge
monitoring report (DMR); on forms provided, approved or specified by the
department; or in any format provided that the date, location, parameter,
method, and result of the monitoring activity are included.
3. If the operator monitors any pollutant specifically
addressed by this permit more frequently than required by this state
permit using test procedures approved under 40 CFR Part 136 (2001) or
using other test procedures approved by the U.S. Environmental Protection
Agency or using procedures specified in this permit, the results of this
monitoring shall be included in the calculation and reporting of the data
submitted in the DMR or reporting form specified by the department.
4. Calculations for all limitations which require averaging of
measurements shall utilize an arithmetic mean unless otherwise specified in
this state permit.
D. Duty to provide information. The operator shall furnish,
within a reasonable time, any information which the board, department, or other
permit-issuing VSMP authority may request to determine whether
cause exists for modifying, revoking and reissuing, or terminating this state
permit or to determine compliance with this state permit. The board,
department, or other permit-issuing VSMP authority may require
the operator to furnish, upon request, such plans, specifications, and other
pertinent information as may be necessary to determine the effect of the wastes
from his discharge on the quality of state waters, or such other information as
may be necessary to accomplish the purposes of the CWA and the Virginia
Stormwater Management Act. The operator shall also furnish to the board,
department, or other permit-issuing VSMP authority, upon request,
copies of records required to be kept by this state permit.
E. Compliance schedule reports. Reports of compliance or
noncompliance with, or any progress reports on, interim and final requirements
contained in any compliance schedule of this state permit shall be
submitted no later than 14 days following each schedule date.
F. Unauthorized stormwater discharges. Pursuant to § 10.1-603.2:2
A of the Code of Virginia, except in compliance with a state permit
issued by the permit-issuing authority department, it
shall be unlawful to cause a stormwater discharge from a construction activity.
G. Reports of unauthorized discharges. Any operator who
discharges or causes or allows a discharge of sewage, industrial waste, other
wastes or any noxious or deleterious substance or a hazardous substance or oil
in an amount equal to or in excess of a reportable quantity established under
either 40 CFR Part 110 (2002), 40 CFR Part 117 (2002), or 40 CFR Part 302
(2002) that occurs during a 24-hour period into or upon state waters or who
discharges or causes or allows a discharge that may reasonably be expected to
enter state waters, shall notify the Department of Environmental Quality of the
discharge immediately upon discovery of the discharge, but in no case later
than within 24 hours after said discovery. A written report of the unauthorized
discharge shall be submitted to the department, the Department of Environmental
Quality, and the permit-issuing VSMP authority within five days
of discovery of the discharge. The written report shall contain:
1. A description of the nature and location of the discharge;
2. The cause of the discharge;
3. The date on which the discharge occurred;
4. The length of time that the discharge continued;
5. The volume of the discharge;
6. If the discharge is continuing, how long it is expected to
continue;
7. If the discharge is continuing, what the expected total
volume of the discharge will be; and
8. Any steps planned or taken to reduce, eliminate and prevent
a recurrence of the present discharge or any future discharges not authorized
by this state permit.
Discharges reportable to the department, the Department of
Environmental Quality, and the permit-issuing VSMP authority
under the immediate reporting requirements of other regulations are exempted
from this requirement.
H. Reports of unusual or extraordinary discharges. If any
unusual or extraordinary discharge including a "bypass" or
"upset", as defined herein, should occur from a facility and the
discharge enters or could be expected to enter state waters, the operator shall
promptly notify, in no case later than within 24 hours, the department, the
Department of Environmental Quality, and the permit-issuing VSMP
authority by telephone after the discovery of the discharge. This notification
shall provide all available details of the incident, including any adverse
effects on aquatic life and the known number of fish killed. The operator shall
reduce the report to writing and shall submit it to the department, the
Department of Environmental Quality, and the permit-issuing VSMP
authority within five days of discovery of the discharge in accordance with
Section III I 2. Unusual and extraordinary discharges include but are not
limited to any discharge resulting from:
1. Unusual spillage of materials resulting directly or
indirectly from processing operations;
2. Breakdown of processing or accessory equipment;
3. Failure or taking out of service of some or all of the
facilities; and
4. Flooding or other acts of nature.
I. Reports of noncompliance. The operator shall report any
noncompliance which may adversely affect state waters or may endanger public
health.
1. An oral report to the department, the Department of
Environmental Quality, and the permit-issuing VSMP authority
shall be provided within 24 hours from the time the operator becomes aware of
the circumstances. The following shall be included as information that shall be
reported within 24 hours under this subdivision:
a. Any unanticipated bypass; and
b. Any upset that causes a discharge to state waters.
2. A written report shall be submitted within five days and
shall contain:
a. A description of the noncompliance and its cause;
b. The period of noncompliance, including exact dates and
times, and if the noncompliance has not been corrected, the anticipated time it
is expected to continue; and
c. Steps taken or planned to reduce, eliminate, and prevent
reoccurrence of the noncompliance.
The permit-issuing authority department may
waive the written report on a case-by-case basis for reports of noncompliance
under Section III I if the oral report has been received within 24 hours and no
adverse impact on state waters has been reported.
3. The operator shall report all instances of noncompliance
not reported under Section III I 1 or 2 in writing as part of the SWPPP. The
reports shall contain the information listed in Section III I 2.
NOTE: The reports required in Section III G, H and I shall be
made to the department's Stormwater Program Section of the Division of Soil
and Water Conservation Management Division, appropriate Department
of Environmental Quality's Regional Office Pollution Response Program, and the permit-issuing
VSMP authority. Reports may be made by telephone or by fax. For reports
outside normal working hours, leaving a recorded message shall fulfill the
immediate reporting requirement. For emergencies, the Virginia Department of
Emergency Management maintains a 24-hour telephone service at 1-800-468-8892.
4. Where the operator becomes aware of a failure to submit any
relevant facts, or submittal of incorrect information in any report, including
a registration statement, to the department or the permit-issuing VSMP
authority, the operator shall promptly submit such facts or correct
information.
J. Notice of planned changes.
1. The operator shall give notice to the permit-issuing
department and the VSMP authority as soon as possible of any planned
physical alterations or additions to the permitted facility or activity. Notice
is required only when:
a. The operator plans an alteration or addition to any
building, structure, facility, or installation that may meet one of the
criteria for determining whether a facility is a new source in 4VAC50-60-420;
b. The operator plans an alteration or addition that would
significantly change the nature or increase the quantity of pollutants
discharged. This notification applies to pollutants that are not subject to
effluent limitations in this state permit; or
2. The operator shall give advance notice to the permit-issuing
department and VSMP authority of any planned changes in the permitted
facility or activity, which may result in noncompliance with state
permit requirements.
K. Signatory requirements.
1. Registration statement. All registration statements shall
be signed as follows:
a. For a corporation: by a responsible corporate officer. For
the purpose of this part, a responsible corporate officer means: (i) a
president, secretary, treasurer, or vice-president of the corporation in charge
of a principal business function, or any other person who performs similar
policy-making or decision-making functions for the corporation; or (ii) the
manager of one or more manufacturing, production, or operating facilities,
provided the manager is authorized to make management decisions that govern the
operation of the regulated facility including having the explicit or implicit
duty of making major capital investment recommendations, and initiating and
directing other comprehensive measures to assure long-term compliance with
environmental laws and regulations; the manager can ensure that the necessary
systems are established or actions taken to gather complete and accurate
information for state permit application requirements; and where
authority to sign documents has been assigned or delegated to the manager in
accordance with corporate procedures;
b. For a partnership or sole proprietorship: by a general
partner or the proprietor, respectively; or
c. For a municipality, state, federal, or other public agency:
by either a principal executive officer or ranking elected official. For
purposes of this part, a principal executive officer of a public agency
includes: (i) the chief executive officer of the agency or (ii) a senior
executive officer having responsibility for the overall operations of a
principal geographic unit of the agency.
2. Reports, etc. All reports required by state permits,
including SWPPPs, and other information requested by the board, or
the department, or the permit-issuing authority shall be signed by a
person described in Section III K 1 or by a duly authorized representative of
that person. A person is a duly authorized representative only if:
a. The authorization is made in writing by a person described
in Section III K 1;
b. The authorization specifies either an individual or a
position having responsibility for the overall operation of the regulated
facility or activity such as the position of plant manager, operator of a well
or a well field, superintendent, position of equivalent responsibility, or an
individual or position having overall responsibility for environmental matters
for the operator. (A duly authorized representative may thus be either a named
individual or any individual occupying a named position); and
c. The signed and dated written authorization is included in
the SWPPP. A copy must be provided to the permit-issuing department
and VSMP authority, if requested.
3. Changes to authorization. If an authorization under Section
III K 2 is no longer accurate because a different individual or position has
responsibility for the overall operation of the construction activity, a new
authorization satisfying the requirements of Section III K 2 shall be submitted
to the permit-issuing VSMP authority as the administering
entity for the board prior to or together with any reports or information
to be signed by an authorized representative.
4. Certification. Any person signing a document under Section
III K 1 or 2 shall make the following certification:
"I certify under penalty of law that I have read and
understand this document and that this document and all attachments were
prepared in accordance with a system designed to assure that qualified
personnel properly gathered and evaluated the information submitted. Based on
my inquiry of the person or persons who manage the system, or those persons
directly responsible for gathering the information, the information submitted
is, to the best of my knowledge and belief, true, accurate, and complete. I am
aware that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment for knowing
violations."
L. Duty to comply. The operator shall comply with all
conditions of this state permit. Any state permit noncompliance
constitutes a violation of the Virginia Stormwater Management Act and the Clean
Water Act, except that noncompliance with certain provisions of this state
permit may constitute a violation of the Virginia Stormwater Management Act but
not the Clean Water Act. Permit noncompliance is grounds for enforcement
action; for state permit termination, revocation and reissuance, or
modification; or denial of a state permit renewal application.
The operator shall comply with effluent standards or
prohibitions established under § 307(a) of the Clean Water Act for toxic
pollutants within the time provided in the regulations that establish these
standards or prohibitions or standards for sewage sludge use or disposal, even
if this state permit has not yet been modified to incorporate the
requirement.
M. Duty to reapply. If the operator wishes to continue an
activity regulated by this permit after the expiration date of this state
permit, the operator shall submit a new registration statement at least 90 days
before the expiration date of the existing state permit, unless
permission for a later date has been granted by the board. The board shall not
grant permission for registration statements to be submitted later than the
expiration date of the existing state permit.
N. Effect of a state permit. This state permit
does not convey any property rights in either real or personal property or any
exclusive privileges, nor does it authorize any injury to private property or
invasion of personal rights, or any infringement of federal, state or local law
or regulations.
O. State law. Nothing in this state permit shall be
construed to preclude the institution of any legal action under, or relieve the
operator from any responsibilities, liabilities, or penalties established
pursuant to any other state law or regulation or under authority preserved by §
510 of the Clean Water Act. Except as provided in state permit
conditions on "bypassing" (Section III U) and "upset"
(Section III V), nothing in this state permit shall be construed to
relieve the operator from civil and criminal penalties for noncompliance.
P. Oil and hazardous substance liability. Nothing in this state
permit shall be construed to preclude the institution of any legal action or
relieve the operator from any responsibilities, liabilities, or penalties to
which the operator is or may be subject under §§ 62.1-44.34:14 through
62.1-44.34:23 of the State Water Control Law or § 311 of the Clean Water
Act.
Q. Proper operation and maintenance. The operator shall at
all times properly operate and maintain all facilities and systems of treatment
and control (and related appurtenances), which are installed or used by the
operator to achieve compliance with the conditions of this state permit.
Proper operation and maintenance also includes effective plant performance,
adequate funding, adequate staffing, and adequate laboratory and process
controls, including appropriate quality assurance procedures. This provision
requires the operation of back-up or auxiliary facilities or similar systems,
which are installed by the operator only when the operation is necessary to
achieve compliance with the conditions of this state permit.
R. Disposal of solids or sludges. Solids, sludges or other
pollutants removed in the course of treatment or management of pollutants shall
be disposed of in a manner so as to prevent any pollutant from such materials
from entering state waters and in compliance with all applicable state and
federal laws and regulations.
S. Duty to mitigate. The operator shall take all reasonable
steps to minimize or prevent any discharge in violation of this state
permit that has a reasonable likelihood of adversely affecting human health or
the environment.
T. Need to halt or reduce activity not a defense. It shall
not be a defense for an operator in an enforcement action that it would have
been necessary to halt or reduce the permitted activity in order to maintain
compliance with the conditions of this state permit.
U. Bypass.
1. "Bypass,", as defined in
4VAC50-60-10, means the intentional diversion of waste streams from any portion
of a treatment facility. The operator may allow any bypass to occur that does
not cause effluent limitations to be exceeded, but only if it also is for essential
maintenance to ensure efficient operation. These bypasses are not subject to
the provisions of Section III U 2 and 3 herein.
2. Notice.
a. Anticipated bypass. If the operator knows in advance of the
need for a bypass, the operator shall submit prior notice to the department, if
possible at least 10 days before the date of the bypass.
b. Unanticipated bypass. The operator shall submit notice of
an unanticipated bypass as required in Section III I herein.
3. Prohibition of bypass.
a. Except as provided in Section III U 1, bypass is
prohibited, and the permit-issuing authority board or department
may take enforcement action against an operator for bypass unless:
(1) Bypass was unavoidable to prevent loss of life, personal
injury, or severe property damage. Severe property damage means substantial
physical damage to property, damage to the treatment facilities that causes
them to become inoperable, or substantial and permanent loss of natural
resources that can reasonably be expected to occur in the absence of a bypass.
Severe property damage does not mean economic loss caused by delays in
production;
(2) There were no feasible alternatives to the bypass, such as
the use of auxiliary treatment facilities, retention of untreated wastes, or
maintenance during normal periods of equipment downtime. This condition is not
satisfied if adequate back-up equipment should have been installed in the
exercise of reasonable engineering judgment to prevent a bypass that occurred
during normal periods of equipment downtime or preventive maintenance; and
(3) The operator submitted notices as required under Section
III U 2.
b. The permit-issuing authority department may
approve an anticipated bypass, after considering its adverse effects, if the permit-issuing
authority department determines that it will meet the three
conditions listed in Section III U 3 a.
V. Upset.
1. An upset, as defined in 4VAC50-60-10, means an exceptional
incident in which there is unintentional and temporary noncompliance with
technology-based state permit effluent limitations because of factors
beyond the reasonable control of the operator. An upset does not include
noncompliance to the extent caused by operational error, improperly designed
treatment facilities, inadequate treatment facilities, lack of preventive
maintenance, or careless or improper operation.
2. An upset constitutes an affirmative defense to an action
brought for noncompliance with technology-based state permit effluent
limitations if the requirements of Section III V 2 herein are met. A
determination made during administrative review of claims that noncompliance
was caused by upset, and before an action for noncompliance, is not a final
administrative action subject to judicial review.
3. An upset does not include noncompliance to the extent
caused by operational error, improperly designed treatment facilities,
inadequate treatment facilities, lack of preventative maintenance, or careless
or improper operation.
4. An operator who wishes to establish the affirmative defense
of upset shall demonstrate, through properly signed, contemporaneous operating
logs or other relevant evidence that:
a. An upset occurred and that the operator can identify the
cause(s) of the upset;
b. The permitted facility was at the time being properly
operated;
c. The operator submitted notice of the upset as required in
Section III I herein; and
d. The operator complied with any remedial measures required
under Section III S herein.
5. In any enforcement proceeding, the operator seeking to
establish the occurrence of an upset has the burden of proof.
W. Inspection and entry. The operator shall allow the
department as the board's designee, the permit-issuing VSMP
authority, EPA, or an authorized representative of either entity (including an
authorized contractor), upon presentation of credentials and other documents as
may be required by law to:
1. Enter upon the operator's premises where a regulated
facility or activity is located or conducted, or where records must be kept
under the conditions of this state permit;
2. Have access to and copy, at reasonable times, any records
that must be kept under the conditions of this state permit;
3. Inspect and photograph at reasonable times any facilities,
equipment (including monitoring and control equipment), practices, or
operations regulated or required under this state permit; and
4. Sample or monitor at reasonable times, for the purposes of
ensuring state permit compliance or as otherwise authorized by the Clean
Water Act or the Virginia Stormwater Management Act, any substances or
parameters at any location.
For purposes of this section, the time for inspection shall
be deemed reasonable during regular business hours, and whenever the facility
is discharging. Nothing contained herein shall make an inspection unreasonable
during an emergency.
X. Permit State permit actions. Permits State
permits may be modified, revoked and reissued, or terminated for cause. The
filing of a request by the operator for a state permit modification,
revocation and reissuance, or termination, or a notification of planned changes
or anticipated noncompliance does not stay any state permit condition.
Y. Transfer of state permits.
1. Permits State permits are not transferable to
any person except after notice to the permit-issuing authority department.
Except as provided in Section III Y 2, a state permit may be transferred
by the operator to a new operator only if the state permit has been
modified or revoked and reissued, or a minor modification made, to identify the
new operator and incorporate such other requirements as may be necessary under
the Virginia Stormwater Management Act and the Clean Water Act.
2. As an alternative to transfers under Section III Y 1, this state
permit may be automatically transferred to a new operator if:
a. The current operator notifies the permit-issuing
authority department at least 30 days in advance of the proposed
transfer of the title to the facility or property;
b. The notice includes a written agreement between the
existing and new operators containing a specific date for transfer of state
permit responsibility, coverage, and liability between them; and
c. The permit-issuing authority department does
not notify the existing operator and the proposed new operator of its intent to
modify or revoke and reissue the state permit. If this notice is not
received, the transfer is effective on the date specified in the agreement
mentioned in Section III Y 2 b.
3. For ongoing construction activity involving a change of
operator, the new operator shall accept and maintain the existing SWPPP, or
prepare and implement a new SWPPP prior to taking over operations at the site.
Z. Severability. The provisions of this state permit
are severable, and if any provision of this state permit or the
application of any provision of this state permit to any circumstance,
is held invalid, the application of such provision to other circumstances and
the remainder of this state permit shall not be affected thereby.
Part XV
General Virginia Stormwater Management Program (VSMP) Permit for
Discharges of Stormwater from Small Municipal Separate Storm Sewer Systems
4VAC50-60-1200. Definitions.
The words and terms used in this part shall have the meanings
defined in the Act and this chapter unless the context clearly indicates
otherwise, except that for the purposes of this part:
"Date brought on line" means the date when the
operator determines that a new stormwater management facility is properly
functioning to meet its designed pollutant load reduction.
"MS4 Program Plan" means the completed registration
statement and all approved additions, changes and modifications detailing the
comprehensive program implemented by the operator under this state
permit to reduce the pollutants in the stormwater discharged from its municipal
separate storm sewer system (MS4) that has been submitted and accepted by the
department.
"Physically interconnected" means that a MS4
directly discharges to a second MS4.
4VAC50-60-1210. Purpose; delegation of authority; effective
date of the state permit.
A. This VSMP general permit regulation governs
stormwater discharges from regulated small municipal separate storm sewer
systems (regulated small MS4s) to surface waters of the Commonwealth of
Virginia.
1. Unless the small MS4 qualifies for a waiver under
subdivision 3 of this subsection, operators are regulated if they operate a
small MS4, including but not limited to systems operated by federal, state,
tribal, and local governments, including the Virginia Department of
Transportation; and:
a. The small MS4 is located in an urbanized area as determined
by the latest Decennial Census by the Bureau of the Census. If the small MS4 is
not located entirely within an urbanized area, only the portion that is within
the urbanized area is regulated; or
b. The small MS4 is designated by the board, including where
the designation is pursuant to 40 CFR Part 123.35 (b)(3) or (b)(4) (2001), or
is based upon a petition under 4VAC50-60-380 D.
2. A small MS4 may be the subject of a petition pursuant to
4VAC50-60-380 D to the board to require a VSMP state permit for
their discharge of stormwater. If the board determines that a small MS4 needs a
state permit and the operator applies for coverage under this general
permit, the operator is required to comply with the requirements of Part XV
(4VAC50-60-1180 et seq.) of this chapter.
3. The board may waive the requirements otherwise applicable
to a regulated small MS4 if it meets the criteria of subdivision 4 or 5 of this
subsection. If a waiver is received under this subsection, the operator may
subsequently be required to seek coverage under a VSMP state
permit in accordance with 4VAC50-60-400 C if circumstances change. (See also 40
CFR Part 123.35 (b) (2001))
4. The board may waive state permit coverage if the
regulated small MS4 serves a population of less than 1,000 within the urbanized
area and meets the following criteria:
a. The system is not contributing substantially to the
pollutant loadings of a physically interconnected MS4 that is regulated by the VSMP
state stormwater program; and
b. Pollutants are discharged that have been identified as a
cause of impairment of any water body to which the regulated small MS4
discharges but stormwater controls are not needed based on wasteload
allocations that are part of a State Water Control Board established and EPA
approved "total maximum daily load" (TMDL) that addresses the
pollutants of concern.
5. The board may waive state permit coverage if the
regulated small MS4 serves a population under 10,000 and meets the following
criteria:
a. The State Water Control Board has evaluated all surface
waters, including small streams, tributaries, lakes, and ponds, that receive a
discharge from the regulated small MS4;
b. For all such waters, the board has determined that
stormwater controls are not needed based on wasteload allocations that are part
of a State Water Control Board established and EPA approved TMDL that addresses
the pollutants of concern or, if a TMDL has not been developed and approved, an
equivalent analysis that determines sources and allocations for the pollutants
of concern;
c. For the purpose of this subdivision, the pollutants of
concern include biochemical oxygen demand (BOD), sediment or a parameter that
addresses sediment (such as total suspended solids, turbidity or siltation),
pathogens, oil and grease, and any pollutant that has been identified as a
cause of impairment of any water body that will receive a discharge from the
regulated small MS4; and
d. The board has determined that future discharges from the
regulated small MS4 do not have the potential to result in exceedances of water
quality standards, including impairment of designated uses, or other
significant water quality impacts, including habitat and biological impacts.
B. This general permit will become effective on July 9, 2008,
and will expire five years from the effective date.
4VAC50-60-1220. Authorization to discharge.
A. Any operator governed by this general permit is hereby
authorized to discharge stormwater from the regulated small MS4 to surface
waters of the Commonwealth of Virginia provided that the operator files and
receives acceptance of the registration statement of 4VAC50-60-1230 by the
department and files the permit fees required by Part XIII (4VAC50-60-700 et
seq.) of this chapter, and provided that the operator shall not have been
required to obtain an individual permit according to 4VAC50-60-410 B.
B. The operator shall not be authorized by this general
permit to discharge to state waters specifically named in other State Water
Control Board or board regulations or policies that prohibit such discharges.
C. Nonstormwater discharges or flows into the regulated small
MS4 are authorized by this state permit and do not need to be addressed
in the MS4 Program required under 4VAC50-60-1240, Section II B 3, if:
1. The nonstormwater discharges or flows are covered by a
separate individual or general VPDES or VSMP state permit for
nonstormwater discharges;
2. The individual nonstormwater discharges or flows have been
identified in writing by the Department of Environmental Quality as de minimis
discharges that are not significant sources of pollutants to state waters and
do not require a VPDES permit;
3. Nonstormwater discharges or flows in the following
categories have not been identified by the operator, State Water Control Board,
or by the board as significant contributors of pollutants to the regulated
small MS4: water line flushing, landscape irrigation, diverted stream flows,
rising ground waters, uncontaminated ground water infiltration, uncontaminated
pumped ground water, discharges from potable water sources, foundation drains,
air conditioning condensation, irrigation water, springs, water from crawl
space pumps, footing drains, lawn watering, individual residential car washing,
flows from riparian habitats and wetlands, dechlorinated swimming pool
discharges, street wash water, and discharges or flows from fire fighting
activities; or
4. The discharge of materials resulting from a spill is
necessary to prevent loss of life, personal injury, or severe property damage.
The operator shall take, or ensure that the responsible party takes, all
reasonable steps to minimize or prevent any adverse effect on human health or
the environment. This state permit does not transfer liability for a
spill itself from the party(ies) responsible for the spill to the operator nor
relieve the party(ies) responsible for a spill from the reporting requirements
of 40 CFR Part 117 and 40 CFR Part 302 (2001).
In the event the operator is unable to meet certain
conditions of this permit due to circumstances beyond the operator's control, a
written explanation of the circumstances that prevented state permit
compliance shall be submitted to the department in the annual report.
Circumstances beyond the control of the operator may include abnormal climatic
conditions; weather conditions that make certain requirements unsafe or
impracticable; or unavoidable equipment failures caused by weather conditions
or other conditions beyond the reasonable control of the operator (operator
error is not a condition beyond the control of the operator). The failure to
provide adequate program funding, staffing or equipment maintenance shall not
be an acceptable explanation for failure to meet state permit
conditions. The board will determine, at its sole discretion, whether the
reported information will result in an enforcement action.
D. Discharges that are excluded from obtaining a VSMP state
permit pursuant to 4VAC50-60-300 are exempted from the regulatory requirements
of this state permit.
E. Pursuant to 40 CFR Part 122.34 (c) (2001), for those
portions of a regulated small MS4 that are covered under a VPDES permit for
industrial stormwater discharges, the operator shall follow the conditions
established under the VPDES permit. Upon termination of VPDES permit coverage,
discharges from previously VPDES authorized outfalls shall meet the conditions
of this state permit provided it has been determined by the board that
an individual MS4 permit is not required.
F. Stormwater discharges from specific MS4 outfalls that have
been granted conditional exclusion for "no exposure" of industrial
activities and materials to stormwater under the VPDES permitting program shall
obtain coverage under this VSMP general permit. The Department of
Environmental Quality is responsible for determining compliance with the
conditional exclusion under the State Water Control Law and attendant
regulations.
G. Receipt of this VSMP general permit does not
relieve any operator of the responsibility to comply with any other applicable
federal, state or local statute, ordinance or regulation.
4VAC50-60-1230. Permit State permit application
(registration statement).
A. Deadline for submitting a registration statement.
1. Operators of regulated small MS4s designated under
4VAC50-60-1210 A 1 b, that are applying for coverage under this VSMP
general permit must submit a complete registration statement to the department within
180 days of notice of designation, unless the board grants a later date.
2. In order to continue uninterrupted coverage under the VSMP
general permit, operators of regulated small MS4s shall submit a new
registration statement at least 90 days before the expiration date of the
existing state permit, unless permission for a later date has been
granted by the board. The board shall not grant permission for registration
statements to be submitted later than the expiration date of the existing state
permit.
B. Registration statement.
The registration statement shall include the following
information:
1. The name and location (county or city name) of the
regulated small MS4 for which the registration statement is submitted;
2. The name, type (city, county, incorporated town,
unincorporated town, college or university, local school board, military
installation, transportation system, federal or state facility, or other), and
address of the operator of the regulated small MS4;
3. The Hydrologic Unit Code(s) as identified in the most
recent version of Virginia's 6th Order National Watershed Boundary Dataset
(available online at http://www.dcr.virginia.gov/soil_&_water/hu.shtml)
currently receiving discharges or that have potential to receive discharges from
the regulated small MS4;
4. The estimated drainage area, in acres, served by the
regulated small MS4 directly discharging to any impaired receiving surface
waters listed in the 2006 Virginia 305(b)/303(d) Water Quality Assessment
Integrated Report, and a description of the land use for each such drainage
area;
5. A listing of any TMDL wasteloads allocated to the regulated
small MS4. This information may be found at:
http://www.deq.state.va.us/tmdl/develop.html;
6. The name(s) of any regulated physically interconnected MS4s
to which the regulated small MS4 discharges;
7. A copy of the MS4 Program Plan that includes:
a. A list of best management practices (BMPs) that the
operator proposes to implement for each of the stormwater minimum control
measures and their associated measurable goals pursuant to 4VAC50-60-1240,
Section II B, that includes:
(1) A list of the existing policies, ordinances, schedules,
inspection forms, written procedures, and other documents necessary for best
management practice implementation; and
(2) The individuals, departments, divisions, or units
responsible for implementing the best management practices;
b. The objective and expected results of each best management
practice in meeting the measurable goals of the stormwater minimum control
measures;
c. The implementation schedule including any interim
milestones for the implementation of a proposed new best management practice;
and
d. The method that will be utilized to determine the
effectiveness of each best management practice and the MS4 Program as a whole;
8. A list of all existing signed agreements between the
operator and any applicable third parties where the operator has entered into
an agreement in order to implement minimum control measures or portions of
minimum control measures;
9. The name, address, telephone number and email address of
either the principal executive officer or ranking elected official as defined
in 4VAC50-60-370;
10. The name, position title, address, telephone number and
email address of any duly authorized representative as defined in
4VAC50-60-370; and
11. The following certification: "I certify under penalty
of law that this document and all attachments were prepared under my direction
or supervision in accordance with a system designed to assure that qualified
personnel properly gather and evaluate the information submitted. Based on my
inquiry of the person or persons who manage the system, or those persons directly
responsible for gathering the information, the information submitted is, to the
best of my knowledge and belief, true, accurate, and complete. I am aware that
there are significant penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations."
C. The registration statement shall be signed by the
principal executive officer or ranking elected official in accordance with
4VAC50-60-370.
D. An operator may file its own registration statement, or the
operator and other operators of regulated small MS4s may jointly submit a
registration statement. If responsibilities for meeting the stormwater minimum
control measures will be shared with other municipalities or governmental
entities, the registration statement must describe which stormwater minimum
control measures the operator will implement and identify the entities that
will implement the other stormwater minimum control measures within the area
served by the regulated small MS4.
E. Where to submit. The registration statement shall be
submitted to:
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Department of Conservation and Recreation
Division of Soil and Water Conservation
Stormwater Permitting
203 Governor Street, Suite 206
Richmond, VA 23219
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4VAC50-60-1240. General permit.
Any operator whose registration statement is accepted by the
department will receive coverage under the following state permit and
shall comply with the requirements therein and be subject to all applicable
requirements of the Virginia Stormwater Management Act (Article 1.1 (§ 10.1-603.1
et seq.) of Chapter 6 of Title 10.1 of the Code of Virginia) and the Virginia
Stormwater Management Program (VSMP) Permit Regulations (4VAC50-60).
General Permit No.: VAR04
Effective Date: July 9, 2008
Expiration Date: July 8, 2013
GENERAL PERMIT FOR DISCHARGES OF STORMWATER FROM SMALL
MUNICIPAL SEPARATE STORM SEWER SYSTEMS
AUTHORIZATION TO DISCHARGE UNDER THE VIRGINIA STORMWATER
MANAGEMENT PROGRAM AND THE VIRGINIA STORMWATER MANAGEMENT ACT
In compliance with the provisions of the Clean Water Act, as
amended and pursuant to the Virginia Stormwater Management Act and regulations
adopted pursuant thereto, this state permit authorizes operators of
small municipal separate storm sewer systems to discharge to surface waters
within the boundaries of the Commonwealth of Virginia, except those waters
specifically named in State Water Control Board and Virginia Soil and Water
Conservation Board regulations or policies which prohibit such discharges.
The authorized discharge shall be in accordance with this
cover page, Section I—Discharge Authorization and Special Conditions, Section
II—MS4 Program and Section III—Conditions Applicable To All VSMP State
Permits, as set forth herein. The operator shall utilize all legal authority
provided by the laws and regulations of the Commonwealth of Virginia to control
discharges to and from the MS4. This legal authority may be a combination of
statute, ordinance, permit, contract, order or interjurisdictional agreements.
SECTION I
DISCHARGE AUTHORIZATION AND SPECIAL CONDITIONS
A. Coverage under this state permit. During the period
beginning with the date of coverage under this general permit and lasting until
the expiration and reissuance of this state permit, the operator is
authorized to discharge in accordance with this state permit from the
small municipal separate storm sewer system identified in the registration
statement into surface waters.
B. Special conditions. A total maximum daily load (TMDL)
approved by the State Water Control Board may include a wasteload allocation to
the regulated small MS4 that identifies the pollutant for which stormwater
controls are necessary for the surface waters to meet water quality standards.
The pollutant identified in a wasteload allocation as of the effective date of
this permit must be addressed through the measurable goals of the MS4 Program
Plan. A wasteload allocation does not establish that the operator of a
regulated small MS4 is in or out of compliance with the conditions of this
permit.
1. The operator shall update its MS4 Program Plan to include
measurable goals, schedules, and strategies to ensure MS4 Program consistency
with the assumptions of the TMDL WLA within 18 months of permit coverage; or,
within 18 months of the effective date of any reopening of this permit to
include wasteloads allocated to the regulated small MS4 after issuance of
permit coverage.
2. The measurable goals, schedules, strategies, and other best
management practices (BMPs), required in an updated MS4 Program Plan to assure
MS4 Program consistency with an approved TMDL for the pollutant identified in a
WLA are, at a minimum:
a. The operator shall develop a list of its current ordinances
and legal authorities, BMPs, policies, plans, procedures and contracts
implemented as part of the MS4 Program that are applicable to reducing the
pollutant identified in a WLA.
b. The operator shall evaluate existing ordinances and legal
authorities, BMPs, policies, plans, procedures and contracts of the existing
MS4 Program to determine the effectiveness of the MS4 Program in addressing
reductions of the pollutant identified in the WLA. The evaluation shall
identify any weakness or limitation in the MS4 Program to reduce the pollutant
identified in the WLA in a manner consistent with the TMDL.
c. The operator shall develop a schedule to implement
procedures and strategies that address the MS4 Program weaknesses such as
timetables to update existing ordinances and legal authorities within two
years, BMPs, policies, plans, procedures and contracts to ensure consistency
with the assumptions of the TMDL WLA. When possible, source elimination shall
be prioritized over load reduction.
d. The operator shall implement the schedule established in
Section I B 2 c.
3. The operator shall integrate an awareness campaign into its
existing public education and outreach program that promotes methods to
eliminate and reduce discharges of the pollutant identified in the WLA. This
may include additional employee training regarding the sources and methods to
eliminate and minimize the discharge of the pollutant identified in the WLA.
4. The operator is encouraged to participate as a stakeholder
in the development of any implementation plans developed to address the TMDL
and shall incorporate applicable best management practices identified in the
TMDL implementation plan in their MS4 Program Plan. The operator may choose to
implement BMPs of equivalent design and efficiency instead of those identified
in the TMDL implementation plan, provided that the rationale for any
substituted BMP is provided and the substituted BMP is consistent with the TMDL
and the WLA.
5. The operator shall develop and implement outfall
reconnaissance procedures to identify potential sources of the pollutant identified
in the WLA from anthropogenic activities. The operator shall conduct
reconnaissance in accordance with the following:
a. Should the operator have 250 or more total outfalls
discharging to the surface water identified in the WLA, the operator shall
perform reconnaissance on a minimum of 250 outfalls for each WLA assigned at
least once during the five-year permit period and shall perform reconnaissance
on a minimum of 35 outfalls per year.
b. Should the operator have less than 250 total outfalls discharging
to an identified surface water, the operator shall perform reconnaissance on
all outfalls during the five-year permit period and shall annually conduct
reconnaissance on a minimum of 15% of its known MS4 outfalls discharging to the
surface water for which the WLA has been assigned.
The department recommends that the operator review the
publication entitled "Illicit Discharge Detection and Elimination: A
Guidance Manual for Program Development and Technical Assessments," EPA
cooperative agreement number X-82907801-0, for guidance in implementing its
outfall reconnaissance procedures. The operator shall implement procedures
designed to reduce the discharge of the pollutant in a manner consistent with
the TMDL. Physically interconnected MS4s may coordinate outfall reconnaissance
to meet the requirements of this subdivision.
6. The operator shall evaluate all properties owned or
operated by the MS4 operator that are not covered under a separate VPDES permit
for potential sources of the pollutant identified in the WLA. Within three
years of the required date for updating the MS4 Program Plan, the operator
shall conduct a site review and characterize the runoff for those properties
where it determines that the pollutant identified in the WLA is currently stored,
or has been transferred, transported or historically disposed of in a manner
that would expose it to precipitation in accordance with the following
schedule:
a. As a part of the site review, the operator shall collect a
total of two samples from a representative outfall for each identified
municipal property. One sample shall be taken during each of the following
six-month periods: October through March, and April through September.
b. All collected samples shall be grab samples and collected
within the first 30 minutes of a runoff producing event that is greater than
0.1 inches in magnitude and that occurs at least 72 hours from the previous
measurable (greater than 0.1 inch rainfall) storm event. The required 72-hour
storm event interval is waived where the preceding measurable storm event did
not result in a measurable discharge from the property. The required 72-hour
storm event interval may also be waived where the operator documents that less
than a 72-hour interval is representative for local storm events during the
season when sampling is being conducted. Analytical methods shall be conducted
according to procedures approved under 40 CFR Part 136 or alternative methods
approved by the Environmental Protection Agency (EPA). Where an approved 40 CFR
Part 136 method does not exist, the operator must use a method consistent with
the TMDL.
c. For properties where there is found to be a discharge of
the pollutant identified in the WLA, the operator shall develop and implement a
schedule to minimize the discharge of the pollutant identified in the WLA in a
manner consistent with the approved TMDL.
7. The operator shall conduct an annual characterization that
estimates the volume of stormwater discharged, in cubic feet, and the quantity
of pollutant identified in the WLA, in a unit consistent with the WLA,
discharged by the regulated small MS4.
8. As part of the annual evaluation, the operator shall update
the MS4 Program Plan to include any new information regarding the TMDL in order
to ensure consistency with the TMDL.
9. Along with reporting requirements in Section II E, the
operator shall include the following with each annual report:
a. Copies of any updates to the MS4 Program Plan completed
during the reporting cycle and any new information regarding the TMDL in order
to evaluate its ability to assure the consistency of its discharge with the
assumptions of the TMDL WLA.
b. The estimate of the volume of stormwater discharged, in
cubic feet, and the quantity of pollutant identified in the WLA, in a unit
consistent with the WLA discharged by the regulated small MS4 for each WLA.
SECTION II
MUNICIPAL SEPARATE STORM SEWER SYSTEM MANAGEMENT PROGRAM
A. The operator of a regulated small MS4 must develop,
implement, and enforce a MS4 Program designed to reduce the discharge of
pollutants from the regulated small MS4 to the maximum extent practicable
(MEP), to protect water quality, to ensure compliance by the operator with
water quality standards, and to satisfy the appropriate water quality
requirements of the Clean Water Act and regulations. The MS4 Program must
include the minimum control measures described in paragraph B of this section.
Implementation of best management practices consistent with the provisions of
an iterative MS4 Program required pursuant to this section constitutes
compliance with the standard of reducing pollutants to the "maximum extent
practicable", protects water quality in the absence of a TMDL wasteload
allocation, ensures compliance by the operator with water quality standards,
and satisfies the appropriate water quality requirements of the Clean Water Act
and regulations in the absence of a TMDL WLA. The requirements of this section
and those special conditions set out in Section I B also apply where a WLA is
applicable.
No later than January 9, 2009, the operator shall review its
existing MS4 Program Plan and submit a schedule to develop and implement
programs to meet the conditions established by this permit. For operators of
regulated small MS4s that are applying for initial coverage under this general
permit, the schedule to develop and implement the MS4 Program Plan shall be
submitted with the completed registration statement.
B. Minimum control measures.
1. Public education and outreach on stormwater impacts.
Implement a public education program to distribute educational materials to the
community or conduct equivalent outreach activities about the impacts of
stormwater discharges on water bodies and the steps that the public can take to
reduce pollutants in stormwater runoff. The department recommends that the
operator review the Environmental Protection Agency (EPA) publication entitled
"Getting in Step: A Guide for Conducting Watershed Outreach
Campaigns," publication number EPA 841-B-03-002, for guidance in developing
a public education program.
The operator shall identify, schedule, implement, evaluate and
modify, as necessary, BMPs to meet the following public education and outreach
measurable goals:
a. Increased individual and household knowledge about the
steps that they can take to reduce stormwater pollution, placing priority on
reducing impacts to impaired waters and other local water pollution concerns;
b. Increased public employee, business, and general public
knowledge of hazards associated with illegal discharges and improper disposal
of waste, including pertinent legal implications;
c. Increased individual and group involvement in local water
quality improvement initiatives including the promotion of local restoration
and clean up projects, programs, groups, meetings and other opportunities for
public involvement;
d. Diverse strategies to target audiences specific to the area
serviced by the regulated small MS4;
e. Improved outreach program to address viewpoints and
concerns of target audiences, with a recommended focus on minorities,
disadvantaged audiences and minors; and
f. Targeted strategies towards local groups of commercial,
industrial, and institutional entities likely to have significant stormwater
impacts.
2. Public involvement/participation.
The operator shall comply with applicable state, tribal, and
local public notice requirements and identify, schedule, implement, evaluate
and modify, as necessary, BMPs to meet the following public
involvement/participation measurable goals:
a. Promote the availability of the operator's MS4 Program Plan
and any modifications for public review and comment. Public notice shall be
given by any method reasonably calculated to give actual notice of the action
in question to the persons potentially affected by it, including press releases
or any other forum or medium to elicit public participation. Provide access to
or copies of the MS4 Program Plan or any modifications upon request of
interested parties in compliance with all applicable freedom of information
regulations;
b. Provide access to or copies of the annual report upon
request of interested parties in compliance with all applicable freedom of
information regulations; and
c. Participate, through promotion, sponsorship, or other
involvement, in local activities aimed at increasing public participation to
reduce stormwater pollutant loads and improve water quality.
3. Illicit discharge detection and elimination. The MS4
Program shall:
a. Develop, implement and enforce a program to detect and
eliminate illicit discharges, as defined at 4VAC50-60-10, into the regulated
small MS4. The department recommends that the operator review the publication
entitled "Illicit Discharge Detection and Elimination: A Guidance Manual
for Program Development and Technical Assessments," Environmental
Protection Agency (EPA) cooperative agreement number X-82907801-0, for guidance
in implementing and evaluating its illicit discharge detection and elimination
program;
b. Develop, if not already completed, and maintain, an updated
storm sewer system map, showing the location of all known outfalls of the
regulated small MS4 including those physically interconnected to a regulated
MS4, the associated surface waters and HUCs, and the names and locations of all
impaired surface waters that receive discharges from those outfalls. The
operator shall also estimate the acreage within the regulated small MS4
discharging to each HUC and impaired water;
c. To the extent allowable under state, tribal or local law or
other regulatory mechanism, effectively prohibit, through ordinance, or other
regulatory mechanism, nonstormwater discharges into the storm sewer system and
implement appropriate enforcement procedures and actions;
The following categories of nonstormwater discharges or flows
(i.e., illicit discharges) must be addressed only if they are identified by the
operator, the State Water Control Board, or by the board as significant
contributors of pollutants to the regulated small MS4: water line flushing,
landscape irrigation, diverted stream flows, rising ground waters,
uncontaminated ground water infiltration, uncontaminated pumped ground water,
discharges from potable water sources, foundation drains, air conditioning
condensation, irrigation water, springs, water from crawl space pumps, footing
drains, lawn watering, individual residential car washing, flows from riparian
habitats and wetlands, dechlorinated swimming pool discharges, street wash
water, discharges or flows from fire fighting activities, and flows that have
been identified in writing by the Department of Environmental Quality as de
minimis discharges that are not significant sources of pollutants to state
waters and not requiring a VPDES permit;
d. Develop and implement procedures to detect and address
nonstormwater discharges, including illegal dumping, to the regulated small
MS4;
e. Prevent or minimize to the maximum extent practicable, the
discharge of hazardous substances or oil in the stormwater discharge(s) from
the regulated small MS4. In addition, the MS4 Program must be reviewed to identify
measures to prevent the recurrence of such releases and to respond to such
releases, and the program must be modified where appropriate. This permit does
not relieve the operator or the responsible part(ies) of any reporting
requirements of 40 CFR Part 110 (2001), 40 CFR Part 117 (2001) and 40 CFR Part
302 (2001) or § 62.1-44.34:19 of the Code of Virginia;
f. Track the number of illicit discharges identified, provide
narrative on how they were controlled or eliminated, and submit the information
in accordance with Section II E 3; and
g. Notify, in writing, any downstream regulated MS4 to which
the small regulated MS4 is physically interconnected of the small regulated
MS4's connection to that system.
4. Construction site stormwater runoff control.
a. The operator shall develop, implement, and enforce
procedures to reduce pollutants in any stormwater runoff to the regulated small
MS4 from construction activities that result in a land disturbance of greater
than or equal to one acre or equal to or greater than 2,500 square feet in all
areas of the jurisdictions designated as subject to the Chesapeake Bay
Preservation Area Designation and Management Regulations adopted pursuant to
the Chesapeake Bay Preservation Act. Additionally, reduction of stormwater discharges
from construction activity disturbing less than one acre must be included in
the program if that construction activity is part of a larger common plan of
development or sale that would disturb one acre or more.
The procedures must include the development and implementation
of, at a minimum:
(1) An ordinance or other mechanism to require erosion and
sediment controls, as well as sanctions to ensure compliance with the Erosion
and Sediment Control Law and attendant regulations, to the extent allowable
under state, tribal, or local law. Such ordinances and other mechanisms shall
be updated as necessary;
(2) Requirements for construction site owners and operators to
implement appropriate erosion and sediment control best management practices as
part of an erosion and sediment control plan that is consistent with the
Erosion and Sediment Control Law and attendant regulations and other applicable
requirements of state, tribal, or local law. Where determined appropriate by
the operator, the operator shall encourage the use of structural and
nonstructural design techniques to create a design that has the goal of
maintaining or replicating predevelopment runoff characteristics and site
hydrology;
(3) Requirements for construction site owners and operators to
secure authorization to discharge stormwater from construction activities under
a VSMP permit for construction activities that result in a land
disturbance of greater than or equal to one acre or equal to or greater than
2,500 square feet in all areas of the jurisdictions designated as subject to
the Chesapeake Bay Preservation Area Designation and Management Regulations
adopted pursuant to the Chesapeake Bay Preservation Act. Additionally,
stormwater discharges from construction activity disturbing less than one acre
must secure authorization to discharge under a VSMP state permit
if that construction activity is part of a larger common plan of development or
sale that would disturb one acre or more;
(4) Procedures for receipt and consideration of information
submitted by the public; and
(5) Procedures for site inspection and enforcement of control
measures.
b. The operator shall ensure that plan reviewers, inspectors,
program administrators and construction site owners and operators obtain the
appropriate certifications as required under the Erosion and Sediment Control
Law;
c. The operator shall track regulated land-disturbing
activities and submit the following information in accordance with Section II E
3:
(1) Total number of regulated land-disturbing activities; and
(2) Total disturbed acreage.
5. Post-construction stormwater management in new development
and redevelopment.
a. The operator shall develop, implement, and enforce
procedures to address stormwater runoff to the regulated small MS4 from new
development and redevelopment projects that disturb greater than or equal to
one acre or equal to or greater than 2,500 square feet in all areas of the
jurisdictions designated as subject to the Chesapeake Bay Preservation Area
Designation and Management Regulations adopted pursuant to the Chesapeake Bay
Preservation Act, including projects less than one acre that are part of a
larger common plan of development or sale, that discharge into the regulated
small MS4. The procedures must ensure that controls are in place that would
prevent or minimize water quality and quantity impacts in accordance with this
section.
b. The operator shall:
(1) Develop and implement strategies which include a
combination of structural and/or nonstructural best management practices (BMPs)
appropriate for the operator's community. Where determined appropriate by the
operator, the operator shall encourage the use of structural and nonstructural
design techniques to create a design that has the goal of maintaining or
replicating predevelopment runoff characteristics and site hydrology;
(2) Use an ordinance, regulation, or other mechanism to
address post-construction runoff from new development and redevelopment
projects to ensure compliance with the Virginia Stormwater Management Act (§ 10.1-603.1
et seq. of the Code of Virginia) and attendant regulations, and to the extent
allowable under state, tribal or local law. Such ordinances and other
mechanisms shall be updated as necessary;
(3) Require construction site owners and operators to secure
authorization to discharge stormwater from construction activities under a VSMP
permit for new development and redevelopment projects that result in a land
disturbance of greater than or equal to one acre or equal to or greater than
2,500 square feet in all areas of the jurisdictions designated as subject to
the Chesapeake Bay Preservation Area Designation and Management Regulations
adopted pursuant to the Chesapeake Bay Preservation Act. Additionally,
stormwater discharges from construction activity disturbing less than one acre
must secure authorization to discharge under a VSMP state permit
if that construction activity is part of a larger common plan of development or
sale that would disturb one acre or more;
(4) Require adequate long-term operation and maintenance by
the owner of structural stormwater management facilities through requiring the
owner to develop a recorded inspection schedule and maintenance agreement to
the extent allowable under state, tribal or local law or other legal mechanism.
The operator shall additionally develop, through the maintenance agreement or
other method, a mechanism for enforcement of maintenance responsibilities by
the operator if they are neglected by the owner;
(5) Conduct site inspection and enforcement measures
consistent with the Virginia Stormwater Management Act and attendant
regulations; and
(6) Track all known permanent stormwater management facilities
that discharge to the regulated small MS4 and submit the following information
in accordance with Section II E 3:
(a) Type of structural stormwater management facility
installed as defined in the Virginia Stormwater Management Handbook;
(b) Geographic location (HUC);
(c) Where applicable, the impaired surface water that the
stormwater management facility is discharging into; and
(d) Number of acres treated.
6. Pollution prevention/good housekeeping for municipal
operations. Develop and implement an operation and maintenance program
consistent with the MS4 Program Plan that includes a training component and has
the ultimate goal of preventing or reducing pollutant runoff from municipal
operations. Using training materials including those available from EPA, state,
tribe, or other organizations, the program shall include employee training to
prevent and reduce stormwater pollution from activities such as park and open
space maintenance, fleet and building maintenance, new construction and land
disturbances, and MS4 maintenance. The operator is encouraged to review the
Environmental Protection Agency's (EPA's) National Menu of Stormwater Best
Management Practices for ideas and strategies to incorporate into its program.
The menu can be accessed at
http://cfpub.epa.gov/npdes/stormwater/menuofbmps/index.cfm.
The operator shall identify, implement, evaluate and modify,
as necessary, BMPs to meet the following pollution prevention/good housekeeping
for municipal operations measurable goals:
a. Operation and maintenance programs including activities,
schedules, and inspection procedures shall include provisions and controls to
reduce pollutant discharges into the regulated small MS4 and receiving surface
waters;
b. Illicit discharges shall be eliminated from storage yards,
fleet or maintenance shops, outdoor storage areas, rest areas, waste transfer
stations, and other municipal facilities;
c. Waste materials shall be disposed of properly;
d. Materials that are soluble or erodible shall be protected
from exposure to precipitation;
e. Materials, including but not limited to fertilizers and
pesticides, that have the potential to pollute receiving surface waters shall
be applied according to manufacturer's recommendations; and
f. For state agencies with lands where nutrients are applied,
nutrient management plans shall be developed and implemented in accordance with
the requirements of § 10.1-104.4 of the Code of Virginia.
C. If an existing program requires the implementation of one
or more of the minimum control measures of Section II B, the operator, with the
approval of the board, may follow that program's requirements rather than the
requirements of Section II B. A program that may be considered includes, but is
not limited to, a local, state or tribal program that imposes, at a minimum,
the relevant requirements of Section II B.
The operator's MS4 Program Plan shall identify and fully
describe any program that will be used to satisfy one or more of the minimum
control measures of Section II B.
If the program the operator is using requires the approval of
a third party, the program must be fully approved by the third party, or the
operator must be working towards getting full approval. Documentation of the
program's approval status, or the progress towards achieving full approval,
must be included in the annual report required by Section II E 3.
D. The operator may rely on another entity to satisfy the VSMP
state permit obligations to implement a minimum control measure if: (i)
the other entity, in fact, implements the control measure; (ii) the particular
control measure, or component thereof, is at least as stringent as the
corresponding VSMP state permit requirement; and (iii) the other
entity agrees to implement the control measure on behalf of the operator. The
agreement between the parties must be documented in writing and retained by the
operator with the MS4 Program Plan for the duration of this state
permit.
In the annual reports that must be submitted under Section II
E 3, the operator must specify that another entity is being relied on to
satisfy some of the state permit obligations.
If the operator is relying on another governmental entity
regulated under 4VAC50-60-380 to satisfy all of the state permit
obligations, including the obligation to file periodic reports required by
Section II E 3, the operator must note that fact in the registration statement,
but is not required to file the periodic reports.
The operator remains responsible for compliance with the state
permit obligations if the other entity fails to implement the control measure
(or component thereof).
E. Evaluation and assessment.
1. Evaluation.
a. The operator must annually evaluate:
(1) Program compliance;
(2) The appropriateness of the identified BMPs (as part of
this evaluation, the operator shall evaluate the effectiveness of BMPs in
addressing discharges into waters that are identified as impaired in the 2006
305(b)/303(d) Water Quality Assessment Integrated Report); and
(3) Progress towards achieving the identified measurable
goals.
b. The operator must evaluate its MS4 Program once during the
permit cycle using the "Municipal Stormwater Program Evaluation
Guidance," Environmental Protection Agency EPA-833-R-07-003. Such
information shall be utilized when reapplying for permit coverage. Results of
this evaluation shall be kept on file and made available during audits and
inspections.
2. Recordkeeping. The operator must keep records required by
the NPDES state permit for at least three years. These records
must be submitted to the NPDES permitting authority only upon specific request.
The operator must make the records, including a description of the stormwater
management program, available to the public at reasonable times during regular
business hours.
3. Annual reports. The operator must submit an annual report
for the reporting period of July 1 through June 30 to the department by the
following October 1. The reports shall include:
a. Background Information.
(1) The name and state permit number of the program
submitting the annual report;
(2) The annual report permit year;
(3) Modifications to any operator's department's roles and
responsibilities;
(4) Number of new MS4 outfalls and associated acreage by HUC
added during the permit year; and
(5) Signed certification.
b. The status of compliance with state permit
conditions, an assessment of the appropriateness of the identified best
management practices and progress towards achieving the identified measurable
goals for each of the minimum control measures;
c. Results of information collected and analyzed, including
monitoring data, if any, during the reporting period;
d. A summary of the stormwater activities the operator plans
to undertake during the next reporting cycle;
e. A change in any identified best management practices or
measurable goals for any of the minimum control measures including steps to be
taken to address any deficiencies;
f. Notice that the operator is relying on another government
entity to satisfy some of the state permit obligations (if applicable);
g. The approval status of any programs pursuant to Section II
C (if appropriate), or the progress towards achieving full approval of these
programs;
h. Information required pursuant to Section I B 9;
i. The number of illicit discharges identified and the
narrative on how they were controlled or eliminated pursuant to Section II B 3
f;
j. Regulated land-disturbing activities data tracked under
Section II 4 c;
k. All known permanent stormwater management facility data
tracked under Section II B 5 b (6) submitted in a database format to be
prescribed by the department. Upon filing of this list, subsequent reports
shall only include those new stormwater management facilities that have been
brought online;
l. A list of any new or terminated signed agreements between
the operator and any applicable third parties where the operator has entered
into an agreement in order to implement minimum control measures or portions of
minimum control measures; and
m. Copies of any written comments received during a public
comment period regarding the MS4 Program Plan or any modifications.
F. Program Plan modifications. The board may require modifications
to the MS4 Program Plan as needed to address adverse impacts on receiving
surface water quality caused, or contributed to, by discharges from the
regulated small MS4. Modifications required by the board shall be made in
writing and set forth the time schedule to develop and implement the
modification. The operator may propose alternative program modifications and
time schedules to meet the objective of the required modification. The board
retains the authority to require any modifications it determines are necessary.
SECTION III
CONDITIONS APPLICABLE TO ALL VSMP STATE PERMITS
A. Monitoring.
1. Samples and measurements taken for the purpose of
monitoring shall be representative of the monitored activity.
2. Monitoring shall be conducted according to procedures
approved under 40 CFR Part 136 (2001) or alternative methods approved by the
U.S. Environmental Protection Agency, unless other procedures have been
specified in this state permit.
3. The operator shall periodically calibrate and perform
maintenance procedures on all monitoring and analytical instrumentation at
intervals that will insure accuracy of measurements.
B. Records.
1. Monitoring records/reports shall include:
a. The date, exact place, and time of sampling or
measurements;
b. The individual(s) who performed the sampling or
measurements;
c. The date(s) and time(s) analyses were performed;
d. The individual(s) who performed the analyses;
e. The analytical techniques or methods used; and
f. The results of such analyses.
2. The operator shall retain records of all monitoring
information, including all calibration and maintenance records and all original
strip chart recordings for continuous monitoring instrumentation, copies of all
reports required by this state permit, and records of all data used to
complete the registration statement for this state permit, for a period
of at least three years from the date of the sample, measurement, report or
request for coverage. This period of retention shall be extended automatically
during the course of any unresolved litigation regarding the regulated activity
or regarding control standards applicable to the operator, or as requested by
the board.
C. Reporting monitoring results.
1. The operator shall submit the results of the monitoring
required by this state permit with the annual report unless another
reporting schedule is specified elsewhere in this state permit.
2. Monitoring results shall be reported on a Discharge
Monitoring Report (DMR); on forms provided, approved or specified by the
department; or in any format provided the date, location, parameter, method,
and result of the monitoring activity are included.
3. If the operator monitors any pollutant specifically
addressed by this state permit more frequently than required by this state
permit using test procedures approved under 40 CFR Part 136 (2001) or using
other test procedures approved by the U.S. Environmental Protection Agency or
using procedures specified in this state permit, the results of this
monitoring shall be included in the calculation and reporting of the data
submitted in the DMR or reporting form specified by the department.
4. Calculations for all limitations that require averaging of
measurements shall utilize an arithmetic mean unless otherwise specified in
this state permit.
D. Duty to provide information. The operator shall furnish to
the department, within a reasonable time, any information that the board may
request to determine whether cause exists for modifying, revoking and
reissuing, or terminating this state permit or to determine compliance
with this state permit. The board may require the operator to furnish,
upon request, such plans, specifications, and other pertinent information as
may be necessary to determine the effect of the wastes from his discharge on
the quality of surface waters, or such other information as may be necessary to
accomplish the purposes of the CWA and Virginia Stormwater Management Act. The
operator shall also furnish to the department upon request, copies of records
required to be kept by this permit.
E. Compliance schedule reports. Reports of compliance or
noncompliance with, or any progress reports on, interim and final requirements
contained in any compliance schedule of this state permit shall be
submitted no later than 14 days following each schedule date.
F. Unauthorized stormwater discharges. Pursuant to § 10.1-603.2:2
A of the Code of Virginia, except in compliance with a state permit
issued by the board, it shall be unlawful to cause a stormwater discharge from
a MS4.
G. Reports of unauthorized discharges. Any operator of a
regulated small MS4 who discharges or causes or allows a discharge of sewage,
industrial waste, other wastes or any noxious or deleterious substance or a
hazardous substance or oil in an amount equal to or in excess of a reportable
quantity established under either 40 CFR Part 110 (2002), 40 CFR Part 117
(2002) or 40 CFR Part 302 (2002) that occurs during a 24-hour period into or
upon surface waters; or who discharges or causes or allows a discharge that may
reasonably be expected to enter surface waters, shall notify the Department of
Environmental Quality of the discharge immediately upon discovery of the
discharge, but in no case later than within 24 hours after said discovery. A
written report of the unauthorized discharge shall be submitted to the
Department of Environmental Quality and the Department of Conservation and
Recreation, within five days of discovery of the discharge. The written report
shall contain:
1. A description of the nature and location of the discharge;
2. The cause of the discharge;
3. The date on which the discharge occurred;
4. The length of time that the discharge continued;
5. The volume of the discharge;
6. If the discharge is continuing, how long it is expected to
continue;
7. If the discharge is continuing, what the expected total
volume of the discharge will be; and
8. Any steps planned or taken to reduce, eliminate and prevent
a recurrence of the present discharge or any future discharges not authorized
by this state permit.
Discharges reportable to the Department of Environmental
Quality and the Department of Conservation and Recreation under the immediate
reporting requirements of other regulations are exempted from this requirement.
H. Reports of unusual or extraordinary discharges. If any
unusual or extraordinary discharge including a " bypass " or "
upset," as defined herein, should occur from a facility and the discharge
enters or could be expected to enter surface waters, the operator shall
promptly notify, in no case later than within 24 hours, the Department of
Environmental Quality and the Department of Conservation and Recreation by
telephone after the discovery of the discharge. This notification shall provide
all available details of the incident, including any adverse affects on aquatic
life and the known number of fish killed. The operator shall reduce the report
to writing and shall submit it to the Department of Environmental Quality and
the Department of Conservation and Recreation within five days of discovery of
the discharge in accordance with Section III I 2. Unusual and extraordinary
discharges include but are not limited to any discharge resulting from:
1. Unusual spillage of materials resulting directly or
indirectly from processing operations;
2. Breakdown of processing or accessory equipment;
3. Failure or taking out of service some or all of the
facilities; and
4. Flooding or other acts of nature.
I. Reports of noncompliance. The operator shall report any
noncompliance which may adversely affect surface waters or may endanger public
health.
1. An oral report shall be provided within 24 hours to the
Department of Environmental Quality and the Department of Conservation and
Recreation from the time the operator becomes aware of the circumstances. The
following shall be included as information which shall be reported within 24
hours under this paragraph:
a. Any unanticipated bypass; and
b. Any upset which causes a discharge to surface waters.
2. A written report shall be submitted within five days and
shall contain:
a. A description of the noncompliance and its cause;
b. The period of noncompliance, including exact dates and
times, and if the noncompliance has not been corrected, the anticipated time it
is expected to continue; and
c. Steps taken or planned to reduce, eliminate, and prevent
reoccurrence of the noncompliance.
The board or its designee may waive the written report on a
case-by-case basis for reports of noncompliance under Section III I if the oral
report has been received within 24 hours and no adverse impact on surface
waters has been reported.
3. The operator shall report all instances of noncompliance
not reported under Sections III I 1 or 2, in writing, at the time the next
monitoring reports are submitted. The reports shall contain the information listed
in Section III I 2.
NOTE: The immediate (within 24 hours) reports required to be
provided to the Department of Environmental Quality in Sections III G, H and I
may be made to the appropriate Department of Environmental Quality's Regional
Office Pollution Response Program as found at
http://www.deq.virginia.gov/prep/homepage.html#. Reports may be made by
telephone or by fax. For reports outside normal working hours, leave a message
and this shall fulfill the immediate reporting requirement. For emergencies,
the Virginia Department of Emergency Services maintains a 24-hour telephone
service at 1-800-468-8892.
4. Where the operator becomes aware of a failure to submit any
relevant facts, or submittal of incorrect information in any report to the department
or the Department of Environmental Quality, it shall promptly submit such facts
or correct information.
J. Notice of planned changes.
1. The operator shall give notice to the department as soon as
possible of any planned physical alterations or additions to the permitted
facility. Notice is required only when:
a. The operator plans an alteration or addition to any
building, structure, facility, or installation from which there is or may be a
discharge of pollutants, the construction of which commenced:
(1) After promulgation of standards of performance under § 306
of the Clean Water Act that are applicable to such source; or
(2) After proposal of standards of performance in accordance
with § 306 of the Clean Water Act that are applicable to such source, but only
if the standards are promulgated in accordance with § 306 within 120 days of
their proposal;
b. The operator plans alteration or addition that would
significantly change the nature or increase the quantity of pollutants
discharged. This notification applies to pollutants that are not subject to
effluent limitations in this state permit; or
2. The operator shall give advance notice to the department of
any planned changes in the permitted facility or activity; which may result in
noncompliance with state permit requirements.
K. Signatory requirements.
1. Registration statement. All registration statements shall
be signed as follows:
a. For a corporation: by a responsible corporate officer. For
the purpose of this subsection, a responsible corporate officer means: (i) A
president, secretary, treasurer, or vice-president of the corporation in charge
of a principal business function, or any other person who performs similar
policy- or decision-making functions for the corporation, or (ii) the manager of
one or more manufacturing, production, or operating facilities, provided the
manager is authorized to make management decisions which govern the operation
of the regulated facility including having the explicit or implicit duty of
making major capital investment recommendations, and initiating and directing
other comprehensive measures to assure long term compliance with environmental
laws and regulations; the manager can ensure that the necessary systems are
established or actions taken to gather complete and accurate information for state
permit application requirements; and where authority to sign documents has been
assigned or delegated to the manager in accordance with corporate procedures;
b. For a partnership or sole proprietorship: by a general partner
or the proprietor, respectively; or
c. For a municipality, state, federal, or other public agency:
By either a principal executive officer or ranking elected official. For
purposes of this subsection, a principal executive officer of a public agency includes:
(1) The chief executive officer of the agency, or
(2) A senior executive officer having responsibility for the
overall operations of a principal geographic unit of the agency.
2. Reports, etc. All reports required by state permits,
and other information requested by the board shall be signed by a person
described in Section III K 1, or by a duly authorized representative of that
person. A person is a duly authorized representative only if:
a. The authorization is made in writing by a person described
in Section III K 1;
b. The authorization specifies either an individual or a
position having responsibility for the overall operation of the regulated
facility or activity such as the position of plant manager, operator of a well
or a well field, superintendent, position of equivalent responsibility, or an
individual or position having overall responsibility for environmental matters
for the operator. (A duly authorized representative may thus be either a named
individual or any individual occupying a named position.); and
c. The written authorization is submitted to the department.
3. Changes to authorization. If an authorization under Section
III K 2 is no longer accurate because a different individual or position has
responsibility for the overall operation of the facility, a new authorization
satisfying the requirements of Section III K 2 shall be submitted to the
department prior to or together with any reports, or information to be signed
by an authorized representative.
4. Certification. Any person signing a document under Sections
III K 1 or 2 shall make the following certification:
"I certify under penalty of law that this document and
all attachments were prepared under my direction or supervision in accordance
with a system designed to assure that qualified personnel properly gather and
evaluate the information submitted. Based on my inquiry of the person or
persons who manage the system, or those persons directly responsible for
gathering the information, the information submitted is, to the best of my
knowledge and belief, true, accurate, and complete. I am aware that there are
significant penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations."
L. Duty to comply. The operator shall comply with all
conditions of this state permit. Any state permit noncompliance
constitutes a violation of the Virginia Stormwater Management Act and the Clean
Water Act, except that noncompliance with certain provisions of this state
permit may constitute a violation of the Virginia Stormwater Management Act but
not the Clean Water Act. Permit State permit noncompliance is
grounds for enforcement action; for state permit termination, revocation
and reissuance, or modification; or denial of a state permit renewal
application.
The operator shall comply with effluent standards or
prohibitions established under § 307(a) of the Clean Water Act for toxic
pollutants within the time provided in the regulations that establish these
standards or prohibitions or standards for sewage sludge use or disposal, even
if this state permit has not yet been modified to incorporate the
requirement.
M. Duty to reapply. If the operator wishes to continue an
activity regulated by this state permit after the expiration date of
this state permit, the operator shall submit a new registration
statement at least 90 days before the expiration date of the existing state
permit, unless permission for a later date has been granted by the board. The
board shall not grant permission for registration statements to be submitted
later than the expiration date of the existing state permit.
N. Effect of a state permit. This state permit
does not convey any property rights in either real or personal property or any
exclusive privileges, nor does it authorize any injury to private property or
invasion of personal rights, or any infringement of federal, state or local law
or regulations.
O. State law. Nothing in this state permit shall be
construed to preclude the institution of any legal action under, or relieve the
operator from any responsibilities, liabilities, or penalties established
pursuant to any other state law or regulation or under authority preserved by §
510 of the Clean Water Act. Except as provided in state conditions on
"bypassing" (Section III U), and "upset" (Section III V)
nothing in this state permit shall be construed to relieve the operator
from civil and criminal penalties for noncompliance.
P. Oil and hazardous substance liability. Nothing in this state
permit shall be construed to preclude the institution of any legal action or
relieve the operator from any responsibilities, liabilities, or penalties to
which the operator is or may be subject under §§ 62.1-44.34:14 through
62.1-44.34:23 of the State Water Control Law or § 311 of the Clean Water
Act.
Q. Proper operation and maintenance. The operator shall at
all times properly operate and maintain all facilities and systems of treatment
and control (and related appurtenances), which are installed or used by the
operator to achieve compliance with the conditions of this state permit.
Proper operation and maintenance also includes effective plant performance,
adequate funding, adequate staffing, and adequate laboratory and process
controls, including appropriate quality assurance procedures. This provision
requires the operation of back-up or auxiliary facilities or similar systems,
which are installed by the operator only when the operation is necessary to
achieve compliance with the conditions of this state permit.
R. Disposal of solids or sludges. Solids, sludges or other
pollutants removed in the course of treatment or management of pollutants shall
be disposed of in a manner so as to prevent any pollutant from such materials
from entering surface waters.
S. Duty to mitigate. The operator shall take all reasonable
steps to minimize or prevent any discharge in violation of this state
permit that has a reasonable likelihood of adversely affecting human health or
the environment.
T. Need to halt or reduce activity not a defense. It shall
not be a defense for an operator in an enforcement action that it would have
been necessary to halt or reduce the permitted activity in order to maintain
compliance with the conditions of this state permit.
U. Bypass.
1. "Bypass," as defined in 4VAC50-60-10, means the
intentional diversion of waste streams from any portion of a treatment
facility. The operator may allow any bypass to occur that does not cause
effluent limitations to be exceeded, but only if it also is for essential
maintenance to assure efficient operation. These bypasses are not subject to
the provisions of Sections III U 2 and U 3.
2. Notice.
a. Anticipated bypass. If the operator knows in advance of the
need for a bypass, prior notice shall be submitted, if possible at least 10
days before the date of the bypass.
b. Unanticipated bypass. The operator shall submit notice of
an unanticipated bypass as required in Section III I.
3. Prohibition of bypass.
a. Bypass is prohibited, and the board or its designee may
take enforcement action against an operator for bypass, unless:
(1) Bypass was unavoidable to prevent loss of life, personal
injury, or severe property damage;
(2) There were no feasible alternatives to the bypass, such as
the use of auxiliary treatment facilities, retention of untreated wastes, or
maintenance during normal periods of equipment downtime. This condition is not
satisfied if adequate back-up equipment should have been installed in the
exercise of reasonable engineering judgment to prevent a bypass that occurred
during normal periods of equipment downtime or preventive maintenance; and
(3) The operator submitted notices as required under Section
III U 2.
b. The board or its designee may approve an anticipated
bypass, after considering its adverse effects, if the board or its designee
determines that it will meet the three conditions listed above in Section III U
3 a.
V. Upset.
1. An upset, as defined in 4VAC50-60-10, constitutes an
affirmative defense to an action brought for noncompliance with technology
based state permit effluent limitations if the requirements of Section
III V 2 are met. A determination made during administrative review of claims
that noncompliance was caused by upset, and before an action for noncompliance,
is not a final administrative action subject to judicial review.
2. An upset does not include noncompliance to the extent
caused by operational error, improperly designed treatment facilities,
inadequate treatment facilities, lack of preventive maintenance, or careless or
improper operation.
3. An operator who wishes to establish the affirmative defense
of upset shall demonstrate, through properly signed, contemporaneous operating
logs, or other relevant evidence that:
a. An upset occurred and that the operator can identify the
cause(s) of the upset;
b. The permitted facility was at the time being properly
operated;
c. The operator submitted notice of the upset as required in
Section III I; and
d. The operator complied with any remedial measures required
under Section III S.
4. In any enforcement proceeding the operator seeking to
establish the occurrence of an upset has the burden of proof.
W. Inspection and entry. The operator shall allow the
department as the board's designee, or an authorized representative (including
an authorized contractor acting as a representative of the administrator), upon
presentation of credentials and other documents as may be required by law, to:
1. Enter upon the operator's premises where a regulated
facility or activity is located or conducted, or where records must be kept
under the conditions of this state permit;
2. Have access to and copy, at reasonable times, any records
that must be kept under the conditions of this state permit;
3. Inspect at reasonable times any facilities, equipment
(including monitoring and control equipment), practices, or operations
regulated or required under this state permit; and
4. Sample or monitor at reasonable times, for the purposes of
assuring state permit compliance or as otherwise authorized by the Clean
Water Act and the Virginia Stormwater Management Act, any substances or
parameters at any location.
For purposes of this subsection, the time for inspection shall
be deemed reasonable during regular business hours, and whenever the facility
is discharging. Nothing contained herein shall make an inspection unreasonable
during an emergency.
X. Permit State permit actions. Permits State
permits may be modified, revoked and reissued, or terminated for cause. The
filing of a request by the operator for a state permit modification,
revocation and reissuance, or termination, or a notification of planned changes
or anticipated noncompliance does not stay any state permit condition.
Y. Transfer of state permits.
1. Permits State permits are not transferable to
any person except after notice to the department. Except as provided in Section
III Y 2, a state permit may be transferred by the operator to a new
owner or operator only if the state permit has been modified or revoked
and reissued, or a minor modification made, to identify the new operator and
incorporate such other requirements as may be necessary under the Virginia
Stormwater Management Act and the Clean Water Act.
2. As an alternative to transfers under Section III Y 1, this state
permit may be automatically transferred to a new operator if:
a. The current operator notifies the department at least two
days in advance of the proposed transfer of the title to the facility or
property;
b. The notice includes a written agreement between the
existing and new operators containing a specific date for transfer of state
permit responsibility, coverage, and liability between them; and
c. The board does not notify the existing operator and the
proposed new operator of its intent to modify or revoke and reissue the state
permit. If this notice is not received, the transfer is effective on the date
specified in the agreement mentioned in Section III Y 2 b.
Z. Severability. The provisions of this state permit
are severable, and if any provision of this state permit or the
application of any provision of this state permit to any circumstance,
is held invalid, the application of such provision to other circumstances, and
the remainder of this state permit, shall not be affected thereby.
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 (4VAC50-60)
Application Form 1-General
Information, Consolidated Permits Program, EPA Form 3510-1, DCR 199-149 (August
1990).
Department of Conservation and
Recreation Permit Fee Form, DCR 199-145 (10/09).
Department
of Conservation and Recreation Construction Activity Operator Permit Fee Form,
DCR 199-213 (09/12).
VSMP General Permit for Discharges
of Stormwater from Construction Activities (VAR10) - Registration Statement,
DCR 199-146 (03/09).
VSMP General Permit Notice of
Termination - Construction Activity Stormwater Discharges (VAR10), DCR 199-147
(03/09).
VSMP General Permit for Discharges
of Stormwater from Construction Activities (VAR10) - Transfer Agreement,
DCR199-191 (03/09).
VSMP General Permit Registration
Statement for Stormwater Discharges From Small Municipal Separate Storm Sewer
Systems (VAR04), DCR 199-148 (07/08).
VA.R. Doc. No. R13-3319; Filed October 3, 2012, 8:54 a.m.
Final Regulation
REGISTRAR'S NOTICE:
Chapters 785 and 819 of the 2012 Acts of Assembly abolished the Chesapeake Bay
Local Assistance Board and transferred its regulations to the Virginia Soil and
Water Conservation Board effective July 1, 2012. The following action transfers
the Chesapeake Bay Local Assistance Board regulation numbered 9VAC10-20 to the
Virginia Soil and Water Conservation Board and renumbers the regulation as
4VAC50-90.
The Virginia Soil and
Water Conservation Board is claiming an exemption from Article 2 of the
Administrative Process Act in accordance with (i) § 2.2-4006 A 3,
which excludes regulations that consist only of changes in style or form or
corrections of technical errors and (ii) § 2.2-4006 A 4 a of the Code of
Virginia, which excludes regulations that are necessary to conform to changes
in Virginia statutory law where no agency discretion is involved. The Virginia
Soil and Water Conservation Board will receive, consider, and respond to
petitions by any interested person at any time with respect to reconsideration
or revision.
Title of Regulation: 4VAC50-90. Chesapeake Bay
Preservation Area Designation and Management Regulations (adding 4VAC50-90-10 through 4VAC50-90-270).
Statutory Authority: §§ 10.1-2103 and 10.1-2107 of
the Code of Virginia.
Effective Date: November 21, 2012.
Agency Contact: David C. Dowling, Policy and Planning
Director, Department of Conservation and Recreation, 203 Governor Street, Suite
302, Richmond, VA 23219, telephone (804) 786-2291, FAX (804) 786-6141, or email
david.dowling@dcr.virginia.gov.
Summary:
The amendments change references to the Chesapeake Bay
Local Assistance Board to the Virginia Soil and Water Conservation Board
(VSWCB) and renumber the sections to place the regulation under the VSWCB in
the Virginia Administrative Code.
Additional amendments modify the general performance
criteria to:
1. Remove the requirement that best management practice
maintenance be ensured by the local government through a maintenance agreement
with the owner or developer or some other mechanism that achieves an equivalent
objective. This requirement is duplicative of requirements already embodied
under the Stormwater Management Act (§ 10.1-603.2 et seq. of the Code of Virginia)
and attendant regulations.
2. Stipulate that enforcement for noncompliance with the
erosion and sediment control requirements referenced in subdivision 5 of
4VAC50-90-130 shall be conducted under the provisions of the Erosion and
Sediment Control Act (§ 10.1-560 et seq. of the Code of Virginia)
and attendant regulations.
3. Remove requirements associated with stormwater
management criteria. These requirements are duplicative of requirements already
embodied under the Stormwater Management Act (§ 10.1-603.2 et seq. of
the Code of Virginia) and attendant regulations. Also, the amendments
clarify that any stormwater management facilities constructed in a resource
protection area shall be constructed in accordance with the Stormwater
Management Act (§ 10.1-603.2
et seq. of the Code of Virginia) and its attendant regulations and clarify that
the facility must be consistent with a comprehensive stormwater management plan
developed and approved in accordance with 4VAC50-60-92 of the Virginia
Stormwater Management Program (VSMP) Permit regulations.
4. Stipulate the details of a compliance review process to
be conducted under these regulations, including the use of corrective action
agreements.
CHAPTER 20 90
CHESAPEAKE BAY PRESERVATION AREA DESIGNATION AND MANAGEMENT REGULATIONS
Part I
Introduction
9VAC10-20-10. 4VAC5-90-10. Application.
The board is charged with the development of regulations
which establish criteria that will provide for the protection of water quality,
and that also will accommodate economic development. All counties, cities and
towns in Tidewater Virginia shall comply with this chapter. Other local
governments not in Tidewater Virginia may use the criteria and conform their
ordinances as provided in this chapter to protect the quality of state waters
in accordance with § 10.1-2110 of the Code of Virginia.
9VAC10-20-20. 4VAC50-90-20. Authority for
chapter.
This chapter is issued under the authority of § 10.1-2107
of Chapter 21 of Title 10.1 of the Code of Virginia (the Chesapeake Bay
Preservation Act, hereinafter "the Act").
9VAC10-20-30. 4VAC50-90-30. Purpose of chapter.
A. The purpose of this chapter is to protect and improve the
water quality of the Chesapeake Bay, its tributaries, and other state waters by
minimizing the effects of human activity upon these waters and implementing the
Act, which provides for the definition and protection of certain lands called
Chesapeake Bay Preservation Areas, which if improperly used or developed may
result in substantial damage to the water quality of the Chesapeake Bay and its
tributaries.
B. This chapter establishes the criteria that counties,
cities and towns (hereinafter "local governments") shall use to
determine the extent of the Chesapeake Bay Preservation Areas within their
jurisdictions. This chapter establishes criteria for use by local governments
in granting, denying or modifying requests to rezone, subdivide, or to use and
develop land in Chesapeake Bay Preservation Areas. This chapter identifies the
requirements for changes which local governments shall incorporate into their
comprehensive plans, zoning ordinances and subdivision ordinances and employ to
ensure that the use and development of land in Chesapeake Bay Preservation
Areas shall be accomplished in a manner that protects the quality of state
waters pursuant to §§ 10.1-2109 and 10.1-2111 of the Act.
9VAC10-20-40. 4VAC50-90-40. Definitions.
The following words and terms used in this chapter have the
following meanings, unless the context clearly indicates otherwise. In
addition, some terms not defined herein are defined in § 10.1-2101 of the
Act.
"Act" means the Chesapeake Bay Preservation Act
found in Chapter 21 (§ 10.1-2100 et seq.) of Title 10.1 of the Code of
Virginia.
"Best management practice" means a practice, or
combination of practices, that is determined by a state or designated area-wide
planning agency to be the most effective, practicable means of preventing or
reducing the amount of pollution generated by nonpoint sources to a level
compatible with water quality goals.
"Board" means the Chesapeake Bay Local
Assistance Board Virginia Soil and Water Conservation Board.
"Buffer area" means an area of natural or
established vegetation managed to protect other components of a Resource
Protection Area and state waters from significant degradation due to land
disturbances.
"Chesapeake Bay Preservation Area" means any land
designated by a local government pursuant to Part III (9VAC10-20-70 4VAC50-90-70
et seq.) of this chapter and § 10.1-2107 of the Act. A Chesapeake Bay
Preservation Area shall consist of a Resource Protection Area and a Resource
Management Area.
"Department" means the Chesapeake Bay Local
Assistance Department Department of Conservation and Recreation.
"Development" means the construction or substantial
alteration of residential, commercial, industrial, institutional, recreation,
transportation or utility facilities or structures.
"Director" means the executive director of the
Chesapeake Bay Local Assistance Department Director of the Department of
Conservation and Recreation.
"Floodplain" means all lands that would be inundated
by flood water as a result of a storm event of a 100-year return interval.
"Highly erodible soils" means soils (excluding
vegetation) with an erodibility index (EI) from sheet and rill erosion equal to
or greater than eight. The erodibility index for any soil is defined as the
product of the formula RKLS/T, where K is the soil susceptibility to water
erosion in the surface layer; R is the rainfall and runoff; LS is the combined
effects of slope length and steepness; and T is the soil loss tolerance.
"Highly permeable soils" means soils with a given
potential to transmit water through the soil profile. Highly permeable soils
are identified as any soil having a permeability equal to or greater than six
inches of water movement per hour in any part of the soil profile to a depth of
72 inches (permeability groups "rapid" and "very rapid") as
found in the "National Soil Survey Handbook" of November 1996 in the
"Field Office Technical Guide" of the U.S. Department of Agriculture
Natural Resources Conservation Service.
"Impervious cover" means a surface composed of any
material that significantly impedes or prevents natural infiltration of water
into the soil. Impervious surfaces include, but are not limited to, roofs,
buildings, streets, parking areas, and any concrete, asphalt or compacted
gravel surface.
"Infill" means utilization of vacant land in
previously developed areas.
"Intensely Developed Areas" means those areas
designated by the local government pursuant to 9VAC10-20-100 4VAC50-90-100.
"Local governments" means counties, cities and
towns. This chapter applies to local governments in Tidewater Virginia, as
defined in § 10.1-2101 of the Act, but the provisions of this chapter may
be used by other local governments.
"Local program" means the measures by which a local
government complies with the Act and this chapter.
"Local program adoption date" means the date a
local government meets the requirements of subdivisions 1 and 2 of 9VAC10-20-60
4VAC50-90-60.
"Nontidal wetlands" means those wetlands other than
tidal wetlands that are inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted for life
in saturated soil conditions, as defined by the U.S. Environmental Protection
Agency pursuant to § 404 of the federal Clean Water Act, in 33 CFR §
328.3b.
"Plan of development" means any process for site
plan review in local zoning and land development regulations designed to ensure
compliance with § 10.1-2109 of the Act and this chapter, prior to issuance
of a building permit.
"Public road" means a publicly owned road designed
and constructed in accordance with water quality protection criteria at least
as stringent as requirements applicable to the Virginia Department of
Transportation, including regulations promulgated pursuant to (i) the Erosion
and Sediment Control Law (§ 10.1-560 et seq. of the Code of Virginia) and
(ii) the Virginia Stormwater Management Act (§ 10.1-603.1 et seq. of the
Code of Virginia). This definition includes those roads where the Virginia
Department of Transportation exercises direct supervision over the design or
construction activities, or both, and cases where secondary roads are
constructed or maintained, or both, by a local government in accordance with
the standards of that local government.
"Redevelopment" means the process of developing
land that is or has been previously developed.
"Resource Management Area" means that component of
the Chesapeake Bay Preservation Area that is not classified as the Resource
Protection Area.
"Resource Protection Area" means that component of
the Chesapeake Bay Preservation Area comprised of lands adjacent to water
bodies with perennial flow that have an intrinsic water quality value due to
the ecological and biological processes they perform or are sensitive to
impacts which may result in significant degradation to the quality of state
waters.
"Silvicultural activities" means forest management
activities, including but not limited to the harvesting of timber, the
construction of roads and trails for forest management purposes, and the
preparation of property for reforestation that are conducted in accordance with
the silvicultural best management practices developed and enforced by the State
Forester pursuant to § 10.1-1105 of the Code of Virginia and are located on
property defined as real estate devoted to forest use under § 58.1-3230 of the Code
of Virginia.
"Substantial alteration" means expansion or
modification of a building or development that would result in a disturbance of
land exceeding an area of 2,500 square feet in the Resource Management Area
only.
"Tidal shore" or "shore" means land
contiguous to a tidal body of water between the mean low water level and the
mean high water level.
"Tidal wetlands" means vegetated and nonvegetated
wetlands as defined in § 28.2-1300 of the Code of Virginia.
"Tidewater Virginia" means those jurisdictions
named in § 10.1-2101 of the Act.
"Use" means an activity on the land other than
development including, but not limited to, agriculture, horticulture and
silviculture.
"Water-dependent facility" means a development of
land that cannot exist outside of the Resource Protection Area and must be
located on the shoreline by reason of the intrinsic nature of its operation.
These facilities include, but are not limited to (i) ports; (ii) the intake and
outfall structures of power plants, water treatment plants, sewage treatment
plants and storm sewers; (iii) marinas and other boat docking structures; (iv)
beaches and other public water-oriented recreation areas; and (v) fisheries or
other marine resources facilities.
Part II
Local Government Programs
9VAC10-20-50. 4VAC50-90-50. Local program
development.
Local governments shall develop measures (hereinafter called
"local programs") necessary to comply with the Act and this chapter.
Counties and towns are encouraged to cooperate in the development of their
local programs. In conjunction with other state water quality programs, local
programs shall encourage and promote: (i) protection of existing high quality
state waters and restoration of all other state waters to a condition or
quality that will permit all reasonable public uses and will support the
propagation and growth of all aquatic life, including game fish, which might
reasonably be expected to inhabit them; (ii) safeguarding the clean waters of
the Commonwealth from pollution; (iii) prevention of any increase in pollution;
(iv) reduction of existing pollution; and (v) promotion of water resource
conservation in order to provide for the health, safety and welfare of the
present and future citizens of the Commonwealth.
9VAC10-20-60. 4VAC50-90-60. Elements of program.
Local programs shall contain the elements listed below.
1. A map delineating Chesapeake Bay Preservation Areas.
2. Performance criteria applying in Chesapeake Bay
Preservation Areas that employ the requirements in Part IV (9VAC10-20-110
4VAC50-90-120 et seq.) of this chapter.
3. A comprehensive plan or revision that incorporates the
protection of Chesapeake Bay Preservation Areas and of the quality of state
waters, in accordance with criteria set forth in Part V (9VAC10-20-170 4VAC50-90-160
et seq.) of this chapter.
4. A zoning ordinance or revision that (i) incorporates
measures to protect the quality of state waters in Chesapeake Bay Preservation
Areas, as set forth in Part VI (9VAC10-20-181 4VAC50-90-180 et
seq.) of this chapter, and (ii) requires compliance with all criteria set forth
in Part IV (9VAC10-20-110 4VAC50-90-120 et seq.) of this chapter.
5. A subdivision ordinance or revision that (i) incorporates
measures to protect the quality of state waters in Chesapeake Bay Preservation
Areas, as set forth in Part VI (9VAC10-20-181 4VAC50-90-180 et
seq.) of this chapter, and (ii) assures that all subdivisions in Chesapeake Bay
Preservation Areas comply with the criteria set forth in Part IV (9VAC10-20-110
4VAC50-90-120 et seq.) of this chapter.
6. An erosion and sediment control ordinance or revision
that requires compliance with the criteria in Part IV (9VAC10-20-110 et seq.)
of this chapter.
7. 6. A plan of development process prior to the
issuance of a building permit to assure that use and development of land in
Chesapeake Bay Preservation Areas is accomplished in a manner that protects the
quality of state waters.
Part III
Chesapeake Bay Preservation Area Designation Criteria
9VAC10-20-70. 4VAC50-90-70. Purpose.
The criteria in this part provide direction for local
government designation of the ecological and geographic extent of Chesapeake
Bay Preservation Areas. Chesapeake Bay Preservation Areas are divided into
Resource Protection Areas and Resource Management Areas that are subject to the
criteria in Part IV (9VAC10-20-110 4VAC50-90-120 et seq.) and the
requirements in Part V (9VAC10-20-170 4VAC50-90-160 et seq.) of
this chapter. In addition, the criteria in this part provide guidance for local
government identification of areas suitable for redevelopment that are subject
to the redevelopment criteria in Part IV (9VAC10-20-110 4VAC50-90-120
et seq.) of this chapter.
9VAC10-20-80. 4VAC50-90-80. Resource Protection
Areas.
A. At a minimum, Resource Protection Areas shall consist of
lands adjacent to water bodies with perennial flow that have an intrinsic water
quality value due to the ecological and biological processes they perform or
are sensitive to impacts which may cause significant degradation to the quality
of state waters. In their natural condition, these lands provide for the
removal, reduction or assimilation of sediments, nutrients and potentially
harmful or toxic substances in runoff entering the bay and its tributaries, and
minimize the adverse effects of human activities on state waters and aquatic
resources.
B. The Resource Protection Area shall include:
1. Tidal wetlands;
2. Nontidal wetlands connected by surface flow and contiguous
to tidal wetlands or water bodies with perennial flow;
3. Tidal shores;
4. Such other lands considered by the local government to meet
the provisions of subsection A of this section and to be necessary to protect
the quality of state waters; and
5. A buffer area not less than 100 feet in width located
adjacent to and landward of the components listed in subdivisions 1 through 4
above, and along both sides of any water body with perennial flow. The full
buffer area shall be designated as the landward component of the Resource
Protection Area notwithstanding the presence of permitted uses, encroachments,
and permitted vegetation clearing in compliance with Part IV (9VAC10-20-110
4VAC50-90-120 et seq.) of this chapter.
C. Designation of the components listed in subdivisions 1-4
of subsection B of this section shall not be subject to modification unless
based on reliable, site-specific information as provided for in 9VAC10-20-105
4VAC50-90-110 and subdivision 6 of 9VAC10-20-130 4VAC50-90-140.
D. For the purpose of generally determining whether water
bodies have perennial flow, local governments may use one of the following
methods as long as the methodology is adopted into the local program and
applied consistently: (i) designation of water bodies depicted as perennial on
the most recent U.S. Geological Survey 7½ minute topographic quadrangle map
(scale 1:24,000) or (ii) use of a scientifically valid system of in-field
indicators of perennial flow. However, site-specific determinations shall be
made or confirmed by the local government pursuant to 9VAC10-20-105 4VAC50-90-110.
9VAC10-20-90. 4VAC50-90-90. Resource Management
Areas.
A. Resource Management Areas shall include land types that,
if improperly used or developed, have a potential for causing significant water
quality degradation or for diminishing the functional value of the Resource
Protection Area.
B. A Resource Management Area shall be provided contiguous to
the entire inland boundary of the Resource Protection Area. The following land
categories shall be considered for inclusion in the Resource Management Area
and, where mapping resources indicate the presence of these land types
contiguous to the Resource Protection Area, should be included in designations
of Resource Management Areas:
1. Floodplains;
2. Highly erodible soils, including steep slopes;
3. Highly permeable soils;
4. Nontidal wetlands not included in the Resource Protection
Area;
5. Such other lands considered by the local government to meet
the provisions of subsection A of this section and to be necessary to protect
the quality of state waters.
C. Resource Management Areas shall encompass a land area
large enough to provide significant water quality protection through the
employment of the criteria in Part IV (9VAC10-20-110 4VAC50-90-120
et seq.) and the requirements in Parts II (9VAC10-20-50 4VAC50-90-50
et seq.) and V (9VAC10-20-170 4VAC50-90-160 et seq.) of this
chapter.
1. Local governments with few or no Resource Management Area
land types evident from available mapping resources should evaluate the
relationships of the following land categories to water quality protection in
making their Resource Management Area designations. The board will consider the
degree to which these land categories are included when evaluating the
consistency of a locality's Resource Management Area designation for achievement
of significant water quality protection:
a. Known Resource Management Area land types;
b. Developable land within the jurisdiction;
c. Areas targeted for redevelopment; and
d. Areas served by piped or channelized stormwater drainage
systems which provide no treatment of stormwater discharges.
2. Localities with no mapping resources or with mapping
resources for only portions of their jurisdiction should evaluate the
relationships of the following land categories to water quality protection in
making their Resource Management Area designations. The board will consider the
degree to which these land categories are included when evaluating the
consistency of a local government's Resource Management Area designation for
achievement of significant water quality protection. Furthermore, such
designations may be considered an interim designation until such time as
appropriate mapping resources become available if such resources are considered
by the board to be useful in determining the Resource Management Area
boundaries, in which case the board will reevaluate the interim Resource
Management Area designations at a later date:
a. Known Resource Management Area land types;
b. Developable land within the jurisdiction;
c. Areas targeted for redevelopment; and
d. Areas served by piped or channelized stormwater drainage
systems which provide no treatment of stormwater discharges.
3. Local governments should consider extending the Resource
Management Area boundary to the remainder of the lot, parcel, or development
project upon which Resource Management Area-type features are present.
4. Local governments shall demonstrate how significant water
quality protection will be achieved within designated Resource Management
Areas, as well as by each local program as a whole, and to explain the
rationale for excluding eligible Resource Management Area components that are
not designated.
5. It is not the intent of the board, nor is it the intent of
the Act or this chapter, to require that local governments designate all lands
within their jurisdiction as Chesapeake Bay Preservation Areas. It is also not
the intent of the board to discourage or preclude jurisdiction-wide
designations of Resource Management Areas when the local government considers
such designations appropriate, recognizing that greater water quality
protection will result from more expansive implementation of the performance
criteria. The extent of the Resource Management Area designation should always
be based on the prevalence and relation of Resource Management Area land types
and other appropriate land areas to water quality protection.
9VAC10-20-100. 4VAC50-90-100. Intensely Developed
Areas.
A. At their option, local governments may designate Intensely
Developed Areas as an overlay of Chesapeake Bay Preservation Areas within their
jurisdictions. For the purposes of this chapter, Intensely Developed Areas
shall serve as redevelopment areas in which development is concentrated as of
the local program adoption date. Areas so designated shall comply with the
performance criteria for redevelopment in Part IV (9VAC10-20-110 4VAC50-90-120
et seq.) of this chapter.
B. Local governments exercising this option shall examine the
pattern of residential, commercial, industrial and institutional development within
Chesapeake Bay Preservation Areas. Areas of existing development and infill
sites where little of the natural environment remains may be designated as
Intensely Developed Areas provided at least one of the following conditions
existed at the time the local program was originally adopted:
1. Development has severely altered the natural state of the
area such that it has more than 50% impervious surface;
2. Public sewer and water systems, or a constructed stormwater
drainage system, or both, have been constructed and served the area by the
original local program adoption date. This condition does not include areas
planned for public sewer and water or constructed stormwater drainage systems;
3. Housing density is equal to or greater than four dwelling units
per acre.
9VAC10-20-105. 4VAC50-90-110. Site-specific
refinement of Chesapeake Bay Preservation Area boundaries.
Local governments shall, as part of their plan-of-development
review process pursuant to subdivision 1 e of 9VAC10-20-231 4VAC50-90-240
or during their review of a water quality impact assessment pursuant to
subdivision 6 of 9VAC10-20-130 4VAC50-90-140, ensure or confirm
that (i) a reliable, site-specific evaluation is conducted to determine whether
water bodies on or adjacent to the development site have perennial flow and
(ii) Resource Protection Area boundaries are adjusted, as necessary, on the
site, based on this evaluation of the site. Local governments may accomplish
this by either conducting the site evaluations themselves or requiring the
person applying to use or develop the site to conduct the evaluation and submit
the required information for review.
Part IV
Land Use and Development Performance Criteria
9VAC10-20-110. 4VAC50-90-120. Purpose.
A. The purpose of this part is to achieve the goals of the
Act and 9VAC10-20-50 4VAC50-90-50 by establishing criteria to
implement the following objectives: prevent a net increase in nonpoint source
pollution from new development and development on previously developed land
where the runoff was treated by a water quality protection best management
practice, achieve a 10% reduction in nonpoint source pollution from development
on previously developed land where the runoff was not treated by one or more
water quality best management practices, and achieve a 40% reduction in
nonpoint source pollution from agricultural and silvicultural uses.
B. In order to achieve these goals and objectives, the
criteria in this part establish performance standards to minimize erosion and
sedimentation potential, reduce land application of nutrients and toxics,
maximize rainwater infiltration, and ensure the long-term performance of the
measures employed.
C. The criteria in this part become mandatory upon the local
program adoption date. They are supplemental to the various planning and zoning
concepts employed by local governments in granting, denying, or modifying
requests to rezone, subdivide, or to use and develop land in Chesapeake Bay
Preservation Areas.
D. Local governments shall incorporate the criteria in this
part into their comprehensive plans, zoning ordinances and subdivision
ordinances, and may incorporate the criteria in this part into such other
ordinances and regulations as may be appropriate, in accordance with §§ 10.1-2108
and 10.1-2111 of the Act and Parts V (9VAC10-20-170 4VAC50-90-160
et seq.), VI (9VAC10-20-181 4VAC50-90-180 et seq.), and VII (9VAC10-20-211
4VAC50-90-200 et seq.) of this chapter. The criteria may be employed in
conjunction with other planning and zoning concepts to protect the quality of
state waters.
9VAC10-20-120. 4VAC50-90-130. General performance
criteria.
Through their applicable land use ordinances, regulations and
enforcement mechanisms, local governments shall require that any use,
development or redevelopment of land in Chesapeake Bay Preservation Areas meets
the following performance criteria:
1. No more land shall be disturbed than is necessary to
provide for the proposed use or development.
2. Indigenous vegetation shall be preserved to the maximum
extent practicable, consistent with the use or development proposed.
3. Where the best management practices utilized require
regular or periodic maintenance in order to continue their functions, such
maintenance shall be ensured by the local government through a maintenance
agreement with the owner or developer or some other mechanism that achieves an
equivalent objective.
4. 3. All development exceeding 2,500 square
feet of land disturbance shall be accomplished through a plan of development
review process consistent with § 15.2-2286 A 8 of the Code of Virginia and
subdivision 1 e of 9VAC10-20-231 4VAC50-90-240.
5. 4. Land development shall minimize impervious
cover consistent with the proposed use or development.
6. 5. Any land disturbing activity that exceeds
an area of 2,500 square feet (including construction of all single family
houses, septic tanks and drainfields, but otherwise as defined in § 10.1-560 of
the Code of Virginia) shall comply with the requirements of the local erosion
and sediment control ordinance. Enforcement for noncompliance with the
erosion and sediment control requirements referenced in this criterion shall be
conducted under the provisions of the Erosion and Sediment Control Act (§
10.1-560 et seq. of the Code of Virginia) and attendant regulations.
7. 6. On-site sewage treatment systems not
requiring a Virginia Pollutant Discharge Elimination System (VPDES) permit
shall:
a. Have pump-out accomplished for all such systems at least
once every five years.
(1) If deemed appropriate by the local health department and
subject to conditions the local health department may set, local governments
may offer to the owners of such systems, as an alternative to the mandatory
pump-out, the option of having a plastic filter installed and maintained in the
outflow pipe from the septic tank to filter solid material from the effluent
while sustaining adequate flow to the drainfield to permit normal use of the
septic system. Such a filter should satisfy standards established in the Sewage
Handling and Disposal Regulations (12VAC5-610) administered by the Virginia
Department of Health.
(2) Furthermore, in lieu of requiring proof of septic tank
pump-out every five years, local governments may allow owners of on-site sewage
treatment systems to submit documentation every five years, certified by a
sewage handler permitted by the Virginia Department of Health, that the septic
system has been inspected, is functioning properly, and the tank does not need
to have the effluent pumped out of it.
b. For new construction, provide a reserve sewage disposal
site with a capacity at least equal to that of the primary sewage disposal
site. This reserve sewage disposal site requirement shall not apply to any lot
or parcel recorded prior to October 1, 1989, if the lot or parcel is not
sufficient in capacity to accommodate a reserve sewage disposal site, as
determined by the local health department. Building shall be prohibited on the
area of all sewage disposal sites until the structure is served by public sewer
or an on-site sewage treatment system which operates under a permit issued by
the State Water Control Board. All sewage disposal site records shall be
administered to provide adequate notice and enforcement. As an alternative to
the 100% reserve sewage disposal site, local governments may offer the owners
of such systems the option of installing an alternating drainfield system
meeting the following conditions:
(1) Each of the two alternating drainfields in the system
shall have, at a minimum, an area not less than 50% of the area that would
otherwise be required if a single primary drainfield were constructed.
(2) An area equaling 50% of the area that would otherwise be
required for the primary drainfield site must be reserved for subsurface
absorption systems that utilize a flow diversion device, in order to provide
for future replacement or repair to meet the requirements for a sewage disposal
system. Expansion of the primary system will require an expansion of this
reserve area.
(3) The two alternating drainfields shall be connected by a
diversion valve, approved by the local health department, located in the pipe
between the septic (aerobic) tank and the distribution boxes. The diversion
valve shall be used to alternate the direction of effluent flow to one
drainfield or the other at a time. However, diversion valves shall not be used
for the following types of treatment systems:
(a) Sand mounds;
(b) Low-pressure distribution systems;
(c) Repair situations when installation of a valve is not feasible;
and
(d) Any other approved system for which the use of a valve
would adversely affect the design of the system, as determined by the local
health department.
(4) The diversion valve shall be a three-port, two-way valve
of approved materials (i.e., resistant to sewage and leakproof and designed so
that the effluent from the tank can be directed to flow into either one of the
two distribution boxes).
(5) There shall be a conduit from the top of the valve to the
ground surface with an appropriate cover to be level with or above the ground
surface.
(6) The valve shall not be located in driveways, recreational
courts, parking lots, or beneath sheds or other structures.
(7) In lieu of the aforementioned diversion valve, any device
that can be designed and constructed to conveniently direct the flow of
effluent from the tank into either one of the two distribution boxes may be
approved if plans are submitted to the local health department and found to be
satisfactory.
(8) The local government shall require that the owner(s)
alternate the drainfields every 12 months to permit the yearly resting of half
of the absorption system.
(9) The local government shall ensure that the owner(s) are
notified annually of the requirement to switch the valve to the opposite
drainfield.
8. Stormwater management criteria consistent with the water
quality protection provisions of the Virginia Stormwater Management Regulations
(4VAC50-60) shall be satisfied.
a. The following stormwater management options shall be
considered to comply with this subsection of this chapter:
(1) Incorporation on the site of best management practices
that meet the water quality protection requirements set forth in this
subsection. For the purposes of this subsection, the "site" may
include multiple projects or properties that are adjacent to one another or lie
within the same drainage area where a single best management practice will be
utilized by those projects to satisfy water quality protection requirements;
(2) Compliance with a locally adopted regional stormwater
management program, which may include a Virginia Stormwater Management Program
(VSMP) permit issued by the Virginia Soil and Water Conservation Board to a
local government for its municipally owned separate storm sewer system discharges,
that is reviewed and found by the board to achieve water quality protection
equivalent to that required by this subsection; and
(3) Compliance with a site-specific VSMP permit issued by
the Virginia Soil and Water Conservation Board, provided that the local
government specifically determines that the permit requires measures that
collectively achieve water quality protection equivalent to that required by
this subsection.
b. Any maintenance, alteration, use or improvement to an
existing structure that does not degrade the quality of surface water
discharge, as determined by the local government, may be exempted from the
requirements of this subsection.
c. Stormwater management criteria for redevelopment shall
apply to any redevelopment, whether or not it is located within an Intensely
Developed Area designated by a local government.
9. 7. Land upon which agricultural activities
are being conducted, including but not limited to crop production, pasture, and
dairy and feedlot operations, or lands otherwise defined as agricultural land
by the local government, shall have a soil and water quality conservation
assessment conducted that evaluates the effectiveness of existing practices
pertaining to soil erosion and sediment control, nutrient management, and
management of pesticides, and, where necessary, results in a plan that outlines
additional practices needed to ensure that water quality protection is being
accomplished consistent with the Act and this chapter.
a. Recommendations for additional conservation practices need
address only those conservation issues applicable to the tract or field being
assessed. Any soil and water quality conservation practices that are
recommended as a result of such an assessment and are subsequently implemented
with financial assistance from federal or state cost-share programs must be
designed, consistent with cost-share practice standards effective in January
1999 in the "Field Office Technical Guide" of the U.S. Department of
Agriculture Natural Resource Conservation Service or the June 2000 edition of
the "Virginia Agricultural BMP Manual" of the Virginia Department of
Conservation and Recreation, respectively. Unless otherwise specified in this
section, general standards pertaining to the various agricultural conservation
practices being assessed shall be as follows:
(1) For erosion and sediment control recommendations, the goal
shall be, where feasible, to prevent erosion from exceeding the soil loss
tolerance level, referred to as "T," as defined in the "National
Soil Survey Handbook" of November 1996 in the "Field Office Technical
Guide" of the U.S. Department of Agriculture Natural Resource Conservation
Service. However, in no case shall erosion exceed the soil loss consistent with
an Alternative Conservation System, referred to as an "ACS", as
defined in the "Field Office Technical Guide" of the U.S. Department
of Agriculture Natural Resource Conservation Service.
(2) For nutrient management, whenever nutrient management
plans are developed, the operator or landowner must provide soil test
information, consistent with the Virginia Nutrient Management Training and
Certification Regulations (4VAC5-15).
(3) For pest chemical control, referrals shall be made to the
local cooperative extension agent or an Integrated Pest Management Specialist
of the Virginia Cooperative Extension Service. Recommendations shall include
copies of applicable information from the "Virginia Pest Management
Guide" or other Extension materials related to pest control.
b. A higher priority shall be placed on conducting assessments
of agricultural fields and tracts adjacent to Resource Protection Areas.
However, if the landowner or operator of such a tract also has Resource
Management Area fields or tracts in his operation, the assessment for that
landowner or operator may be conducted for all fields or tracts in the
operation. When such an expanded assessment is completed, priority must return
to Resource Protection Area fields and tracts.
c. The findings and recommendations of such assessments and
any resulting soil and water quality conservation plans will be submitted to
the local Soil and Water Conservation District Board, which will be the
plan-approving authority.
10. 8. Silvicultural activities in Chesapeake
Bay Preservation Areas are exempt from this chapter provided that silvicultural
operations adhere to water quality protection procedures prescribed by the
Virginia Department of Forestry in the January 1997 edition of "Forestry
Best Management Practices for Water Quality in Virginia Technical Guide."
The Virginia Department of Forestry will oversee and document installation of
best management practices and will monitor in-stream impacts of forestry
operations in Chesapeake Bay Preservation Areas.
11. 9. Local governments shall require evidence
of all wetlands permits required by law prior to authorizing grading or other
on-site activities to begin.
9VAC10-20-130. 4VAC50-90-140. Development
criteria for Resource Protection Areas.
In addition to the general performance criteria set forth in 9VAC10-20-120
4VAC50-90-130, the criteria in this section are applicable in Resource
Protection Areas.
1. Land development may be allowed in the Resource Protection
Area, subject to approval by the local government, only if it (i) is water
dependent; (ii) constitutes redevelopment; (iii) constitutes development or
redevelopment within a designated Intensely Developed Area; (iv) is a new use
established pursuant to subdivision 4 a of this section; (v) is a road or
driveway crossing satisfying the conditions set forth in subdivision 1 d of
this section; or (vi) is a flood control or stormwater management facility
satisfying the conditions set forth in subdivision 1 e of this section.
a. A water quality impact assessment in accordance with
subdivision 6 of this section shall be required for any proposed land
disturbance.
b. A new or expanded water-dependent facility may be allowed
provided that the following criteria are met:
(1) It does not conflict with the comprehensive plan;
(2) It complies with the performance criteria set forth in 9VAC10-20-120
4VAC50-90-130;
(3) Any nonwater-dependent component is located outside of
Resource Protection Areas; and
(4) Access to the water-dependent facility will be provided
with the minimum disturbance necessary. Where practicable, a single point of
access will be provided.
c. Redevelopment outside locally designated Intensely
Developed Areas shall be permitted in the Resource Protection Area only if
there is no increase in the amount of imperious cover and no further
encroachment within the Resource Protection Area, and it shall conform to
applicable erosion and sediment control and stormwater management criteria set
forth in subdivisions 6 and 8, respectively, of 9VAC10-20-120 the
Erosion and Sediment Control Law (§ 10.1-560 et seq. of the Code of Virginia)
and the Stormwater Management Act (§ 10.1-603.2 et seq. of the Code of
Virginia) and their attendant regulations, as well as all applicable
stormwater management requirements of other state and federal agencies.
d. Roads and driveways not exempt under subdivision B 1 of 9VAC10-20-150
4VAC50-90-150 and which, therefore, must comply with the provisions of
this chapter, may be constructed in or across Resource Protection Areas if each
of the following conditions is met:
(1) The local government makes a finding that there are no
reasonable alternatives to aligning the road or driveway in or across the
Resource Protection Area;
(2) The alignment and design of the road or driveway are
optimized, consistent with other applicable requirements, to minimize (i)
encroachment in the Resource Protection Area and (ii) adverse effects on water
quality;
(3) The design and construction of the road or driveway
satisfy all applicable criteria of this chapter, including submission of a
water quality impact assessment; and
(4) The local government reviews the plan for the road or
driveway proposed in or across the Resource Protection Area in coordination
with local government site plan, subdivision and plan of development approvals.
e. Flood control and stormwater management facilities that
drain or treat water from multiple development projects or from a significant
portion of a watershed may be allowed in Resource Protection Areas provided
such facilities are allowed and constructed in accordance with the Stormwater
Management Act (§ 10.1-603.2 et seq. of the Code of Virginia) and its attendant
regulations, and provided that (i) the local government has conclusively
established that location of the facility within the Resource Protection Area
is the optimum location; (ii) the size of the facility is the minimum necessary
to provide necessary flood control or stormwater treatment, or both; (iii) the
facility must be consistent with a stormwater management program that has
been approved by the board as a Phase I modification to the local government's
program comprehensive stormwater management plan developed and approved
in accordance with 4VAC50-60-92 of the Virginia Stormwater Management Program
(VSMP) Permit regulations; (iv) all applicable permits for construction in
state or federal waters must be obtained from the appropriate state and federal
agencies, such as the U.S. Army Corps of Engineers, the Virginia Department
of Conservation and Recreation, the Virginia Department of Environmental
Quality, and the Virginia Marine Resources Commission; (v) approval must be
received from the local government prior to construction; and (vi) routine
maintenance is allowed to be performed on such facilities to assure that they
continue to function as designed. It is not the intent of this subdivision to
allow a best management practice that collects and treats runoff from only an
individual lot or some portion of the lot to be located within a Resource
Protection Area.
2. Exemptions in Resource Protection Areas. The following land
disturbances in Resource Protection Areas may be exempt from the criteria of
this part provided that they comply with subdivisions a and b of this
subdivision 2: (i) water wells; (ii) passive recreation facilities such as
boardwalks, trails and pathways; and (iii) historic preservation and
archaeological activities:
a. Local governments shall establish administrative procedures
to review such exemptions.
b. Any land disturbance exceeding an area of 2,500 square feet
shall comply with the erosion and sediment control criteria in subdivision 6
5 of 9VAC10-20-120 4VAC50-90-130.
3. Buffer area requirements. The 100-foot wide buffer area
shall be the landward component of the Resource Protection Area as set forth in
subdivision B 5 of 9VAC10-20-80 4VAC50-90-80. Notwithstanding
permitted uses, encroachments, and vegetation clearing, as set forth in this
section, the 100-foot wide buffer area is not reduced in width. To minimize the
adverse effects of human activities on the other components of the Resource
Protection Area, state waters, and aquatic life, a 100-foot wide buffer area of
vegetation that is effective in retarding runoff, preventing erosion, and
filtering nonpoint source pollution from shall be retained if present and
established where it does not exist.
a. The 100-foot wide buffer area shall be deemed to achieve a
75% reduction of sediments and a 40% reduction of nutrients.
b. Where land uses such as agriculture or silviculture within
the area of the buffer cease and the lands are proposed to be converted to
other uses, the full 100-foot wide buffer shall be reestablished. In
reestablishing the buffer, management measures shall be undertaken to provide
woody vegetation that assures the buffer functions set forth in this chapter.
4. Permitted encroachments into the buffer area.
a. When the application of the buffer area would result in the
loss of a buildable area on a lot or parcel recorded prior to October 1, 1989,
encroachments into the buffer area may be allowed through an administrative
process in accordance with the following criteria:
(1) Encroachments into the buffer area shall be the minimum
necessary to achieve a reasonable buildable area for a principal structure and
necessary utilities.
(2) Where practicable, a vegetated area that will maximize
water quality protection, mitigate the effects of the buffer encroachment, and
is equal to the area of encroachment into the buffer area shall be established
elsewhere on the lot or parcel.
(3) The encroachment may not extend into the seaward 50 feet
of the buffer area.
b. When the application of the buffer area would result in the
loss of a buildable area on a lot or parcel recorded between October 1, 1989
and March 1, 2002, encroachments into the buffer area may be allowed through an
administrative process in accordance with the following criteria:
(1) The lot or parcel was created as a result of a legal
process conducted in conformity with the local government's subdivision
regulations;
(2) Conditions or mitigation measures imposed through a
previously approved exception shall be met;
(3) If the use of a best management practice (BMP) was
previously required, the BMP shall be evaluated to determine if it continues to
function effectively and, if necessary, the BMP shall be reestablished or
repaired and maintained as required; and
(4) The criteria in subdivision 4 a of this section shall be
met.
5. Permitted modifications of the buffer area.
a. In order to maintain the functional value of the buffer
area, existing vegetation may be removed, subject to approval by the local
government, only to provide for reasonable sight lines, access paths, general
woodlot management, and best management practices, including those that prevent
upland erosion and concentrated flows of stormwater, as follows:
(1) Trees may be pruned or removed as necessary to provide for
sight lines and vistas, provided that where removed, they shall be replaced
with other vegetation that is equally effective in retarding runoff, preventing
erosion, and filtering nonpoint source pollution from runoff.
(2) Any path shall be constructed and surfaced so as to
effectively control erosion.
(3) Dead, diseased, or dying trees or shrubbery and noxious
weeds (such as Johnson grass, kudzu, and multiflora rose) may be removed and
thinning of trees may be allowed pursuant to sound horticultural practice
incorporated into locally-adopted standards.
(4) For shoreline erosion control projects, trees and woody
vegetation may be removed, necessary control techniques employed, and
appropriate vegetation established to protect or stabilize the shoreline in
accordance with the best available technical advice and applicable permit
conditions or requirements.
b. On agricultural lands the agricultural buffer area shall be
managed to prevent concentrated flows of surface water from breaching the
buffer area and appropriate measures may be taken to prevent noxious weeds
(such as Johnson grass, kudzu, and multiflora rose) from invading the buffer
area. Agricultural activities may encroach into the buffer area as follows:
(1) Agricultural activities may encroach into the landward 50
feet of the 100-foot wide buffer area when at least one agricultural best
management practice which, in the opinion of the local soil and water
conservation district board, addresses the more predominant water quality issue
on the adjacent land—erosion control or nutrient management—is being
implemented on the adjacent land, provided that the combination of the
undisturbed buffer area and the best management practice achieves water quality
protection, pollutant removal, and water resource conservation at least the
equivalent of the 100-foot wide buffer area. If nutrient management is
identified as the predominant water quality issue, a nutrient management plan,
including soil tests, must be developed consistent with the Virginia Nutrient
Management Training and Certification Regulations (4VAC5-15) administered by
the Virginia Department of Conservation and Recreation.
(2) Agricultural activities may encroach within the landward
75 feet of the 100-foot wide buffer area when agricultural best management
practices which address erosion control, nutrient management, and pest chemical
control, are being implemented on the adjacent land. The erosion control
practices must prevent erosion from exceeding the soil loss tolerance level,
referred to as "T," as defined in the "National Soil Survey
Handbook" of November 1996 in the "Field Office Technical Guide"
of the U.S. Department of Agriculture Natural Resource Conservation Service. A
nutrient management plan, including soil tests, must be developed, consistent
with the Virginia Nutrient Management Training and Certification Regulations
(4VAC5-15) administered by the Virginia Department of Conservation and
Recreation. In conjunction with the remaining buffer area, this collection of
best management practices shall be presumed to achieve water quality protection
at least the equivalent of that provided by the 100-foot wide buffer area.
(3) The buffer area is not required to be designated adjacent
to agricultural drainage ditches if at least one best management practice
which, in the opinion of the local soil and water conservation district board,
addresses the more predominant water quality issue on the adjacent land—either
erosion control or nutrient management—is being implemented on the adjacent
land.
(4) If specific problems are identified pertaining to
agricultural activities that are causing pollution of the nearby water body
with perennial flow or violate performance standards pertaining to the
vegetated buffer area, the local government, in cooperation with soil and water
conservation district, shall recommend a compliance schedule to the landowner
and require the problems to be corrected consistent with that schedule. This
schedule shall expedite environmental protection while taking into account the
seasons and other temporal considerations so that the probability for
successfully implementing the corrective measures is greatest.
(5) In cases where the landowner or his agent or operator has
refused assistance from the local soil and water conservation district in
complying with or documenting compliance with the agricultural requirements of
this chapter, the district shall report the noncompliance to the local
government. The local government shall require the landowner to correct the
problems within a specified period of time not to exceed 18 months from their
initial notification of the deficiencies to the landowner. The local government,
in cooperation with the district, shall recommend a compliance schedule to the
landowner. This schedule shall expedite environmental protection while taking
into account the seasons and other temporal considerations so that the
probability for successfully implementing the corrective measures is greatest.
6. Water quality impact assessment. A water quality impact
assessment shall be required for any proposed development within the Resource
Protection Area consistent with this part and for any other development in
Chesapeake Bay Preservation Areas that may warrant such assessment because of
the unique characteristics of the site or intensity of the proposed use or
development.
a. The purpose of the water quality impact assessment is to
identify the impacts of proposed development on water quality and lands in the
Resource Protection Areas consistent with the goals and objectives of the Act,
this chapter, and local programs, and to determine specific measures for
mitigation of those impacts. The specific content and procedures for the water
quality impact assessment shall be established by each local government. Local
governments should notify the board of all development requiring such an
assessment. Upon request, the board will provide review and comment regarding
any water quality impact assessment in accordance with the advisory state
review requirements of § 10.1-2112 of the Act.
b. The water quality impact assessment shall be of sufficient
specificity to demonstrate compliance with the criteria of the local program.
7. Buffer area requirements for Intensely Developed Areas. In
Intensely Developed Areas the local government may exercise discretion
regarding whether to require establishment of vegetation in the 100-foot wide
buffer area. However, while the immediate establishment of vegetation in the
buffer area may be impractical, local governments shall give consideration to
implementing measures that would establish vegetation in the buffer in these
areas over time in order to maximize water quality protection, pollutant
removal, and water resource conservation.
9VAC10-20-150. 4VAC50-90-150. Nonconformities,
exemptions, and exceptions.
A. Nonconforming uses and noncomplying structures.
1. Local governments may permit the continued use, but not
necessarily the expansion, of any structure in existence on the date of local
program adoption. Local governments may establish an administrative review
procedure to waive or modify the criteria of this part for structures on legal
nonconforming lots or parcels provided that:
a. There will be no net increase in nonpoint source pollutant
load; and
b. Any development or land disturbance exceeding an area of
2,500 square feet complies with all erosion and sediment control requirements
of this part.
2. This chapter shall not be construed to prevent the
reconstruction of pre-existing structures within Chesapeake Bay Preservation
Areas from occurring as a result of casualty loss unless otherwise restricted
by local government ordinances.
B. Public utilities, railroads, public roads, and facilities
exemptions.
1. Construction, installation, operation, and maintenance of
electric, natural gas, fiber-optic, and telephone transmission lines,
railroads, and public roads and their appurtenant structures in accordance with
(i) regulations promulgated pursuant to the Erosion and Sediment Control Law (§
10.1-560 et seq. of the Code of Virginia) and the Stormwater Management Act (§ 10.1-603.1
10.1-603.2 et seq. of the Code of Virginia), (ii) an erosion and
sediment control plan and a stormwater management plan approved by the Virginia
Department of Conservation and Recreation, or (iii) local water quality
protection criteria at least as stringent as the above state requirements will
be deemed to constitute compliance with this chapter. The exemption of public
roads is further conditioned on the following:
a. Optimization of the road alignment and design, consistent
with other applicable requirements, to prevent or otherwise minimize (i)
encroachment in the Resource Protection Area and (ii) adverse effects on water
quality; and
b. Local governments may choose to exempt (i) all public roads
as defined in 9VAC10-20-40 4VAC50-90-40, or (ii) only those
public roads constructed by the Virginia Department of Transportation.
2. Construction, installation and maintenance of water, sewer,
natural gas, and underground telecommunications and cable television lines
owned, permitted, or both, by a local government or regional service authority
shall be exempt from the criteria in this part provided that:
a. To the degree possible, the location of such utilities and
facilities should be outside Resource Protection Areas;
b. No more land shall be disturbed than is necessary to
provide for the proposed utility installation;
c. All such construction, installation and maintenance of such
utilities and facilities shall be in compliance with all applicable state and
federal permits and designed and conducted in a manner that protects water
quality; and
d. Any land disturbance exceeding an area of 2,500 square feet
complies with all erosion and sediment control requirements of this part.
C. Exceptions.
1. Exceptions to the requirements of 9VAC10-20-120 4VAC50-90-130
and 9VAC10-20-130 4VAC50-90-140 may be granted, provided that a
finding is made that:
a. The requested exception to the criteria is the minimum
necessary to afford relief;
b. Granting the exception will not confer upon the applicant
any special privileges that are denied by this part to other property owners
who are subject to its provisions and who are similarly situated;
c. The exception is in harmony with the purpose and intent of
this part and is not of substantial detriment to water quality;
d. The exception request is not based upon conditions or
circumstances that are self-created or self-imposed;
e. Reasonable and appropriate conditions are imposed, as
warranted, that will prevent the allowed activity from causing a degradation of
water quality; and
f. Other findings, as appropriate and required by the local
government, are met.
2. Each local government shall design and implement an
appropriate process or processes for the administration of exceptions. The
process to be used for exceptions to 9VAC10-20-130 4VAC50-90-140
shall include, but not be limited to, the following provisions:
a. An exception may be considered and acted upon only by the
local legislative body; the local planning commission; or a special committee,
board or commission established or designated by the local government to
implement the provisions of the Act and this chapter.
b. Local governments implementing this chapter through the
local zoning code may provide for specific provisions that allow for
consideration of exceptions that comply with subdivision 2 of this subsection.
c. The provision of subdivision 2 b of this subsection
notwithstanding, no exception shall be authorized except after notice and a
hearing, as required by § 15.2-2204 of the Code of Virginia, except that only
one hearing shall be required. However, when giving any required notice to the
owners, their agents or the occupants of abutting property and property
immediately across the street or road from the property affected, the notice
may be given by first-class mail rather than by registered or certified mail.
3. Exceptions to other provisions of this part may be granted,
provided that:
a. Exceptions to the criteria shall be the minimum necessary
to afford relief; and
b. Reasonable and appropriate conditions upon any exception
granted shall be imposed, as necessary, so that the purpose and intent of the
Act is preserved.
4. Notwithstanding the provisions of subdivisions 2 a through
2 c of this subsection, additions and modifications to existing legal principal
structures may be processed through an administrative review process, as
allowed by subsection A of this section, subject to the findings required by
subdivision 1 of this subsection but without a requirement for a public
hearing. This provision shall not apply to accessory structures.
Part V
Comprehensive Plan Criteria
9VAC10-20-170. 4VAC50-90-160. Purpose.
The purpose of this part is to assist local governments in
the development of a comprehensive plan or plan component that is consistent
with the Act, and to establish guidelines for determining the consistency of
the local comprehensive plan or plan component with the Act.
9VAC10-20-171. 4VAC50-90-170. Comprehensive
plans.
Local governments shall review and revise their comprehensive
plans, as necessary, for compliance with § 10.1-2109 of the Act and this
chapter. As a minimum, the comprehensive plan or plan component shall consist
of the following basic elements: (i) a summary of data collection; (ii)
analysis and policy discussion(s); (iii) land use plan map(s); and (iv)
implementing measures, including specific objectives and a time frame for
accomplishment.
1. Local governments shall establish and maintain, as
appropriate, an information base from which policy choices are made about
future land use and development that will protect the quality of state waters.
This element of the plan should be based upon the following, as applicable to
the locality:
a. The location and extent of Chesapeake Bay Preservation
Areas;
b. Physical constraints to development, including soil
limitations;
c. The character and location of commercial and recreational
fisheries and other aquatic resources;
d. Shoreline and streambank erosion problems;
e. Existing and proposed land uses;
f. Catalog of existing and potential water pollution sources;
g. Public and private waterfront access areas, including the
general locations of or information about docks, piers, marinas, boat ramps,
and similar water access facilities;
h. A map or map series accurately representing the above
information.
2. As part of the comprehensive plan, local governments shall
clearly indicate local policy on land use issues relative to water quality
protection based on an analysis of the data referred to in subdivision 1 of
this section. Local governments shall ensure consistency among the policies
developed.
a. Local governments shall discuss each component of
Chesapeake Bay Preservation Areas in relation to the types of land uses
considered appropriate and consistent with the goals and objectives of the Act,
this chapter, and their local programs.
b. As a minimum, local governments shall prepare policy
statements for inclusion in the plan on the following issues, as applicable to
the locality:
(1) Physical constraints to development, including a
discussion of the relationship between soil limitations and existing and
proposed land use, with an explicit discussion of soil suitability for septic
tank use;
(2) Protection of potable water supply, including groundwater
resources and threats to the water supply or groundwater resources from
existing and potential pollution sources;
(3) Relationship of land use to commercial and recreational
fisheries and other aquatic resources;
(4) Siting of docks and piers;
(5) Public and private access to waterfront areas and effect
on water quality;
(6) Mitigation of the impacts of land use and its associated
pollution upon water quality;
(7) Shoreline and streambank erosion problems; and
(8) Potential water quality improvement through reduction of
existing pollution sources and the redevelopment of Intensely Developed Areas
and other areas targeted for redevelopment.
c. For each of the policy issues listed above, the plan shall
contain a discussion of the scope and importance of the issue, the policy
adopted by the local government for that issue, and a description of how the
local policy will be implemented.
d. Within the policy discussion, local governments shall
address the relationship between the plan, existing and proposed land use,
public services, and capital improvement plans and budgets to ensure a
consistent local policy.
Part VI
Land Development Ordinances
9VAC10-20-181. 4VAC50-90-180. Purpose.
The purpose of this part is to assist local governments in
the preparation of land use and development ordinances and regulations adopted
pursuant to § 10.1-2109 and Articles 1 (§ 2.2-2200 et seq.), 2 (§ 2.2-2210
et seq.), 4 (§ 2.2-2233 et seq.), 5 (§ 1.1-2239), 6 (§ 2.2-2240 et seq.), and 7
(§ 2.2-2280 et seq.) of Chapter 22 of Title 15.2 of the Code of Virginia that
are consistent with the Act and this chapter, and to establish guidelines for
determining the consistency of such ordinances and regulations with the Act and
this chapter. Such ordinances and regulations include, but are not limited to,
subdivision ordinances and zoning ordinances.
9VAC10-20-191. 4VAC50-90-190. Land development
ordinances regulations and procedures.
A. Local governments shall review and revise their land
development regulations, as necessary, to comply with § 10.1-2109 of the
Act. To achieve this:
1. Local zoning ordinances shall ensure that the uses
permitted by the local zoning regulations are consistent with the Act and this
chapter;
2. Local land development ordinances and regulations shall
incorporate either explicitly or by direct reference the performance criteria
in Part IV (9VAC10-20-110 4VAC50-90-120 et seq.) of this chapter.
Specific development standards that implement the performance criteria from
subdivisions 1, 2 and 5 4 of 9VAC10-20-120 4VAC50-90-130
(minimizing land disturbance and impervious cover and preserving existing
vegetation, respectively) shall be included;
3. Local land development ordinances and regulations shall
protect the integrity of Chesapeake Bay Preservation Areas by incorporating
standards to ensure (i) the protection of water quality; (ii) the preservation
of Resource Protection Area land categories, as set forth in 9VAC10-20-80
4VAC50-90-80, including the 100-foot wide buffer area; and (iii) the
compatibility of development with Resource Management Area land categories, as
set forth in 9VAC10-20-90 4VAC50-90-90;
4. Local land development ordinances and regulations shall
provide for (i) depiction of Resource Protection Area and Resource Management
Area boundaries on plats and site plans, including a notation on plats of the
requirement to retain an undisturbed and vegetated 100-foot wide buffer area,
as specified in subdivision 3 of 9VAC10-20-130 4VAC50-90-140 (ii)
a plat notation of the requirement for pump-out and 100% reserve drainfield
sites for onsite sewage treatment systems, when applicable; and (iii) a plat
notation of the permissibility of only water dependent facilities or
redevelopment in Resource Protection Areas, including the 100-foot wide buffer
area; and
5. Local governments shall require, during the plan of
development review process, the delineation of the buildable areas that are
allowed on each lot. The delineation of buildable areas shall be based on the
performance criteria specified in Part IV (9VAC10-20-110 4VAC50-90-120
et seq.) of this chapter, local front and side yard setback requirements, and
any other relevant easements or limitations regarding lot coverage.
B. Local governments shall undertake the following as
necessary, to comply with § 10.1-2109 of the Act:
1. Local governments shall evaluate the relationship between
the submission requirements, performance standards, and permitted uses in local
land development ordinances and regulations to identify any obstacles to
achieving the water quality goals of the Act and this chapter as set forth in § 10.1-2107
B of the Act, 9VAC10-20-50 4VAC50-90-50 and 9VAC10-20-110 4VAC50-90-120.
Local governments shall revise these ordinances and regulations, as necessary,
to eliminate any obstacles identified in the submission requirements or
development standards.
2. Local governments shall review and revise their land
development ordinances and regulations adopted pursuant to § 10.1-2109 and
Article 1 (§ 2.2-2200 et seq.), 2 (§ 2.2-2210 et seq.), 4 (§ 2.2-2233 et
seq.), 5 (§ 2.2-2239), 6 (§ 2.2-2240 et seq.), and 7 (§ 2.2-2280 et seq.)
of Chapter 22 of Title 15.2 of the Code of Virginia to assure that their
subdivision ordinances, zoning ordinances, and all other components of their
local Chesapeake Bay Preservation Act programs are consistent in promoting and
achieving the protection of state waters. In addition, local governments shall
identify and resolve any conflicts among the components of the local programs
and with other local ordinances, regulations and administrative policies, to
assure that the intent of the Act and this chapter is fulfilled.
3. Local governments shall review and revise their land
development ordinances and regulations to ensure consistency with the water
quality protection goals, objectives, policies, and implementation strategies
identified in the local comprehensive plan.
Part VII
Local Assistance and Local Program Consistency Review Process
9VAC10-20-211. 4VAC50-90-200. Purpose.
The purpose of this part is to assist local governments in
the timely preparation of local programs to implement the Act and to establish
an administrative procedure for determining local program consistency with the
Act.
9VAC10-20-215. 4VAC50-90-210. Local assistance
manual.
A. The department will prepare a manual to provide guidance
to assist local governments in the preparation of local programs in order to
implement the Act and this chapter. The manual will be updated periodically to
reflect the most current planning and zoning techniques and effective best
management practices. The manual will be made available to the public.
B. The manual will recommend a schedule for the completion of
local program elements and their submission to the board for its information to
ensure timely achievement of the requirements of the Act and timely receipt of
assistance. The board will consider compliance with the schedule in allocating
financial and technical assistance.
C. The manual is for the purpose of guidance only.
9VAC10-20-221. 4VAC50-90-220. Board to establish
liaison.
The board will establish liaison with each local government
to assist the local government in developing and implementing its local
program, in obtaining technical and financial assistance, and in complying with
the Act and this chapter.
9VAC10-20-225. 4VAC50-90-230. Planning district
comments.
Local governments are encouraged to enlist the assistance and
comments of regional planning district agencies early in the development of
their local programs.
9VAC10-20-231. 4VAC50-90-240. Preparation and
submission of management program.
Local governments must adopt the full management program,
which will consist of Phases I-III as defined in this section and including any
revisions to comprehensive plans, zoning ordinances, subdivision ordinances,
and other local authorities necessary to implement the Act. Prior to adoption,
local governments may submit any proposed revisions to the board for comments.
Criteria are provided below for local government use in preparing local
programs and the board's use in determining local program consistency.
1. Phase I shall consist of the designation of Chesapeake Bay
Preservation Areas and adoption of the performance criteria. This phase of
designating Chesapeake Bay Preservation Areas as an element of the local
program should include:
a. Utilizing existing data and mapping resources to identify
and describe tidal wetlands, nontidal wetlands, tidal shores, water bodies with
perennial flow, flood plains, highly erodible soils including steep slopes,
highly permeable areas, and other sensitive environmental resources as
necessary to comply with Part III (9VAC10-20-70 4VAC50-90-70 et
seq.) of this chapter;
b. Determining, based upon the identification and description,
the extent of Chesapeake Bay Preservation Areas within the local jurisdiction;
c. Preparing an appropriate map or maps delineating Chesapeake
Bay Preservation Areas;
d. Preparing amendments to local ordinances that incorporate
the performance criteria of Part IV (9VAC10-20-110 4VAC50-90-120
et seq.) of this chapter or the model ordinance prepared by the board;
e. Establishing, if necessary, and incorporating a plan of
development review process. Local governments shall make provisions as
necessary to ensure that any development of land within Chesapeake Bay
Preservation Areas shall be accomplished through a plan of development
procedure pursuant to § 15.2-2286 A 8 of the Code of Virginia to ensure
compliance with the Act and this chapter. Any exemptions from those review
requirements shall be established and administered in a manner that ensures
compliance with this chapter.
f. Conducting a public hearing. Prior to adopting Chesapeake
Bay Preservation Areas and the performance criteria, each local government
shall hold a public hearing to solicit public comment regarding these local
program components.
g. Providing copies of the adopted program documents and
subsequent changes thereto to the board for consistency review, as set forth in
subdivision 5 of this section.
2. Phase II shall consist of local governments reviewing and
revising their comprehensive plans, as necessary, for compliance with §
10.1-2109 of the Act, in accordance with the provisions set forth in Part V (9VAC10-20-170
4VAC50-90-160 et seq.) of this chapter.
3. Phase III shall consist of local governments reviewing and
revising their land development regulations and processes, which include but
are not limited to zoning ordinances, subdivision ordinances, erosion and
sediment control ordinances, and the plan of development review process, as
necessary, to comply with § 10.1-2109 of the Act and to be consistent with
the provisions set forth in Part VI (9VAC10-20-181 4VAC50-90-180
et seq.) of this chapter.
4. Consistent with §§ 10.1-2108, 10.1-2109, and 10.1-2113 of
the Act local governments may use civil penalties to enforce compliance with
the requirements of local programs.
5. Review by the board.
a. The board will review proposed elements of a program phase
within 60 days according to review policies adopted by the board. If the
proposed program phase is consistent with the Act, the board will schedule a
conference with the local government to determine what additional technical and
financial assistance may be needed and available to accomplish the proposed
program phase. If the proposed program phase or any part thereof is not
consistent, the board will notify the local government in writing, stating the
reasons for a determination of inconsistency and specifying needed changes.
Copies of the adopted program documents and subsequent changes thereto shall be
provided to the board.
b. The board will review locally adopted elements of a program
phase according to review policies adopted by the board and as set forth in 9VAC10-20-250
4VAC50-90-260.
Part VIII
Implementation and Enforcement
9VAC10-20-240. 4VAC50-90-250. Applicability.
The Act requires that the board ensure that local governments
comply with the Act and regulations and that their comprehensive plans, zoning
ordinances and subdivision ordinances are in accordance with the Act. To
satisfy these requirements, the board has adopted this chapter and will monitor
each local government's compliance with the Act and this chapter.
9VAC10-20-250. 4VAC50-90-260. Administrative
proceedings.
Section 10.1-2103.8 Subdivision 8 of § 10.1-2103
and § 10.1-2104.1 of the Act provides provide that the
board shall ensure that local government comprehensive plans, subdivision
ordinances and zoning ordinances are in accordance with the provisions of the
Act, and that it shall determine such compliance in accordance with the
provisions of the Administrative Process Act. When the board determines to
decide such compliance, it will give the subject local government at least 15
days notice of its right to appear before the board at a time and place
specified for the presentation of factual data, argument and proof as provided
by § 2.2-4019 of the Code of Virginia. The board will provide a copy of its
decision to the local government. If any deficiencies are found, the board will
establish a schedule for the local government to come into compliance.
1. In order to carry out its mandated responsibilities under § 10.1-2103.10
subdivision 10 of § 10.1-2103 and § 10.1-2104.1 of the Act, the
board will:
a. Require that each Tidewater local government submit an
annual implementation report outlining the implementation of the local program.
The board will develop reporting criteria which outline the information to be
included in the reports and the time frame for their submission. The board will
use the information in these reports to assess local patterns of compliance
with the Act and this chapter and to evaluate the need for an administrative
proceeding to more closely review any individual local government's compliance.
All proceedings of this nature will be developed and conducted in accordance
with this section.
b. Develop a compliance review process. Reviews will occur on
a five-year cycle, and, when feasible, will be conducted as part of the local
government's comprehensive plan review and update process. The department
may also conduct a comprehensive or partial program compliance review and
evaluation of a local government program more frequently than the standard
schedule. The review process shall consist of a self-evaluation by each
local government of local program implementation and enforcement as well as an
evaluation by department staff. Based on these evaluations, the board will
make a consistency finding regarding the implementation of each local program
department shall provide the results and compliance recommendations to the
board in the form of a corrective action agreement should deficiencies be
found; otherwise, the board may find the program compliant. When deficiencies
are found, the board will establish a schedule for the local government to come
into compliance. The board shall provide a copy of its decision to the local
government that specifies the deficiencies, actions needed to be taken, and the
approved compliance schedule. If the local government has not implemented the
necessary compliance actions identified by the board within 30 days following
receipt of the corrective action agreement, or such additional period as is
granted to complete the implementation of the compliance actions, then the
board shall have the authority to issue a special order to any local government
imposing a civil penalty not to exceed $5,000 per day with the maximum amount
not to exceed $20,000 per day per violation for noncompliance with the state
program, to be paid into the state treasury and deposited into the Virginia
Stormwater Management Fund established by § 10.1-603.4:1 of the Code of
Virginia.
(1) The self-evaluation shall be conducted by each local
government according to procedures developed by the board.
(2) At a minimum, the department staff's evaluation will
include a review of previous annual reports and site visits.
2. Certification of a local program. Upon a satisfactory
finding resulting from the compliance review process, the board will certify
that the local program is being implemented and enforced by the local
government consistent with the Act and this chapter and is, therefore, in
compliance. Such a certification shall be valid for a period of five years
until the local government's next scheduled review, unless the board finds a
pattern of noncompliance during the interim period of time, pursuant to
subdivision 1 of this section.
9VAC10-20-260. 4VAC50-90-270. Legal proceedings.
Sections 10.1-2103.10 Subdivision 10 of § 10.1-2103
and § 10.1-2104.1 of the Act provides provide that the
board shall take administrative and legal actions to ensure compliance by local
governments with the provisions of the Act. Before taking legal action against
a local government to ensure compliance, the board shall, unless it finds
extraordinary circumstances, initiate an administrative proceeding under the
Act and 9VAC10-20-250 4VAC50-90-260 to obtain such compliance and
give the local government at least 15 days notice of the time and place at
which it will decide whether or not to take legal action. If it finds
extraordinary circumstances, the board may proceed directly to request the
Attorney General to enforce compliance with the Act and this chapter.
Administrative actions will be taken pursuant to 9VAC10-20-250 4VAC50-90-260.
VA.R. Doc. No. R13-3317; Filed October 3, 2012, 9:10 a.m.
w –––––––––––––––––– w
TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS
DEPARTMENT OF CORRECTIONS
Proposed Regulation
Title of Regulation: 6VAC15-26. Regulations for Human
Subject Research (amending 6VAC15-26-10, 6VAC15-26-20,
6VAC15-26-30, 6VAC15-26-50, 6VAC15-26-120, 6VAC15-26-130; adding 6VAC15-26-61,
6VAC15-26-71, 6VAC15-26-81, 6VAC15-26-91, 6VAC15-26-101, 6VAC15-26-102;
repealing 6VAC15-26-40, 6VAC15-26-60, 6VAC15-26-70, 6VAC15-26-80, 6VAC15-26-90,
6VAC15-26-100, 6VAC15-26-110, 6VAC15-26-140).
Statutory Authority: §§ 53.1-5 and 53.1-5.1 of the
Code of Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: December 21, 2012.
Agency Contact: John Britton, Director, Research and
Management Services, Department of Corrections, 6900 Atmore Drive, Richmond, VA
23225, telephone (804) 674-3268 ext. 1241, FAX (804) 674-3590, or email
john.britton@vadoc.virginia.gov.
Basis: Section 53.1-5 of the Code of Virginia authorizes
the Board of Corrections to make, adopt and promulgate such rules and
regulations as may be necessary to carry out the provisions of Title 53.1 of
the Code of Virginia and other laws of the Commonwealth pertaining to local,
regional and community correctional facilities.
Section 53.1-5.1 of the Code of Virginia requires the board to
promulgate regulations pursuant to the Administrative Process Act (§ 2.2-4000
et seq.) to effectuate the provisions of Chapter 5.1 (§ 32.1-162.16 et seq.) of
Title 32.1 of the Code of Virginia for human research.
Purpose: These regulations establish conditions,
standards, and procedures that facilitate the Department of Corrections' review
and approval of human research, on an informed consent basis, of offenders and
employees. These regulations apply to any individual, group, or agency
conducting research using human participants within the Virginia Department of
Corrections, including any facility, program, or organization owned, operated,
funded, or licensed by the department. The provisions protect the health,
safety, and welfare of participants in human research.
Substance: 6VAC15-26-10 Definitions: Definitions have
been inserted or amended to address the amendments and additions of specific
information within the regulation, including "Human Subject Research
Review Committee" or "HSRRC," "Organizational work
unit," "Research Agreement," "Research Proposal," and
"Voluntary informed consent."
6VAC15-26-30 Policy: Adding and amending requirements that all
participation in human subject research is voluntary, precautions will be
exercised to avoid any known risk to participants, and that such research shall
not be conducted without documentation of appropriate review and approval.
6VAC15-26-40 Certification process: Repealing section.
6VAC15-26-50 Composition: Amending to set the composition and
functions of the HSRRC.
6VAC15-26-60 Elements of each committee's review process:
Repealing section; requirements incorporated into 6VAC15-26-61.
6VAC15-26-61 Duties and responsibilities: Adding section to
set the duties and responsibilities of the HSRRC including requirements of
6VAC15-26-60.
6VAC15-26-70 Kinds of research exempt from committee review:
Repealing section; requirements moved to 6VAC15-26-101.
6VAC15-26-71 Reports: Adding section to require interim and
final reports from the researcher to the HSRRC; reporting requirements
previously in 6-VAC15-26-60.
6VAC15-26-80 Expedited review procedures for certain kinds of
research involving no more than minimal risk: Repealing section; no longer
applicable.
6VAC15-26-81 Records maintenance: Adding section requiring
maintenance of certain records by the principal researcher.
6VAC15-26-90 Informed consent: Repealing section; some
requirements moved to 6VAC15-26-102, other requirements duplicate 6VAC15-26-30.
6VAC15-26-91 Publication rights: Adding section setting the
rights of the researcher, the HSRRC, and the Department of Corrections to
access, use, and disseminate research findings.
6VAC15-26-100 Committee records: Repealing section;
requirements moved to 6VAC15-26-61.
6VAC15-26-101 Research exempt from HSRRC review: New section;
updates the requirements of 6VAC15-26-70.
6VAC15-26-102 Waiver of signed voluntary informed consent
form: New section; sets the requirements and conditions when signed informed
consent forms are not needed.
6VAC15-26-110 Mandatory reporting: Repealing section.
6VAC15-26-130 Applicability of state and federal policies:
Moves exemption for research studies subject to federal regulation from
6VAC15-26-140.
6VAC15-26-140 Applicability of federal policies: Repealing
section; requirements moved to 6VAC15-26-130.
Issues: This action poses no disadvantages to the public
or the Commonwealth. The amendments affect internal operational practices, and
serve to protect research subjects, the Department of Corrections, and
researchers. These regulations should prove advantageous by providing the
opportunity to gather and develop knowledge to advance correctional and social
sciences.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Corrections proposes to 1) reduce the number of the Human Subject Research
Review Committee (HSRRC) members from five to three and 2) require that all
research proposals, research agreements, accompanying documentation and reports
must be submitted to HSRRC electronically.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. These regulations establish rules
for research projects involving the offenders housed by and the employees
working for the Virginia Department of Corrections (DOC). These rules apply to
any individual, group, or agency conducting research using human participants
within the DOC, including any facility, program, or organization owned,
operated, funded, or licensed by DOC.
One of the proposed changes will reduce the number of the HSRRC
members from five to three. The members of HSRRC do not receive any
compensation and perform their duties as a professional courtesy. DOC has had
some difficulty finding enough volunteers to serve on this committee. Thus, the
proposed changes will reduce the number of members that make up the committee
from five to three. While this change is procedurally significant, no
significant economic effect is expected.
Another proposed change will require that all research
proposals, research agreements, accompanying documentation, and reports must be
submitted to HSRRC electronically. DOC Economic impact of 6VAC15-26 2 notes
that the current state of the communication technology makes it much easier to
transfer information electronically compared to 1994 when these regulations
were drafted. As a result the Board of Corrections proposes that all documents
involving human subject research projects are communicated through electronic
means. According to DOC, approximately 15 to 20 research proposals are received
per year primarily from students or faculty associated with institutions of
higher learning. The provision for electronic submission of research proposal
documents is expected to reduce printing, handling, and postage costs that
would have otherwise been incurred by the researchers in dealing with the paper
copies.
According to DOC, all of the remaining changes merely clarify
the practices already followed under these regulations. Since the remaining
changes are not expected to affect the way these regulations are currently
enforced, no significant economic effect is expected other than improving the
clarity of the regulations.
Businesses and Entities Affected. DOC receives approximately 15
to 20 research proposals per year almost all of which are from students or
faculty associated with institutions of higher learning.
Localities Particularly Affected .The proposed changes apply
throughout the Commonwealth.
Projected Impact on Employment. No significant impact on
employment is expected.
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. The proposed changes
do not impose cost or other effects on small businesses.
Small Businesses: Alternative Method that Minimizes Adverse
Impact. The proposed changes do not impose adverse impact on small businesses.
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
107 (09). 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 Response to Economic Impact Analysis: The
Department of Corrections concurs with the economic impact analysis prepared by
the Virginia Department of Planning and Budget regarding the proposed
amendments to 6VAC15-26, Regulations for Human Subject Research.
Summary:
The proposed amendments update the regulations governing
the form and review process for research to be conducted on human subjects with
the Department of Corrections. The proposed amendments define the proposed
research project information for the researcher to submit, the review process
for approval, the agreements and conditions required for conducting an approved
research project, the consent required from research subjects, the security of
data collected, and the use of research findings.
The proposed amendments also reduce the number of Human
Subject Research Review Committee(HSRRC) members from five to three and
establish and define the HSRRC as the Department of Corrections committee
responsible for (i) reviewing all submitted research projects for completeness
and compliance with the Regulations for Human Subject Research, with all
applicable Department of Corrections' operating procedures, and with all
applicable state and federal regulations pertaining to human subject research;
(ii) approving or denying submitted research proposals; (iii) monitoring all
approved research projects for adherence to the scope of the research that was
approved; and (iv) reporting on all research projects approved, all research
projects denied and the findings of all approved research projects.
Part I
General Provisions
6VAC15-26-10. Definitions.
The following words and terms, when used in this
chapter, shall have the following meanings, unless the context clearly
indicates otherwise:
"Board" means the Board of Corrections.
"Department" means the Department of Corrections.
"Director" means the Director of the Department of
Corrections.
"Human research" means any systematic investigation
utilizing human subjects which may expose such human subjects to physical or
psychological injury as a consequence of participation as subjects and which
departs from the application of established and accepted therapeutic methods
appropriate to meet the subjects' needs.
"Human Subject Research Review Committee" or
"HSRRC" means the Department of Corrections committee responsible for
(i) reviewing all submitted research projects for completeness and compliance,
with the Regulations for Human Subject Research, with all applicable Department
of Corrections operating procedures, and with all applicable state and federal
regulations pertaining to human subject research; (ii) approving or denying
submitted research proposals; (iii) monitoring all approved research projects
for adherence to the scope of the research that was approved; and (iv)
reporting on all research projects approved, all research projects denied and
the findings of all approved research projects. The composition of the HSRRC
and its responsibilities shall be as stated in Part II (6VAC15-26-50 et seq.)
of this chapter.
"Legally authorized representative" means (i) the
parent or parents having custody of a prospective subject, (ii) the legal
guardian of a prospective subject, or (iii) any person or judicial body
authorized by law or regulation to consent on behalf of a prospective subject to
such subject's participation in the particular human research. For the purposes
of this definition, any person authorized by law or regulation to consent on
behalf of a prospective participant to his participation in the particular
human research shall include an attorney-in-fact appointed under a durable
power of attorney, to the extent the power grants the authority to make such a
decision. The attorney-in-fact shall not be employed by the person,
organizational unit or agency conducting the human research and shall not be
authorized to consent to nontherapeutic medical research. No official or
employee of the organizational unit or agency conducting or authorizing the
research shall be qualified to act as a legally authorized representative.
"Minimal risk" means that the risks of harm
anticipated in the proposed research are not greater, considering probability
and magnitude, than those ordinarily encountered in daily life or during the
performance of routine physical or psychological examinations or tests.
"Nontherapeutic research" means human research in
which there is no reasonable expectation of direct benefit to the physical or
mental condition of the human subject.
"Organizational work unit" means any unit,
facility, office, or district within the Department of Corrections, such as
prisons, correctional centers, correctional field units, correctional work
centers, probation and parole districts or offices, detention centers,
diversion centers, or units supervised by a manager who reports directly to the
Deputy Director of Administration. Each organizational work unit is managed by
an organizational unit head such as a warden, superintendent, chief probation
and parole officer, or manager.
"Participant" or "human participant"
means a living individual whether personnel or inmate, probationer, or
parolee employee or offender about whom an investigator a
researcher (whether professional or student) conducting research obtains
(i) data through intervention or interaction with the individual, or (ii)
identifiable private information. "Intervention" includes both
physical procedures by which data are gathered and manipulations of the
participant or participant's environment that are performed for research
purposes. "Interaction" includes communication or interpersonal
contact between investigator researcher and participant.
"Private information" includes information about
behavior that occurs in a context in which an individual can reasonably expect
that no observation or recording is taking place, and information which has
been provided for specific purposes by an individual and which the individual
can reasonably expect will not be made public. Private information must be
individually identifiable in order for obtaining the information to constitute
research involving human participants.
"Research" means the systematic development of
knowledge essential to effective planning and rational decision making. It
involves the assessment of current knowledge on conceptual problems selected,
statement of those problems in researchable format, design of methodologies
appropriate to the problems, and the application of appropriate analytical
techniques to the data. Research findings should provide valuable information
to management for policy options.
"Research agreement" means the document signed
by the principal researcher, research project supervisor, or advisor and the
HSRRC indicating the principal researcher and research project supervisor or
advisor agree to conduct their research project in the manner in which the
research project was approved by the HSRRC, including compliance with this
chapter, all applicable Department of Corrections' operating procedures, all
applicable state and federal laws and regulations, the research project
timeline, and any conditions imposed by the HSRRC. The research agreement is
governed by and must comply with the provisions of this chapter.
"Researcher" means an individual who has
professional standing in the pertinent field or is supervised directly by such
an individual.
"Research project" means the systematic collection
of information, analysis of data, and preparation of a report of findings.
"Research proposal" means the document or
documents completed by the principal researcher outlining: (i) information
about the researchers, including contact information, affiliations, and funding
sources; (ii) the human research to be performed, including purpose,
methodology, informed consent, time frame, and Department of Corrections
resources required; and (iii) any endorsements. The research proposal must be
submitted to and approved by the HSRRC. Research proposals are to be limited to
twenty pages (not including bibliographies, curriculum vitae, letters of
endorsement, copies of surveys or instruments to be used, copies of external Institutional
Review board approvals, and voluntary informed consent forms.) A suggested
template for a research proposal is incorporated by reference with this
chapter.
"Voluntary informed consent" means the knowing
consent of an individual so situated as to be able to exercise free power of
choice without undue inducement or any element of force, fraud, deceit, duress,
or other form of constraint or coercion. Voluntary informed consent forms
shall not include any language through which the human subject waives or
appears to waive any of his legal rights, including any release of any
individual, facility, agency, or agents thereof, from liability or negligence.
The human participant shall sign all voluntary consent forms confirmed by an
acceptable witness. With regard to the conduct of human research, the
basic elements of information necessary to such voluntary informed consent
shall include:
1. A fair explanation to the individual of any procedures to
be followed and their purposes, including identification of any procedures
which are experimental;
2. A description of any attendant discomforts and risks
reasonably to be expected;
3. A description of any benefits reasonably to be expected;
4. A disclosure of any appropriate alternative procedures that
might be advantageous for the individual;
5. An offer to answer any inquiries by the individual
concerning the procedure; and
6. An instruction that the individual is free to withdraw his
voluntary informed consent and to discontinue participation in the human
research at any time without prejudice to him.
A copy of the Voluntary Informed Consent form is
incorporated by reference with this chapter.
6VAC15-26-20. Applicability.
This chapter shall apply to any individual, group, or agency
conducting research which that uses human participants within the
Virginia Department of Corrections, including any facility, program or
organization owned, operated, funded, or licensed by the department.
6VAC15-26-30. Policy.
A. No human research may be conducted without informing the
participant or his legally authorized representative in writing of the risks,
procedures, and discomforts of the research. The voluntary informed consent of
the participant or his legally authorized representative to participate in the
research must be documented in writing and supported by signature of a witness
not involved in the conduct of the research, except as provided in 6VAC15-26-90
F 6VAC15-26-102. Arrangements shall be made for those who need
special assistance in understanding the consequences of participating in the
research.
B. Each human research review activity shall be approved
by a committee composed of representatives of varied backgrounds who shall
assure the competent, complete and professional review of human research
activities. No offender shall be subjected to experimentation or
participation in research against his will.
C. Nontherapeutic research using institutionalized
participants shall be is prohibited unless it is determined by
the research review committee HSRRC that such nontherapeutic
research will not present greater than minimal risk.
D. The individuals conducting the research shall be
required to notify all participants of research of the risks caused by the
research which are discovered after the research has concluded. Research
involving known and substantive physical, mental, or emotional risk to the
participants, including the withholding of any prescribed program or treatment,
is specifically prohibited.
E. Department of Corrections studies, program evaluations,
and routine data analyses for management purposes are exempt from this policy.
Medical research shall only be conducted in accordance with Department of
Corrections Operating Procedure 701.1, Health Services Administration, which is
incorporated by reference with this chapter.
F. The burden of proof for review by any committee shall
be with the principal researcher. Research shall not interfere with the
rights of offenders or Department of Corrections' employees.
G. Proper precautions must be exercised for the protection
of the research participants rights and for the overall safety and security of
the public, the researcher, and the Department of Corrections.
H. Research shall not interfere significantly with ongoing
programs or operations of the Department of Corrections.
I. The research findings shall not identify individual
participants. The confidentiality and anonymity of all offenders and other
parties engaged in the research will be maintained.
J. Researchers are required to notify all participants of
risks caused by the research that are discovered after the research has
concluded.
K. Each human research activity shall be reviewed and
approved by the HSRRC.
L. No human research activity involving the Department of
Corrections shall be initiated without a research proposal reviewed and
approved by the HSRRC.
M. Each submitted research proposal must be accompanied by
a research agreement signed by the principal researcher, or research project
supervisor or advisor.
N. All research proposals, research agreements, and
accompanying documentation must be submitted to the HSRRC electronically via
email.
O. The burden of proof for review by the HSRRC shall be
with the principal researcher.
P. Research shall not commence until all procedural and
applicable human research reviews and approvals are completed and the director
or applicable deputy director signs an approval memorandum on behalf of the
department. This approval memorandum and necessary information describing the
project shall be sent to the appropriate Department of Corrections
organizational unit head, regional director, and principal researcher.
Q. This chapter does not apply to Department of
Corrections studies, program evaluations, and routine data analyses for
management purposes.
Part II
Human Research Review Committees
6VAC15-26-40. Certification process. (Repealed.)
A. Organizational units seeking to conduct or sponsor
human research are required to submit statements to the department assuring
that all human research activities will be reviewed and approved by a human
research review committee. Organizational units shall report annually to the
director giving assurance that a committee exists and is functioning. These
reports should include a list of committee members, their qualifications for
service on the committee, their organizational unit affiliation and a copy of
the minutes of committee meetings.
B. Prior to the initiation of a human research project,
organizational units shall also send to the director a one-page summary
containing the following information:
1. Name, address, telephone numbers, and title and affiliation
of principal researcher;
2. Name of person who will supervise the project, if
different from the principal researcher;
3. Funding source, if any;
4. Date the proposal was submitted to the appropriate human
research review committee;
5. Title of project;
6. An objectives statement of the proposed project with
anticipated results;
7. Methodology describing in a concise manner the research
design, sampling strategy, and analytical techniques to be used and indicating
the effects of the research methodology, if any, on existing programs and
organizational unit operations;
8. The voluntary informed consent statement;
9. Time frame indicating proposed beginning and ending
dates;
10. Department resources required, including personnel,
supplies and materials, equipment, workspaces, access to participants and
files, and any other resources that the researcher will require from the
department or its subsidiaries; and
11. Project endorsement for student research. Letters or
other documents must be attached to indicate endorsement of the project by the
academic advisor or other appropriate persons.
C. Each person engaged in the conduct of human research or
proposing to conduct human research shall associate himself with any
organizational unit having a committee, and such human research shall be
subject to review and approval by the committee in the manner set forth in this
section.
D. The director may inspect the records of the committee.
E. The chairman of the committee shall report as soon as
possible to the head of the organizational unit and to the director any
violation of the research protocol which led the committee to either suspend or
terminate the research.
Part II
Human Subject Research Review Committee (HSRRC)
6VAC15-26-50. Composition of research review committees the
HSRCC.
A. Each committee The HSRRC shall have at least
five three members, appointed by the organizational unit head
director or designee, with varying backgrounds to provide complete and
adequate review of activities commonly conducted by the organizational unit
researchers. The committee HSRRC shall be sufficiently
qualified through the experience and diversity of its members, including
consideration of race, gender and cultural background. In addition to
possessing the professional competence necessary to review specific activities,
the committee must be able to ascertain the acceptability of applications and
proposals in terms of organizational unit commitments and regulations, if
applicable by law; standards of professional conduct and practice; and
community attitudes. If a committee regularly reviews research that has an
impact on an institutionalized or other vulnerable category of participants,
the committee shall have in its membership one or more individuals who are
primarily concerned with the welfare of these participants and who have
appropriate experience to serve in that capacity.
1. The HSRRC shall not be comprised entirely of men or of
women.
2. The HSRRC shall not be comprised entirely of members
from one organizational work unit.
3. The HSRRC shall have at least one member who is not
otherwise affiliated with the Department of Corrections and is not an immediate
family member of a person who is affiliated with the department.
B. No committee shall consist entirely of men or women, or
entirely of members of one profession. At least one member shall be an
individual whose primary concerns are in nonscientific areas (e.g., lawyers,
ethicists, members of the clergy). At least three members shall be individuals
who are not otherwise connected with the department. In addition to
possessing the professional competence necessary to review research proposals,
the HSRRC must be able to ascertain the acceptability of research proposals in
terms of organizational work unit commitments, this chapter, applicable
Department of Corrections' operating procedures, any applicable state and
federal law or regulation, standards of professional conduct and practice, and
community attitudes.
C. Each committee shall include at least one member who is
not otherwise affiliated with the organizational unit and who is not part of
the immediate family of a person who is affiliated with the organizational
unit.
D. C. No member of a committee the
HSRRC shall participate in the committee's HSRRC's initial or
continuing review of any research project in which the member has a
conflict of interest (defined as having direct involvement in or department
approval authority over the proposed human research or otherwise having a
conflict of interest under applicable Virginia law). The committee HSRRC
has responsibility for determining whether a member has a conflicting interest.
E. A committee D. The HSRRC may, at its
discretion, invite individuals with competence in special areas to assist in
the review of complex issues which that require expertise beyond
or in addition to that available on the committee to the HSRRC.
These individuals may not vote with the committee HSRRC.
F. E. A quorum of the committee HSRRC
shall consist of a majority of its members including at least one member
whose primary concerns are in nonscientific areas. If a quorum cannot be
established (or cannot meet within the established time frames) from the
existing committee HSRRC, the organizational unit head director
or designee may replace temporarily an active committee member with an
alternate to the degree needed to establish a quorum.
G. One member of the committee shall be designated as
secretary of the committee and shall take and prepare formal minutes of each
meeting.
H. The committee and the organizational unit shall
establish procedures and rules of operation necessary to fulfill the
requirements of this chapter.
6VAC15-26-60. Elements of each committee's review process.
(Repealed.)
A. No human research shall be conducted or authorized by
an organizational unit or agency unless such committee has reviewed and
approved the proposed human research project giving consideration to:
1. The adequacy of the description of the potential
benefits and risks involved and the adequacy of the methodology of the
research;
2. The degree of the risk and, if the research is
nontherapeutic, whether it presents greater than minimal risk;
3. Whether the rights and welfare of the participants are
adequately protected;
4. Whether the risks to the participants are outweighed by
the potential benefits to them;
5. Whether the voluntary informed consent is to be obtained
by methods that are adequate and appropriate, and whether the written consent
form is adequate and appropriate in both content and language for both the
research and participants of the research;
6. Whether the persons proposing to supervise or conduct
the particular human research are appropriately competent and qualified;
7. Whether criteria for selection of participants are
equitable, especially in research regarding the future development of mental or
physical illness;
8. Whether the research conforms with such other
requirements as the board may establish; and
9. Whether appropriate studies in the nonhuman systems have
been conducted prior to the involvement of human participants.
B. Each committee shall review and approve projects to
ensure conformity with the approved proposal at least annually.
C. Research shall be approved by the committee which has
jurisdiction over the participant. When cooperating organizational units
conduct some or all of the research involving some or all of the participants,
each cooperating organizational unit is responsible for safeguarding the rights
and welfare of human participants and for complying with this chapter, except that
in complying with this chapter organizational units may enter into joint
review, rely upon the review of another qualified committee, or make similar
arrangements aimed at avoiding duplication of effort. Such arrangements may be
made by the committee chairperson with the approval of a majority of the
members present at a meeting of the committee.
D. The committee shall consider completed research
proposals within 60 days after submission to the committee's chairman. In order
for the research to be approved, it shall receive the approval of a majority of
those members present at a meeting in which a quorum exists. A committee shall
notify investigators and the organizational unit in writing of its decision to
approve or disapprove the proposed research activity, or of modifications
required to secure committee approval.
E. The committee shall develop a written procedure to be
followed by a participant who has a complaint about a research project in which
he is participating or has participated.
F. Any participant who has a complaint about a research
project in which he is participating or has participated shall be referred to
the chairperson of the committee who shall refer it to the committee to
determine if there has been a violation of the protocol.
G. The committee shall require periodic reports. The
frequency of such reports should reflect the nature and degree of risk of each
research project.
6VAC15-26-61. Duties and responsibilities.
A. The HSRRC shall establish procedures and rules of
operation necessary to fulfill the requirements of this chapter.
B. The HSRRC shall review all submitted research proposals
for the following:
1. Completeness, including:
a. Researcher information.
(1) Name of principal researcher
(2) Affiliation
(3) Mailing address
(4) Telephone number
(5) Email address
(6) Names of all other researchers participating in the
research project
(7) Name of research project supervisor or advisor, if
different from subdivision 1 a (1) of this subsection
(a) Telephone number
(b) Email address
(8) Funding source
(9) Curriculum vitae of principal researcher, all persons
named as researchers and research project supervisor or advisor
b. Research proposal information.
(1) Date research proposal submitted to HSRRC
(2) Title of research proposal
(3) Purpose of research proposal
(4) Methodology
(a) Research design
(b) Sampling methods
(c) Methods of analysis
(5) Discussion of the research proposal in the context of
relevant literature
(6) Discussion of the benefits to the Department of
Corrections as well as the field of study
(7) Copies of any surveys or instruments to be used
(8) Voluntary informed consent forms
(9) Timeline for the research project
(10) Department of Corrections resources required
(including personnel, supplies, materials, equipment, workspace, access to
participants and files, etc.)
(11) External Institutional Review Board (IRB) approval
(including academic IRBs, research group IRBs, and government IRBs); all
external IRB approvals must be received before the HSRRC will initiate review
of a submitted research proposal
c. Letters of endorsement.
2. Compliance with this chapter and all applicable state
and federal laws and regulations. Compliance includes, but is not limited to:
a. The researchers' ability to obtain the appropriate
security clearances to enter an organizational work unit.
b. The researchers' adherence to an organizational work
unit's standards for appropriate attire, including dress or wardrobe, jewelry,
hair, grooming, body piercings and tattoos.
c. The researchers' ability to pass an organizational work
unit's security screening process for contraband, including weapons of any
kind, alcohol, drugs of any kind, cellular phones, other electronic devices,
tobacco products (including lighters and matches), and any other items deemed
as potentially adversely impacting the safety and security of the Department of
Corrections, organizational work unit, department staff, research participants
or other offenders, the researchers, or the general public.
3. Adherence to basic research standards, including:
a. Credentials. The principal researcher shall have
academic or professional standing in the pertinent field or job-related
experience in the areas of study or be directly supervised by such a person.
b. Ethics. The research shall conform to the appropriate
standards of ethics of professional societies such as the American
Psychological Association, the American Sociological Association, the National
Association of Social Workers, or other equivalent society.
c. Protection of rights. The principal researcher is
responsible for the conduct of his staff and assumes responsibility for the
protection of the rights of participants involved in the research project.
d. Confidentiality or anonymity. Research project
information given by participants to the researcher or researchers shall be
confidential or anonymous depending on the study design. This does not preclude
the reporting of results in aggregated form that protects the identity of
individuals, or the giving of raw data to the Department of Corrections for
further analysis. The confidentiality of any such raw data shall be monitored
by the department. Persons who breach confidentiality or anonymity shall be
subject to sanctions in accordance with applicable laws, policies, and procedures.
e. Participant incentives. The opportunity to participate
in research is considered sufficient incentive for participation. The offering
of additional incentives is prohibited without specific written approval from
the applicable Department of Corrections deputy director. Sentence reduction or
pecuniary compensation are always prohibited as incentives.
4. Determination if the research proposal is subject to the
human research review requirements of §§ 32.1-162.16 through 32.1-162.20
of the Code of Virginia.
5. Agreement with Department of Corrections research
procedures.
a. The principal researcher and research project supervisor
or advisor must submit a separate, signed written research agreement when
submitting their research proposal indicating that the principal researcher,
research project supervisor or advisor, and all other researchers and staff
under their supervision who are associated with the research project have read,
understand, and agree to abide by Department of Corrections research
procedures.
b. The research agreement shall establish a timeline for
the research project and the specific date when the principal researcher shall
submit the final report to the HSRRC.
c. In the case of student research, the student's academic
advisor must sign the research agreement indicating endorsement of the research
project.
C. After reviewing each submitted, complete research
proposal, research agreement and accompanying documentation, the HSRCC will
vote to approve or deny the research proposal.
D. A research proposal shall be approved by the HSRRC when
a majority of the quorum of the HSRRC votes to approve the research proposal.
E. In the event a research proposal is denied, the HSRRC
shall notify the principal researcher of the reason or reasons for denial and
any requested clarifications, edits, updates, or additions that can be made to
the research proposal. The principal researcher may resubmit a revised research
proposal with these requested clarifications, edits, updates, or additions. The
HSRRC will then review the resubmitted revised, complete research proposal in
accordance with 6VAC15-26-50 B.
F. Upon approval of a research proposal by the HSRRC, the
HSRRC shall prepare a research brief summarizing the research proposal with any
comments. The research brief will be provided to the director or the
appropriate deputy director for review and approval.
G. Upon approval of the research brief by the director or
the appropriate deputy director, the HSRRC shall provide an approval memorandum
and necessary information describing the research project to the organizational
work unit head, regional director, and principal researcher.
H. The HSRRC shall retain a separate electronic file for
each submitted research proposal. Each electronic file shall contain:
1. The original submitted research proposal.
2. The research agreement.
3. Any accompanying documentation.
4. Any resubmitted revised research proposals.
5. The research brief.
6. The approval memorandum.
7. Any progress reports.
8. The final report.
9. All communication between the HSRRC, principal
researcher, research project supervisor or advisor, the Department of
Corrections Director, and the applicable deputy director, regional director,
and organizational unit head pertaining to the research project.
I. At the time the research agreement is signed, the HSRRC
shall establish due dates for progress reports to be provided by the principal
researcher. These progress reports will inform the HSRRC of the status of
the research project and any difficulties encountered that might delay or
preclude completion of the research project.
J. The HSRRC shall establish research priorities
consistent with the needs of the Department of Corrections.
K. The HSRRC shall regulate the number and timetable of research
projects so as to not disrupt the normal functioning of any Department of
Corrections operational work unit.
L. Upon receipt of a complaint from an organizational unit
head or participant, the HSRRC will investigate to determine if there has been a
violation of these regulations, Department of Corrections operating procedures,
the research proposal, the research agreement or any applicable state or
federal laws or regulations.
M. If the HSRRC determines that a principal researcher,
researcher, research project supervisor or advisor, or staff supervised by them
has violated any provisions of this chapter, Department of Corrections
operating procedures, the research proposal, the research agreement, or any
applicable state or federal laws or regulations, the HSRRC may terminate the
research project at any time.
N. The HSRRC shall submit to the Governor, the General
Assembly, and the director or his designee at least annually a report on the
human research projects reviewed and approved by the HSRRC, including any
significant deviations from the approved research projects.
6VAC15-26-70. Kinds of research exempt from committee
review. (Repealed.)
Research activities in which the only involvement of human
participants will be in one or more of the following categories are exempt from
this chapter unless the research is covered by other sections of this chapter:
1. Research conducted in established or commonly accepted
educational settings, involving commonly used educational practices, such as:
a. Research on regular and special education instructional
strategies; or
b. Research on the effectiveness of, or the comparison
among, instructional techniques, curriculum or classroom management methods.
2. Research involving solely the use and analysis of the results
of standardized psychological, educational, diagnostic, aptitude, or
achievement tests, if information taken from these sources is recorded in such
a manner that participants cannot be reasonably identified directly or through
identifiers linked to the participants.
3. Research involving survey or interview procedures,
unless responses are recorded in such a manner that participants can be
identified directly or through identifiers linked to the participants, and
either:
a. The participants' responses, if they became known
outside the research, could reasonably place the participant at risk of
criminal or civil liability or be damaging to the participants' financial
standing, employability, or reputation; or
b. The research deals with sensitive aspects of the
participant's own behavior, such as sexual behavior, drug or alcohol use,
illegal conduct, or family planning.
4. Research involving solely the observation (including
observation by participants) of public behavior, unless observations are recorded
in such a manner that participants can be identified directly or through
identifiers linked to the participants, and either:
a. The observations recorded about the individual, if they
became known outside the research, could reasonably place the participant at
risk of criminal or civil liability or be damaging to the participant's
financial standing, employability, or reputation; or
b. The research deals with sensitive aspects of the
participant's own behavior such as sexual behavior, drug or alcohol use,
illegal conduct, or family planning.
5. Research involving solely the collection or study of
existing data, documents, records, or pathological or diagnostic specimens, if
these sources are publicly available or if the information taken from these
sources is recorded in such a manner that participants cannot be identified
directly or through identifiers linked to the participants.
6. Research involving solely a combination of any of the
activities described in this section.
6VAC15-26-71. Reports.
A. The principal researcher must submit progress reports
to the HSRRC by the dates agreed upon in the research agreement. These progress
reports must be submitted electronically via email.
B. The principal researcher must submit a final report to
the HSRRC. The final report must be submitted electronically via email.
C. The HSRRC reserves the right to reproduce the final
report for official Department of Corrections use only.
6VAC15-26-80. Expedited review procedures for certain kinds
of research involving no more than minimal risk. (Repealed.)
A. The committee may conduct an expedited review of a
human research project which involves no more than minimal risk to the
participants if (i) another institution's or agency's human research review
committee has reviewed and approved the project or (ii) the review involves
only minor changes in previously approved research and the changes occur during
the approved project period. Under an expedited review procedure, the review
may be carried out by the committee chairperson or one or more experienced
reviewers designated by the chairperson from among members of the committee. In
reviewing the research, the reviewers may exercise all of the authorities of
the committee except that the reviewers may not disapprove the research. A
research activity may be disapproved only after review in accordance with the
nonexpedited procedure set forth in 6VAC15-26-60.
B. Each committee which uses an expedited review procedure
shall adopt a method for keeping all members advised of research proposals
which have been approved under the procedure.
C. Research activities involving no more than minimal risk
and in which the involvement of human participants will only be in one or more
of the following categories (carried out through standard methods) may be
reviewed by the research review committee through the expedited review
procedure.
1. The study of existing data in the form of records on
department personnel or inmates, probationers, or parolees, automated or other
records.
2. Research on individual or group behavior or
characteristics of individuals, such as studies of perception, attitudes or
interaction patterns, where the investigator does not manipulate participants'
behavior and the research will not involve stress to participants.
6VAC15-26-81. Records maintenance.
A. The principal researcher shall maintain records
adequate to enable the Department of Corrections to ascertain the status of the
research project at any given time.
B. The principal researcher shall maintain completed
voluntary informed consent forms in a secure location for at least three years.
6VAC15-26-90. Informed consent. (Repealed.)
A. No human research may be conducted in the absence of
voluntary informed consent subscribed to in writing by the participant or by
the participant's legally authorized representative except as provided for in
subsection F of this section. If the participant is a minor otherwise capable
of rendering voluntary informed consent, the consent shall be subscribed to by
both the minor and his legally authorized representative. An investigator shall
seek such consent only under circumstances that (i) provide the prospective
participant or the representative sufficient opportunity to consider whether or
not to participate and (ii) minimize the possibility of coercion or undue
influence. The information that is given to the participant or the
representative shall be in understandable language.
B. No individual shall participate in research unless
subsection A of this section is met for each individual. The consent by a
legally authorized representative shall be subject to the provisions of
subsection C of this section. No voluntary informed consent shall include any
language through which the participant waives or appears to waive any of his
legal rights, including any release of any individual, institution, agency or
any agents thereof from liability for negligence. Notwithstanding consent by a
legally authorized representative, no person shall be forced to participate in
any research project. Each participant shall be given a copy of the signed
consent form required by 6VAC15-26-30 A except as provided for in subsection F
of this section.
C. No legally authorized representative may consent to
nontherapeutic research unless it is determined by the committee that such
nontherapeutic research will present no more than a minor increase over minimal
risk to the participant. No nontherapeutic research shall be performed without
the consent of the participant.
D. The committee may approve a consent procedure which
omits or alters some or all of the elements of informed consent set forth in
6VAC15-26-10, or waives the requirement to obtain informed consent provided the
committee finds and documents that:
1. The research involves no more than minimal risk to the
participants;
2. The omission, alteration or waiver will not adversely
affect the rights and welfare of the participants;
3. The research could not practicably be performed without
the omission, alteration or waiver; and
4. Whenever appropriate, the participants will be provided
with additional pertinent information after participation.
E. Except as provided in subsection F of this section, the
consent form may be either of the following:
1. A written consent document that embodies the elements of
informed consent required by 6VAC15-26-10. This form may be read to the
participant or the participant's legally authorized representative, but in any
event, the investigator shall give either the participant or the representative
adequate opportunity to read it before it is signed; or
2. A short form written consent document stating that the
elements of informed consent required by 6VAC15-26-10 have been presented
orally to the participant or the participant's legally authorized
representative. When this method is used, there shall be a witness to the oral
presentation. Also, the committee shall approve a written summary of what is to
be said to the participant or the representative. Only the short form itself is
to be signed by the participant or the representative. However, the witness
shall sign both the short form and a copy of the summary, and the person
actually obtaining consent shall sign a copy of the summary. A copy of the
summary shall be given to the participant or the representative in addition to
a copy of the short form.
F. The committee may waive the requirement for the
investigator to obtain a signed consent form for some or all participants if it
finds that the only record linking the participant and the research would be
the consent document and that the principal risk would be potentially harmful
resulting from a breach of confidentiality. Each participant will be asked
whether he wants documentation linking him to the research, and the participant's
wishes will govern. In cases where the documentation requirement is waived, the
committee may require the investigator to provide participants with a written
statement explaining the research.
6VAC15-26-91. Publication rights.
A. Researchers are not permitted to publish beyond the
approved research proposal without further review and approval from the HSRRC.
B. The researcher shall furnish the HSRRC with an
electronic copy of the published research findings.
C. The Department of Corrections shall be permitted to use
the data collected in the research project and to reproduce the materials as
they are published.
D. Without the explicit written approval of the
researcher, the Department of Corrections should not publicly distribute any
dissertation or thesis material that the researcher has not published or
presented publicly or professionally.
E. Without prior approval from the HSRRC, research
conducted by employees or agents (including but not limited to interns,
volunteers, contractors, and vendors) of the department is the property of the
department and cannot be published without the approval of the director or the
appropriate deputy director.
6VAC15-26-100. Committee records. (Repealed.)
A. Documentation of all committee activities shall be prepared
and maintained and shall include the following:
1. Copies of all research proposals reviewed, evaluations
that may accompany the proposals, approved sample consent documents, progress
reports submitted by researchers, reports of injuries to participants, and
correspondence related to the research;
2. Minutes of committee meetings which shall be in
sufficient detail to show attendance at the meetings; actions taken by the
committee; the vote on these actions, including the number of members voting
for, against, and abstaining; the basis for requiring changes in or for
disapproving research; and a written summary of the discussion of controversial
issues and their resolution;
3. Records of continuing review activities;
4. Copies of all correspondence between the committee and
the investigators;
5. A list of committee members;
6. Written procedures for the committee; and
7. Statements of significant new findings provided to the
participants.
B. The records required by this chapter shall be retained
for at least three years, and records relating to research which is conducted
shall be retained for at least three years after completion of the research.
All records shall be accessible for inspection and copying by authorized
employees or agents of the department at reasonable times and in a reasonable
manner.
6VAC15-26-101. Research exempt from HSRRC review.
The following are exempt from HSRRC review:
1. Department of Corrections' studies, program evaluations
and routine data analyses for management purposes.
2. Research conducted by the Department of Corrections,
Division of Education in established or commonly accepted educational settings,
involving commonly used educational practices, such as:
a. Research on regular and special education instructional
strategies.
b. Research on the effectiveness of, or the comparison
among, instructional techniques, curriculum or classroom management methods.
3. Research involving required agency survey procedures,
unless responses are recorded in such a manner that participants can be
identified, directly or through identifiers linked to the participants, and
either:
a. The participants' responses, if they become known
outside the research, could reasonably place a participant at risk of criminal
or civil liability or be damaging to a participant's financial standing,
employability, or reputation; or
b. The research deals with sensitive aspects of a
participant's own behavior, such as sexual behavior, drug or alcohol use,
illegal conduct, or family planning.
4. Research involving solely the collection or study of
existing data, documents, records, or pathological or diagnostic specimens, if
these sources are publically available or if the information taken from these
sources is recorded in such a manner that participants connot be identified,
either directly or through identifiers linked to the participants.
6VAC15-26-102. Waiver of signed voluntary informed consent
form.
A. The HSRRC may waive the requirement for the researcher
to obtain a signed voluntary informed consent form for some or all participants
in a research project if it finds that the only record linking the participant
and the research would be the consent form and that the principal risk would be
potentially harmful resulting from a breach of confidentiality.
B. Each participant will be asked whether he wants
documentation linking him to the research, and the participant's wishes will
govern.
C. In cases where the documentation requirement is waived,
the HSRRC shall require the researcher to provide participants with a written
statement explaining the research.
6VAC15-26-110. Mandatory reporting. (Repealed.)
Each research review committee shall submit to the
governor, the General Assembly, and the director or his designee at least
annually a report on the human research projects reviewed and approved by the
committee, including significant deviations from the proposals as approved.
Part III
Role of the Department, Director, and the Board
6VAC15-26-120. Role of the department, director, and the board.
A. The director, or his designee, shall establish and
maintain records of organizational unit the HSRRC assurances,
annual reports, and summary descriptions of research projects to be reviewed by
the board.
B. The director, or his designee, shall review
communications from committees the HSRRC reporting violations of
research protocols which led to suspension or termination of the research to
ensure that appropriate steps have been taken for the protection of rights of
human research participants. The board shall be kept informed.
C. The director shall arrange for the printing and
dissemination of copies of this chapter.
Part IV
Applicability of State and Federal Policies
6VAC15-26-130. Applicability of state and federal
policies.
A. No statement in this chapter shall be construed as
limiting in any way the rights of participants in research under regulations
promulgated by the board pursuant to §§ 53.1-5 and 53.1-5.1 of the Code of
Virginia.
B. Human research that is subject to policies and
regulations for the protection of human participants promulgated by any agency
of the federal government shall be exempted from this chapter. Annual
certification shall be made that exempted projects have complied with the
policies and regulations of federal agencies to the director and the board.
6VAC15-26-140. Applicability of federal policies. (Repealed.)
Human research which is subject to policies and
regulations for the protection of human participants promulgated by any agency
of the federal government shall be exempted from this chapter. Annual
certification shall be made to the director and the board that exempted
projects have complied with the policies and regulations of federal agencies.
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 (6VAC15-26)
Research
Proposal - Sample (Operating Procedure 020.1), Attachment 1, effective April 1,
2010 (rev. 1/10).
Research
Agreement (Operating Procedure 020.1), Attachment 2, effective April 1, 2010
(rev. 1/10).
Voluntary
Informed Consent to Participate in Research (Operating Procedure 020.1),
Attachment 3, effective April 1, 2010 (rev. 1/10).
DOCUMENTS INCORPORATED BY REFERENCE (6VAC15-26)
Operating
Procedure 701.1 - Health Services Administration, Effective Date January 1,
2012, Amended March 29, 2012, Virginia Department of Corrections.
VA.R. Doc. No. R11-2246; Filed October 2, 2012, 10:03 a.m.
Final Regulation
Title of Regulation: 6VAC15-40. Minimum Standards for
Jails and Lockups (amending 6VAC15-40-10, 6VAC15-40-30,
6VAC15-40-40, 6VAC15-40-60, 6VAC15-40-90 through 6VAC15-40-130, 6VAC15-40-150
through 6VAC15-40-250, 6VAC15-40-280, 6VAC15-40-290, 6VAC15-40-300,
6VAC15-40-320, 6VAC15-40-330, 6VAC15-40-340, 6VAC15-40-360 through
6VAC15-40-420, 6VAC15-40-440, 6VAC15-40-450, 6VAC15-40-480, 6VAC15-40-510,
6VAC15-40-520, 6VAC15-40-550, 6VAC15-40-560, 6VAC15-40-600 through 6VAC15-40-670,
6VAC15-40-690, 6VAC15-40-720, 6VAC15-40-730, 6VAC15-40-740, 6VAC15-40-760,
6VAC15-40-770, 6VAC15-40-790, 6VAC15-40-810 through 6VAC15-40-840,
6VAC15-40-870, 6VAC15-40-880, 6VAC15-40-910 through 6VAC15-40-980,
6VAC15-40-1000 through 6VAC15-40-1050, 6VAC15-40-1080, 6VAC15-40-1090,
6VAC15-40-1100, 6VAC15-40-1150, 6VAC15-40-1180, 6VAC15-40-1193, 6VAC15-40-1195,
6VAC15-40-1210, 6VAC15-40-1220, 6VAC15-40-1240 through 6VAC15-40-1280,
6VAC15-40-1300, 6VAC15-40-1310, 6VAC15-40-1330 through 6VAC15-40-1360; adding
6VAC15-40-5, 6VAC15-40-405, 6VAC15-40-545, 6VAC15-40-831, 6VAC15-40-945,
6VAC15-40-1045, 6VAC15-40-1111, 6VAC15-40-1315, 6VAC15-40-1380; repealing
6VAC15-40-460, 6VAC15-40-1320).
Statutory Authority: §§ 53.1-5, 53.1-68, and
53.1-131 of the Code of Virginia.
Effective Date: November 22, 2012.
Agency Contact: William Wilson, Compliance and
Accreditation Unit, Department of Corrections, 6900 Atmore Drive, Richmond, VA
23225, telephone (804) 674-3499, FAX (804) 674-3587, or email
william.t.wilson@vadoc.virginia.gov.
Summary:
The amendments (i) clarify current standards to include
terminology and procedures, extensive modification of chapter definitions, and
incorporation by reference of two model plans (payment of costs associated with
prisoner keep and jail prisoner medical treatment programs); and (ii) add sections
to address compliance documentation, Automated External Defibrillator devices,
standards for inmate food service workers, fees for inmate keep, tools,
supervisions of inmates, and self-contained breathing apparatus.
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
General Provisions
6VAC15-40-5. Compliance documentation.
The elements listed in the compliance documentation shall
be interpreted as part of the standard. If facility policy exceeds the
requirement of the standard, the facility will be held to the content of such
policy.
Part I
General Provisions
6VAC15-40-10. Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise:
"Administrative segregation" means a form of
separation from the general population when the continued presence of the
inmate in the general population would pose a serious threat to life, property,
self, staff or other inmates, or to the security or orderly running of the institution
facility. Inmates pending investigation for trial on a criminal act or
pending transfer can also be included.
"Annually" "Annual" means
an action performed each calendar year.
"Appeal" means the procedure for review of an
action by a higher authority.
"Audit" means the determination of facility
compliance with standards through an examination of records and operations by a
team of qualified professionals.
"Automated External Defibrillator" or
"AED" means a device that automatically analyzes the heart rhythm and
permits a shock to be delivered to restore a normal heart rhythm if a problem
is detected.
"Board" means the Board of Corrections.
"Certification" means an official approval by the
Board of Corrections that allows a facility to operate.
"Chief executive officer" means the elected
or appointed individual who by law or position, has the overall
responsibility for the facility's administration and operation.
"Civilian personnel" means [ non-sworn
nonsworn ] facility employees who have been provided with
on-the-job training in facility security procedures and emergency plans and
communications, and are assigned to posts that do not require direct inmate
contact and supervision.
"Classification" means the process for determining
inmate housing, custody and program assignments.
"Communication system" means a mechanical audio transmission
such as telephone, intercom, walkie talkie or T.V. monitor.
"Compliance and Accreditation Unit" means the
unit within the Department of Corrections responsible for conducting triennial
certification audits and yearly unannounced life, health, safety inspections of
local and regional jails and lockups.
"Compliance documentation" means the required
documentation in conjunction with the requirements of this chapter used to
determine compliance during triennial certification audits and yearly unannounced
life, health, safety inspections.
"Contraband" means any item possessed by inmates
found in the possession of an inmate or found within the jail or lockup
that is illegal by law or not specifically approved for inmate possession by
the facility administrator of the facility.
"Correctional status information" means records
and data concerning a convicted person's custodial status, including probation,
confinement, work release, study release, escape [ , ] or
termination of custody through expiration of sentence, parole, pardon, or court
decision.
"Criminal history record information" means
records and data collected by criminal justice agencies on adult individuals
consisting of identifiable descriptions and notations of arrests, detentions,
indictments, information [ , ] or other formal charges
and any disposition arising there from. The term shall not include juvenile
record information, which is controlled by Chapter 11 (§ 16.1-226 et seq.)
of Title 16.1 of the Code of Virginia, criminal justice investigative
information or correctional status information.
"Culinary items" means utensils used in a
kitchen to prepare and serve food, including knives.
"Current" means unexpired.
"Daily log" means a written or electronic record
for the recording of daily activities or unusual incidents.
"Department" means the Department of
Corrections.
"Detainee" means any person confined but not
serving a sentence.
"Director" means the Director of the Department of
Corrections.
"Disciplinary detention" means the separation of an
inmate from the general population for misconduct and/or violations of
regulations.
"Disposition" as referenced in 6VAC15-40-410 and
6VAC15-40-420 means the removal of an inmate from a medical treatment facility
or the physician's discharge plan.
"Disposition" as referenced in 6VAC15-40-710
means how an inmate's clothing and personal possessions are inventoried, and
where an inmate's clothing and personal possessions are stored until the inmate
is released or transferred.
"Disposition" as referenced in 6VAC15-40-910
means the end result of items found during searches of the facility (returned
to property, disposed of, etc.).
"Duty post" means a fixed or mobile work location
in which the safety and security of the facility and inmates is carried out.
"Educational release" means an approved absence
from the facility for the purpose of participating in an educational program.
"Emergency plan" [ or
"emergency plans" ] means the written procedures for
staff responsibility in the event of fire, hazardous material release, loss of
utilities, natural disaster, hostage situations, riots, disturbances, escapes,
bomb threats, and mass arrest.
"Erroneous release" means the inadvertent
release of an inmate or detainee from the physical plant of the facility.
"Facility" means the actual physical setting in
which a program or agency functions.
"Fire prevention practices and emergency plans"
means the activities and written procedures utilized and rehearsed to ensure
the safety of staff, inmates and public.
"Fire prevention practices" means maintaining
smoke detection equipment, servicing fire extinguishers, keeping living areas
free of clutter, and storing combustible materials in the proper manner.
"Fire safety inspection" means an inspection
conducted by the Office of State Fire Marshal State Fire Marshal's
Office or local fire department approved fire marshal.
"Formal count" means a personal observation and
counting of each inmate.
"Furlough" means an approved leave of absence
from the facility granted to an inmate.
"Good time" means earned credits that will reduce
an inmate's time served.
"Grievance procedure" means the method by which
inmates may formally address complaints to the facility administration.
"Health care personnel" means individuals whose
primary duties are to provide health services to inmates.
"Health inspection" means an inspection
conducted by the local or state Department of Health.
"Impartial officer or committee" means
individual(s) who are unbiased and are not directly involved in the
particular incident or situation being reviewed.
"Indigent inmate" means an inmate having less
than the equivalent of the cost of five first class stamps in his account for
15 days.
"Inmate" means any person classified and
confined inside the secure perimeter of the facility.
"Inmate handbook" means a manual, pamphlet or
handout that contains information describing facility rules, inmate
activities, and conduct.
"Inmate records" means written or electronic
information concerning the individual's an inmate's personal,
criminal and medical history, behavior, and activities while in custody.
"Inmate worker" means an inmate classified and
assigned to perform various duties and tasks inside and outside the facility
under supervision of staff.
"Juvenile" means a person less than 18 years of age
who is not adjudicated as an adult.
"Legal mail" means mail addressed to or received
from an attorney or court.
"Local offender" means an individual who has a
conviction but who is not a state offender in accordance with § 53.1-20 of
the Code of Virginia.
"Lockup" means a temporary detention facility where
detainees are held for not more than 12 hours.
"Material Safety Data Sheet" or "MSDS"
means a document containing information on potential health effects [ of
from ] exposure to chemicals or other potentially dangerous
substances, and on safe procedures when handling chemical products.
"Medical authority" means physician or nurse.
"Medical co-payment" means the amount (dictated
by facility policy; to be a portion of the costs) an inmate pays for medical
services.
"Medical screening" means an observation and
interview process within the booking procedure designed to obtain pertinent
information regarding an individual's medical or mental health condition.
"Model Plan for Jail Prisoner Medical Treatment
Programs" means the model plan for medical treatment fees developed by the
Board of Corrections to serve as a guide for the establishment of a medical
treatment program per § 53.1-133.01 of the Code of Virginia.
"Orientation" means information for newly
admitted inmates pertaining to facility rules and regulations, access to
medical services, medical services fees and payment procedures, and programs
available.
"Permanent record" means a written or electronic
record of a facility's activities that cannot be altered or destroyed subject
to state law.
"Pharmaceuticals" means prescription and
nonprescription drugs.
"Policy" means a [definitive statement of
position on an issue concerning the organization's effective operation.
"Policy and procedures manual" means a written or
electronic record containing all policies and procedures needed for the
operation of the facility in accordance with the law and the minimum standards
for local jails and lockups.
"Post order" means a list of specific job functions
and responsibilities required of each duty post or position.
"Procedure" means a detailed, step-by-step
description of the activities necessary to fulfill the policy. A procedure
describes how, when, where, and by whom the organization will implement and
fulfill the policy.
"Program" means the plan or system through which a
correctional agency works to meet its goals; often the program requires a
distinct physical setting.
"Protective custody" means a form of separation
from the general population for inmates requesting or requiring protection from
other inmates.
"Quarterly" means an action that occurs once every
three months within a calendar year.
"Recognized certifying agency" means an agency,
such as the American Red Cross, the American Heart Association, or a local
hospital or fire department, that is approved and recognized as being qualified
to instruct first aid and CPR courses.
"Recreational activities" means any out-of-cell
activity ranging from scheduled outside or inside recreation to informal
tabletop games.
"Regional jail" (as defined in § 53.1-82 of
the Code of Virginia) means three or more counties or cities, or any
combination thereof, that are authorized to contract for services for the
detention and confinement of categories of offenders in single or regional jail
facilities operated by the contracting jurisdictions. In addition (i) any three
or more counties, cities, or towns, or any combination thereof, operating a
jail facility pursuant to an agreement for cooperative jailing established on
or before January 31, 1993; (ii) any existing regional jail facility
established by only two cities, counties, or towns on or before June 30, 1982;
and (iii) any regional jail facility established by only two contiguous
counties whose boundaries are not contiguous by land with the boundaries of any
other county in the Commonwealth, may participate under the provisions of this
section. The board shall promulgate regulations specifying the categories of
offenders that may be served pursuant to the contracts provided for herein.
"Rehabilitation release" means an approved
absence from the facility for the purposes of participating in a rehabilitation
program.
"Security staff" means those officers who have
completed on-the-job training and whose primary responsibilities are the safety
and security of the facility and inmates.
"Sharps" means any medical or dental instrument
(lancet, needle, syringe, scalpel, etc.) stored and used within the facility.
"State offender" means an individual sentenced to a
term of incarceration in accordance with § 53.1-20 of the Code of
Virginia. For the purpose of 6VAC15-40-230 and 6VAC15-40-240 relative to work
release, educational release or rehabilitative rehabilitation
release, a state offender shall be defined in terms of the intake schedule
pursuant to § 53.1-20 of the Code of Virginia.
"Trained" means completion of on-the-job
training including, at a minimum, the following topics: key control, count
procedures, emergency plans, first aid and CPR, universal precautions, suicide
prevention, use of force, emergency communication, and security operations. A
supervisor or field training officer current in Basic Jail Training shall
verify in writing the individual has received on-the-job training and is
competent in said training. The scope and breadth of the training shall be at
the discretion of the sheriff or facility administrator.
"Twelve months" means no later then the last day
of the same month each year.
"Universal precautions" means a set of procedural
directives and guidelines detailing placing barriers between staff and all
blood and body bodily fluids. These directives include provision
of provisions for protective barrier devices, standardized labeling
of biohazards, mandatory training of employees in universal precautions,
management of exposure incidents, and the availability to employees
of immunization for employees against Hepatitis B.
"Virginia Department of Health inspection" or
"VDH inspection" means the required 12-month inspection conducted by
the VDH.
"Volunteer" means an individual who provides
services to the detention facility without compensation.
"Work day" means Monday through Friday.
"Work release" means full-time employment or
participation in suitable vocational training programs.
6VAC15-40-30. Requirement for written statement.
The facility shall have a written statement and policy
discussing its philosophy, goals and objectives. The written statement shall
be reviewed every 12 months by administrative staff.
6VAC15-40-40. Policy and procedures manual.
Written policy and procedures shall be maintained and shall
be available 24 hours a day to all staff. The facility's policies and
procedures shall be reviewed every 12 months by the administration administrative
staff and updated to keep current with changes.
6VAC15-40-60. Annual report.
A written annual report of the availability of services and
programs to inmates in a facility shall be reviewed by the facility
administrator and provided to the sentencing courts and may be provided to
relevant community agencies.
6VAC15-40-90. Content of personal inmate records.
Personal records shall be maintained on all inmates committed
or assigned to the facility. Inmate records shall be kept confidential,
securely maintained, and in good order to facilitate timely access by staff.
These Inmate records shall contain, but not be limited to:
1. Inmate data form;
2. Commitment form or court order, or both;
3. Records developed as a result of classification;
4. All disciplinary actions, or unusual incidents;
5. Work record and program involvement; and
6. Copies of inmates' property expenditure records and
receipts.; and
7. Victim notification when required, if applicable.
6VAC15-40-100. Daily logs.
The facility shall maintain a daily log(s) that records the
following information:
1. Inmate count and location, to be verified with a minimum
of one formal count per shift, observing flesh and movement;
2. Intake and release of inmates;
3. Entries and exits of physicians, attorneys, ministers, and
other nonfacility personnel; and
4. Any unusual incidents such as those that result in
physical harm to, or threaten the safety of, any person,
or the security of the facility.
6VAC15-40-110. Serious incident report reports.
A report setting forth in detail the pertinent facts of
deaths, discharging of firearms, erroneous releases, escapes, fires
requiring evacuation of inmates, hostage situations, and discharging
firearms recapture of escapees shall be reported to the local
facilities unit Local Facilities Supervisor of the Compliance and
Accreditation Unit, Department of Corrections (DOC), or designee.
The initial report should shall be made within 24 hours with
and a full report submitted at the end of the investigation.
6VAC15-40-120. Classification.
A. Written policy, procedure, and practice shall
ensure the following:
1. Classification of inmates as to level of housing assignment
and participation in correctional programs;
2. Separate living quarters for males, females, and juveniles;
3. Inmates are not segregated by race, color, creed or
national origin;
4. Security permitting, equal access to all programs and
activities, through separate scheduling, or other utilization of combined
programs under supervision; and
5. Any exception to the above to be is
documented in writing.
B. If the facility is using objective classification, then
the provisions of this subsection shall be followed:
1. Classification is conducted upon intake and prior to final
housing assignment.;
2. Classification determines the custody level and housing
assignment.;
3. Classification is conducted through prisoner inmate
interviews and the use of data collection instruments or forms, which are
maintained on file.;
4. Classification instruments enable objective evaluation
and/or scoring of:
a. Current offenses.
b. Prior convictions.
c. History of assaultive behavior.
d. Escape history.
e. Prior institutional adjustment.
f. Court status and pending charges.
g. Mental health or medical treatment history or needs.
h. Identified stability factors.
5. The classification system includes administrative review of
decisions and periodic reclassifications reclassification and
override procedures that are documented and maintained on file.
6. The classification system addresses both the potential
security risks posed and treatment needs of the inmate.
7. Male, female and juvenile inmates are housed separately
Separate living quarters for males, females, and juveniles.
8. Inmates are not segregated by race, color, creed, or
national origin.
6VAC15-40-130. Written grievance procedure.
A written grievance procedure shall be developed and made
available to all inmates with the following elements:
1. Grievance shall be responded to within nine work days of
receipt; Inmates shall be given a grievance form after exhausting all
prerequisites of the grievance procedure. Prerequisites shall be documented.
2. Written responses, including the reason for the
decision, shall be made to all grievances; Grievances shall be responded
to within nine work days of receipt.
3. A review shall be made by someone not directly involved
in the grievance; Written responses, including the reason for the
decision, shall be made to all grievances.
4. All inmates shall have access to the procedures with
guaranty against reprisal; and A review shall be made by a staff member
not directly involved in the grievance.
5. All inmates shall be afforded the opportunity to appeal
the decision. All inmates shall have access to the grievance procedure
with guaranty against reprisal.
6. All inmates shall be afforded the opportunity to appeal
the decision.
6VAC15-40-150. Inmate exercise.
Written policy, procedure, and practice shall provide
that all inmates have access to regular physical exercise. Facilities
with specified exercise areas shall provide inmate exercise a minimum of one
hour per week. Facilities without specified exercise areas shall provide
equipment or an area within the dayroom for inmates to exercise large muscle groups
on a daily basis. Shortage of staff shall not hinder inmate access to physical
exercise. [ Any exception Exceptions for inclement weather
or risk to security ] shall be documented in writing.
6VAC15-40-160. Written procedures for release program eligibility
criteria.
Written procedures outlining the eligibility criteria for
participation in a work release, educational release, electronic monitoring, or
rehabilitation release program shall be developed by each facility with a work
release, educational release, electronic monitoring, or rehabilitation release
program. Offenders Inmates shall meet the established eligibility
requirements prior to being released to participate in the program.
6VAC15-40-170. Written procedures for accountability of inmate
participants.
Written procedures shall ensure the accountability of inmate
participants and provide for supervision in the community. Such procedures
shall include, at a minimum:
1. Provisions for a daily inmate count;
2. Methods for determining and identifying inmates who are
authorized to leave the facility;
3. Provisions for a controlled sign-out and sign-in process;
and
4. Methods of verifying the inmate's location within the
community, both by telephone and random field visits Provisions that require
that a minimum of one staff-initiated telephone contact per calendar week and a
minimum of one random field visit per month [ or GPS monitoring ]
shall be [ conducted and documented used ]
to verify the inmate's location within the community.
6VAC15-40-180. Conditions for offender inmate
participation in a work release program.
Offender Inmate participation in a work release
program shall conform to the following specific conditions unless ordered
otherwise by an appropriate court.:
1. Participation by the inmate shall be on a voluntary basis.
2. The following conditions shall be met where the employer
has a federal contract.:
a. Representatives of local union central bodies or similar
labor union organizations shall have been consulted;
b. Employment shall not result in the displacement of employed
workers, or be applied in skills, crafts or trades in which there is a surplus
of available gainful labor in the locality, or impair existing contracts for
services; and
c. Rates of pay and other conditions of employment shall not
be less than those paid or provided for work of a similar nature in the
locality in which the work is being performed.
6VAC15-40-190. Conditions for offender inmate
participation in educational release or rehabilitative rehabilitation
release program programs.
Offender Inmate participation in an educational
release or rehabilitative rehabilitation release program shall
conform to the following specific conditions unless ordered otherwise by an
appropriate court.:
1. Participation by the inmate may be voluntary or court
ordered;
2. Meetings or classes shall be on a regularly scheduled
basis; and
3. Other conditions shall not be more restrictive on the offender
inmate than those required by other participants.
6VAC15-40-200. Furlough.
Participants Inmate participants in the a
work release, educational release, or rehabilitative rehabilitation
release programs program may be considered for furlough, as
prescribed by the facility policy, not to exceed three days in length at any
one time. Written procedures shall govern the granting of furloughs in
accordance with the provisions of §§ 53.1-37 and § 53.1-132
of the Code of Virginia.
6VAC15-40-210. Earnings.
Written procedures shall be developed to ensure the
accountability of all earnings received, disbursed, to whom and reason on
behalf of the inmate participant. Procedures shall be in accordance with
§ 53.1-131 of the Code of Virginia.
6VAC15-40-220. Removing inmate participants from
program.
Written procedures shall establish the criteria and process
for removing a participant inmate participants from the program.
1. Procedures shall include provisions for an impartial
hearing for the participant inmate participants.
2. Procedures shall include provisions for the appeal of
appealing the removal.
3. Documentation shall reflect that this information was
explained to all inmate participants when they were assigned upon
assignment to the program.
6VAC15-40-230. Written agreement with director.
Each facility having a work release, educational release,
or rehabilitation release program that includes state offenders as defined in §
53.1-20 of the Code of Virginia shall have a written agreement with the director,
or his designee.
6VAC15-40-240. Offender participation in compliance with
appropriate criteria and approval.
State offenders assigned to a work release, educational
release, or rehabilitation release program shall meet the Department
of Corrections work release appropriate criteria and set
forth by the Department of Corrections (DOC), be approved by the department's
DOC Central Classification Board Services and the department's
management review process pursuant to a written agreement as provided for in
accordance with § 53.1-131 of the Code of Virginia.
6VAC15-40-250. Participation in religious services or
counseling.
Written policy, procedure, and practice shall allow
inmates to participate voluntarily in available religious services or
counseling of their choice during scheduled hours within the facility. The
constitutional right to pursue any lawful and legitimate religious practice
shall be guaranteed to all inmates consistent with maintaining the order and
security of the facility.
6VAC15-40-280. Availability and administration of educational
services.
Written policy, procedure, and practice shall govern
the availability and administration of educational services for inmates,
including a written agreement with the local school authority for the provision
of special education. The facility administrator shall coordinate and
cooperate with local authorities for the provision of local
community services and resources utilized for this purpose, where they
are available.
6VAC15-40-290. Provisions of reading materials.
The facility shall provide reading materials that include
current periodicals (not more than one year old).
6VAC15-40-300. Permission of reading materials.
Reading materials, including newspapers, magazines and books,
shall be permitted in the jail facility unless the material poses
a threat to security or is not in compliance with other jail facility
restrictions or guidelines.
6VAC15-40-320. Licensed physician.
A licensed physician shall supervise the facility's medical
and health care services. Facilities that contract with private medical
facilities or vendors shall maintain a current copy of the agreement, unless
employed by the facility.
6VAC15-40-330. Restrictions on physician.
No restrictions shall be imposed on the physician by the
facility in the practice of medicine; however. However,
administrative and security regulations applicable to facility personnel shall
apply to medical personnel as well.
6VAC15-40-340. Licensing and Health care provider and
licensing, certification, and qualification of health care
personnel.
Each facility shall have a minimum of one licensed or
qualified health care provider who is accessible to inmates a minimum of one time
per week. Health care personnel shall meet appropriate and current
licensing or, certification, or qualification
requirements.
6VAC15-40-360. Twenty-four-hour emergency medical and mental
health care.
Written policy, procedure, and practice shall provide
24-hour emergency medical and mental health care availability.
6VAC15-40-370. Receiving and medical screening of inmates.
Written policy, procedure, and practice shall provide
that receiving and medical screening be performed on all inmates upon admission
to the facility. The medical screening shall:
1. Specify screening for current illnesses, health problems
and conditions, and past history of communicable diseases;
2. Specify screening for current symptoms regarding the
inmate's mental health, dental problems, allergies, present medications,
special dietary requirements, and symptoms of venereal disease;
3. Include inquiry into past and present drug and alcohol
abuse, mental health status, depression, suicidal tendencies, and skin
condition; and
4. For female inmates, include inquiry into possible pregnancy
or gynecological problems.; and
5. All inmates shall receive a tuberculosis (TB) skin test within
seven days of admission to the facility.
6VAC15-40-380. Inmate access to medical services.
Written policy, procedure, and practice shall be
developed whereby inmates can shall be informed, at the time of
admission to the facility, of the procedures for gaining access to medical
services.
6VAC15-40-390. Training and competency of staff.
All certified security staff shall be trained and
competent in rendering basic first aid and CPR by a recognized certifying
agency. All training shall be documented.
6VAC15-40-393. Universal precautions.
All regularly assigned facility staff who have
contact with inmates shall be trained, competent, and knowledgeable
in the use of universal precautions. All training shall be documented and
completed every 12 months.
6VAC15-40-395. Management of sharps.
Written policy, procedure, and practice shall govern the
control, storage, and use of sharps including at a minimum needles, scalpels, lancers
lancets, and dental tools.
6VAC15-40-400. Management of pharmaceuticals.
Written standard operating procedures for the
management of pharmaceuticals shall be established and approved by the facility's
physician or pharmacist medical authority or pharmacist, if applicable.
Written policy, procedure, and practice shall provide for the proper
management of pharmaceuticals, including receipt, storage, dispensing,
and distribution of drugs. Such These procedures shall be
reviewed every 12 months by the medical authority or pharmacist. Such
reviews shall be documented.
6VAC15-40-405. Automated External Defibrillator (AED).
There shall be a minimum of one AED unit available in the
facility. All security staff shall receive training in the operation of the
unit.
6VAC15-40-410. Inmate medical record records.
The medical record for each inmate shall be kept separate
from other facility records and shall include the following:
1. The completed screening form; and
2. All findings, diagnoses, treatment, dispositions,
prescriptions, and administration of medication.
6VAC15-40-420. Transfer of summaries of medical record.
Summaries of the medical record file shall be forwarded to
the facility to which the inmate is transferred. Medical record
summaries shall be transferred to the same facility to which the inmate is
being transferred. Required information shall include: vital signs, current
medications, current medical/dental problems, mental health screening, mental
health problems, TB skin test date and results, special inmate
needs/accommodations, pending medical appointments, medical dispositions,
overall comments, health care provider/personnel signature and date, and any
additional pertinent medical information such as lab work, x-rays, etc.
6VAC15-40-440. Medical care provided by personnel other than
physician.
Medical care performed provided by personnel
other than a physician shall be pursuant to a written protocol or order. Protocols
or orders shall be reviewed and signed by the supervising physician every 12
months.
6VAC15-40-450. Suicide prevention and intervention plan.
There shall be a written suicide prevention and intervention
plan. These procedures shall be reviewed and documented by an appropriate
medical or mental health authority prior to implementation and every three
years thereafter. These procedures shall be reviewed every 12 months by all
staff having contact with inmates. These Such reviews
shall be documented.
6VAC15-40-460. Applicability of medical treatment program
standards. (Repealed.)
The standards in this part apply only to those facilities
that have established a medical treatment program in which prisoners pay a
portion of the costs per § 53.1-133.01 of the Code of Virginia.
6VAC15-40-480. Set fees required.
Inmate payment for medical services shall be in accordance
with set fees based upon only a portion of the costs of these services up
to, but shall not exceed, those fees established by the Board of Corrections in
the Model Plan for Jail Prisoner Medical Treatment Programs per § 53.1-133.01
of the Code of Virginia.
6VAC15-40-510. Ability to pay.
Written policy, procedure, and practice shall provide
ensure that no inmate will be denied access to medically necessary
services based upon ability to pay.
6VAC15-40-520. Acknowledgment in writing.
Medical service services fee debits to inmate
accounts shall be acknowledged by the inmate in writing. The acknowledgement
shall be signed by a witness if the inmate refuses to sign.
6VAC15-40-545. Standards for inmate food service workers.
Written policy, procedure, and practice shall ensure that
a visual medical examination of each inmate assigned to food service occurs no
more than 30 days prior to assignment and quarterly thereafter. Each inmate
shall be given a TB skin test prior to food service assignment. Such tests
shall be documented. If an inmate tests positive for TB, that inmate shall not
be granted assignment to food service.
6VAC15-40-550. Food service program.
Written policy, procedure, and practice shall ensure a
food service program that meets the following:
1. The menu meets the dietary allowances as stated in the
Recommended Dietary Allowances (RDA), National Academy of Sciences;
2. There is at least a one-week advance menu preparation; and
3. Modifications in menus are based on inmates' medical or
reasonable religious requirements. Medical or dental diets shall be prescribed
by the facility's medical authority.;
4. RDA evaluation of facility menus shall be completed by
an independent registered dietitian or certified nutritionist every three
years; and
5. Additional evaluations shall be completed when a
substantive change in the menu or food service provider occurs.
6VAC15-40-560. Meals prepared, delivered, and served
under direct supervision of staff.
Written policy, procedure, and practice shall ensure
meals are prepared, delivered, and served under the direct supervision
of staff.
6VAC15-40-600. Correspondence privileges.
Written policy, procedure, and practice shall ensure
that all inmates, regardless of their jail status, shall be afforded the same
correspondence privileges; correspondence. Correspondence
privileges shall not be withdrawn as punishment.
6VAC15-40-610. Volume and content of inmate mail.
Written policy, procedure, and practice shall ensure
that there is no limit on the volume of letter mail an inmate may send
or receive, or on the length, language, content, or source of such letter
mail, except where there is clear and convincing evidence to justify such
limitations.
6VAC15-40-620. Postage allowance.
Written policy, procedure, and practice shall make
available, when requested by an indigent inmate (as defined by local jail
policy), a postage allowance of at least five first-class rate (one ounce)
letters per week, including legal mail, to indigent inmates. An
indigent inmate shall be defined as an inmate having less than the cost of five
first class stamps in his account for 15 days.
6VAC15-40-630. Outgoing and incoming letters mail.
Written policy, procedure, and practice shall ensure
that outgoing letters shall be mail is collected and sent daily
except Saturdays, Sundays, and holidays during normal United States
Postal Service (USPS) days of operation. Incoming letters mail
to inmates shall be delivered no later than 24 hours after arrival at the
facility (contingent upon normal USPS days of operation), or shall be
forwarded or returned to sender.
6VAC15-40-640. Incoming general General and legal
correspondence.
In accordance with United States Postal Regulations, all
incoming general correspondence will be opened, searched and may be read by
authorized staff where there is a reasonable suspicion that a particular item
of correspondence threatens the safety and security of the facility, the safety
of any person, or is being used for furtherance of illegal activities. All
incoming legal correspondence shall be opened and searched in the presence of
the inmate All general correspondence may be opened, examined, and
censored by authorized personnel as per the USPS Administrative Support Manual,
Section 274.96. If searched, all legal correspondence shall be opened in the
presence of the inmate.
6VAC15-40-650. Notice of seizures seizure of mail
contraband.
Written policy, procedure, and practice shall assure
that ensure notice of the seizures seizure of mailed
mail contraband be is given to the inmate and the
sender together with the written reason for the seizure in
writing. [ The sender shall be allowed the opportunity to appeal the
seizure to the facility administrator or a designee empowered to reverse
seizure. ] Unless it is needed for a criminal investigation or
prosecution, property that can legally be possessed outside the facility shall
be stored, returned to sender, if known, or destroyed.
6VAC15-40-660. Access and expense of to telephone
facilities.
Written policy, procedure, and practice shall ensure
inmates have reasonable access to telephone facilities, except where
safety and security considerations are documented.
6VAC15-40-670. Delivery of emergency messages to inmates.
Written policy, procedure, and practice shall ensure
that emergency messages to inmates are delivered promptly and recorded documented.
6VAC15-40-690. Approved items that visitors may bring
into facility.
The facility shall have a posted list of approved
items that visitors may bring into the facility. Items brought into the
facility by visitors for inmates shall be subject to inspections and approval.
6VAC15-40-720. Inmates confined to jail.
Written policy, procedure, and practice for those
inmates to be confined in the jail shall address the following:
1. Shower/search;
2. Issue Issuance of clean clothing/hygiene
items/linen;
3. Classification and housing assignment; and
4. Orientation.; and
5. Provision of mattresses.
6VAC15-40-730. Telephone calls during the booking process.
Written policy, procedure, and practice shall specify
that newly admitted inmates who are physically capable are permitted to
complete at least two local or long-distance telephone calls during the booking
process. Reasonable accommodations shall be made for non-English speaking
inmates, as well as hearing impaired and visually impaired inmates.
6VAC15-40-740. Requirements for clothing, linens ,
and towels.
Written policy, procedure, and practice shall provide
that a record is kept to show that clean linen linens and towels be
are supplied once a week, a clean change of clothing be is
provided twice a per week, and inmates shall be held
accountable for their use.
6VAC15-40-760. Bathing.
There shall be sufficient hot and cold water for bathing.
Each inmate shall be required allowed to bathe twice a week.
6VAC15-40-770. Provision of hygiene articles items.
The facility shall provide soap, a toothbrush, and toothpaste
or toothpowder to each inmate upon admission to the general population. Feminine
hygiene items (as defined by facility policy) shall be provided upon reasonable
request to each female inmate assigned to the general population.
Notwithstanding security considerations, shaving equipment, including a mirror,
and haircuts shall be made available, and the hygiene needs of all
inmates shall be met.
6VAC15-40-790. Inventory of cash and personal property.
A written itemized inventory of cash and personal property of
each inmate shall be made at the time of initial booking. A copy signed by both
staff and inmate shall be furnished to the inmate. Computerized
officer identification shall not substitute for a signature.
6VAC15-40-810. Return of inmate property and funds.
Inmate's Inmate property and funds shall be
returned to him upon his release or transfer and receipted for by
the inmate in writing, when practical.
6VAC15-40-820. Conduct.
Written policy, procedure, and practice shall govern
inmate discipline to and shall include:
1. Rules of conduct, including sanctions for rule violations;
2. Procedures and provisions for pre-hearing disciplinary
detention; and
3. Procedures for processing violators that may include plea
agreements that may waive the inmates' right to appeal.
6VAC15-40-830. Inmate handbook.
Upon initial housing assignment to a housing status
and following intake and reception processing, each inmate shall be
informed of, receive, and sign for:
1. A copy of the inmate rules of conduct, including sanctions;
and
2. The policy and procedures governing inmate discipline.
6VAC15-40-831. Fee for inmate keep.
If the facility has elected to establish a program to
charge a fee for inmate keep, such fee shall be up to, but shall not exceed,
the fee stated in the Board of Corrections Model Plan for Payment of Costs
Associated with Inmate Keep per § 53.1-131.3 of the Code of Virginia.
Written policy, procedure, and practice shall include, at a minimum, the
following:
1. Provisions requiring the facility to notify the inmate
of such fee in writing upon admission/orientation;
2. Payment and refund procedures;
3. Accounting procedures;
4. Provisions designating which, if any, inmates are
exempt;
5. If the release date and the date of arrival are within
24 hours, provisions to charge the inmate only the equivalent of one day’s fee;
and
6. Whenever an inmate has been charged the fee, provisions
specifying that the deduction shall be reflected on the inmate's account.
6VAC15-40-833. Discipline.
The minimum procedural requirements whenever Whenever
an inmate may be deprived of good time, or placed on disciplinary
segregation the minimum procedural requirements shall include:
1. The accused inmate shall be given written notice of the
charge and the factual basis for it at least 24 hours prior to hearing of the
charge;
2. The charge shall be heard in the inmate's presence by an
impartial officer or committee unless that right is waived in writing by the
inmate or through the inmate's behavior. The accused inmate may be excluded
during the testimony of any inmate whose testimony must be given in confidence.
The reasons for the inmate's absence or exclusion shall be documented;
3. The accused inmate shall be given an opportunity to have
the assistance of a staff member or fellow inmate in defending the charge;
4. The inmate shall be given a written statement by the fact
finders as to the evidence relied upon and the reasons for the disciplinary
action; and
5. The inmate shall be permitted to appeal any finding of
guilt to the facility administrator or designee.
6VAC15-40-835. Sanctions.
The minimum procedural requirements whenever Whenever
an inmate is punished, such as reprimand reprimands or loss of
privileges, the minimum procedural requirements shall include:
1. The accused inmate shall have an opportunity to explain or
deny the charge; and
2. The inmate shall have the opportunity to appeal any finding
of guilt to the facility administrator or designee.
6VAC15-40-840. Post to control security of jail.
The facility shall maintain a designated post, staffed 24
hours a day, that controls activities and flow of people in and out of the
secure area of the jail. Main facility control posts may be staffed by civilian
personnel who have been provided on-the-job training in facility security
procedures and, emergency plans, which and
communications. Such training shall be documented in writing with the same
frequency as required by standards for all facility employees. Civilian
personnel assigned to control posts shall not be assigned to other posts
requiring direct prisoner inmate contact and supervision.
6VAC15-40-870. Security and storage of security devices.
Written policy, procedure, and practice shall govern
the security, storage, and use of firearms, ammunition, chemical agents,
and related security devices that are stored in and assigned to the facility
to ensure that:
1. The facility shall provide secure storage for firearms,
ammunition, chemical agents, and related security equipment devices
accessible to authorized personnel only and located outside the security
perimeter or the inmate housing and activity areas.;
2. Personnel who carry firearms and ammunition are assigned
positions that are inaccessible to inmates (with the exception of emergencies).;
and
3. Personnel who discharge firearms or use chemical agents
other than for training purposes, submit written reports to the facility
administrator or designated subordinate designee no later than
the conclusion of the shift during which same are discharged or used.
6VAC15-40-880. Officer entry.
Written policy and procedures shall specify the conditions
under which an officer can enter a security cell or cell block during an
emergency situation.
6VAC15-40-910. Searches of facility and inmates.
Written policy, procedure, and practice provide for
searches of facilities and inmates to control contraband and provide for the
disposition of contraband. A schedule of searches shall be developed to
ensure all housing areas of the facility have been searched on a random, but at
least quarterly, basis. These procedures are not made available to inmates.
6VAC15-40-920. Policy for searches of contraband Contraband.
The facility shall post the have a policy
regarding searches for the control of contraband or otherwise make it.
The policy shall be available to staff and inmates via the inmate
handbook or orientation.
6VAC15-40-930. Key and door control.
Written policy, procedure, and practice shall govern
key and door control. Perimeter security door keys shall not be issued
to staff unless authorized as per the approved emergency plans.
6VAC15-40-940. Tools and culinary Culinary items.
Written policy, procedure, and practice shall govern
the control and use of tools and culinary items.
6VAC15-40-945. Tools.
Written policy, procedure, and practice shall govern the
control and use of tools.
6VAC15-40-950. Flammable, toxic, and caustic materials.
Written policy, procedure, and practice shall specify
the control and storage of cleaning equipment and use of all flammables, toxic,
and caustic materials. Inmate access shall be limited and closely
supervised.
6VAC15-40-960. Functions of duty post.
Written post orders or position descriptions shall clearly
describe the functions of each duty post in the facility and include copies in
the policy and procedures manual. Each duty post or position shall
maintain a clear description of the functions of that duty post or position. A
copy of the post orders shall be readily available.
6VAC15-40-970. Restriction of physical force.
Written policy, procedure, and practice shall restrict
the use of physical force to instances of justifiable self-defense, protection
of others, protection of property, orderly operation of the facility and
prevention of escapes. In no event is physical force justifiable as punishment.
A written report shall be prepared following all such incidents described above
and shall be submitted to the facility administrator, or designee,
for review and justification.
6VAC15-40-980. Restraint equipment.
Written policy, procedure and practice shall govern the use
of restraint equipment. A written protocol pertaining to the monitoring of
inmates in restraint equipment shall be established and approved by the medical
authority.
6VAC15-40-1000. Physical living conditions for disciplinary
detention and administrative segregation.
Written policy, procedure, and practice shall ensure
that, inmate behavior permitting, the disciplinary detention and administrative
segregation units provide physical living conditions that approximate those
offered in the general inmate population.
6VAC15-40-1010. Mental health inmates.
Written policy, procedure, and practice shall specify
the handling of mental health inmates to include an, including a
current agreement to utilize mental health services from either a private
contractor or the community services board.
6VAC15-40-1020. Record of activities in disciplinary detention
and administrative segregation units.
Written policy, procedure, and practice shall ensure
that a record is kept of scheduled activities in disciplinary detention and administrative
segregation units. Documented activities shall include the following:
admissions, visits, showers, exercise periods, meals, unusual behavior, mail,
and release.
6VAC15-40-1030. Assessment of inmate inmates in disciplinary
detention or administrative segregation or disciplinary detention.
Written policy, procedure, and practice shall require
that a documented assessment by medical personnel that shall include a personal
interview and medical evaluation of vital signs, is conducted when an inmate
remains in administrative segregation or disciplinary detention beyond
or administrative segregation for 15 days and every 15 days thereafter. If
an inmate refuses to be evaluated, such refusal shall be documented.
6VAC15-40-1040. Supervision of inmates Staff training.
The facility shall provide for 24-hour supervision of all
inmates by trained personnel. All inmate housing areas shall be inspected a
minimum of twice per hour at random intervals between inspections. All
inspections and unusual incidents shall be documented. No obstructions shall be
placed in the bars or windows that would prevent the ability of jail staff to
view inmates or the entire housing area.
6VAC15-40-1045. Supervision of inmates.
All inmate housing areas shall be inspected a minimum of
twice per hour at random intervals between inspections. All inspections and
unusual incidents shall be documented. No obstructions shall be placed in the
bars or windows that would prevent the ability of staff to view inmates or the
entire housing area.
6VAC15-40-1050. Institution Supervisory
inspection.
Supervisory staff shall inspect conduct a general,
daily inspection of the institution daily facility. Such
inspections shall be documented. Unusual findings shall be indicated in
writing documented and submitted to the senior supervisor or
designee on duty for review.
6VAC15-40-1080. Emergency situations plans and fire
drills.
There shall be fire prevention practices and written
emergency plans that outline duties of staff, procedures and evacuation routes.
Emergency plans shall include responses in the event of fire, chemical hazardous
material release, loss of utilities, natural disaster, taking of
hostages hostage situations, riots, disturbances, escape escapes,
bomb threats, and mass arrest. Emergency plans shall be reviewed every
12 months by all staff. These reviews shall be documented. Each facility
shall conduct and document quarterly fire drills.
6VAC15-40-1090. Release of inmate inmates.
Written policy, procedure, and practice shall require
that, prior to an inmate's release the release of an inmate,
positive identification is made of the releasee, authority for release is
verified, and a check for holds in other jurisdictions is completed.
Part VI
Jail Physical Plant
6VAC15-40-1100. Fire safety inspection.
The facility shall have a state or local fire safety
inspections conducted every 12 months. Localities that do not enforce the
Virginia Statewide Fire Prevention Code (VSFPC) shall have the
inspections performed by the Office of the State Fire Marshal State
Fire Marshal's Office. Written reports of the fire safety inspection shall
be on file with the facility administrator.
6VAC15-40-1111. Self-contained breathing apparatus.
If the facility is equipped with one or more
self-contained breathing apparatus, security staff shall be trained and
quarterly drills shall be conducted and documented in the use of this
equipment.
6VAC15-40-1150. Vermin and pest control.
The facility shall control vermin and pests and shall be
serviced at least quarterly by professional pest control personnel or
personnel certified by the Virginia Pesticide Control Board a licensed
pest control business or personnel certified by the Virginia Department of
Agriculture and Consumer Services.
6VAC15-40-1180. Special purpose area.
The facility shall have a special purpose area to provide for
the temporary detention and care of persons under the influence of alcohol or
narcotics or for persons, who are uncontrollably violent or
self-destructive and, or those requiring medical supervision.
6VAC15-40-1193. Separation of juveniles.
Juveniles shall be so housed as to be separated by a wall or
other barrier that would result in preventing visual contact and normal verbal
communication with adult prisoners inmates.
6VAC15-40-1195. Contact with juveniles.
The facility shall have one or more persons employees
on duty at all times responsible for auditory and visual contact with each
juvenile at least every 30 minutes. Contact shall be at least every 15 minutes
when juveniles exhibit self-destructive or violent behavior.
Part VIII
Lockups
6VAC15-40-1210. Responsibility.
The chief of police, town sergeant, or , in case of
a county's operating a lockup, the sheriff shall be responsible for seeing
that ensuring the lockup is operated in full conformity with this
chapter.
6VAC15-40-1220. Coverage.
When the lockup is occupied, at least one employee
shall be on duty at the lockup present at all times.
6VAC15-40-1240. Inspection requirements.
Weekly inspections shall be made and recorded conducted
and documented of bars, locks, and all security devices. Weekly
inspections shall be documented.
6VAC15-40-1250. Commitment and release.
A written record shall be maintained to include name,
date, and time of commitment and release of all detainees confined in the
lockup of all detainees confined in the lock-up. The written record
shall include name, date, and times of commitment and release.
6VAC15-40-1260. Property and funds.
Written policy, procedure, and practice shall govern
the inventory and control of detainee property and funds. The detainee
shall sign for all property and funds taken upon admission and returned to
him upon his release. If the detainee refuses to sign, this
shall be witnessed and documented.
6VAC15-40-1270. Telephone calls during the admissions
process.
Written policy, procedure, and practice shall specify
that newly admitted inmates detainees who are physically capable
are permitted the opportunity to complete at least two local or long
distance telephone calls during the admissions process. Reasonable
accommodations shall be made for non-English speaking detainees as well as
hearing and visually impaired detainees.
6VAC15-40-1280. Juvenile detention.
A lockup shall detain juveniles in strict compliance with
§ 16.1-249 of the Code of Virginia, and shall include continuous,
direct supervision.
6VAC15-40-1300. Protection of inmates detainees.
There shall be written Written policy for
shall ensure the protection of inmates detainees appearing
to be vulnerable to physical or sexual attack.
6VAC15-40-1310. Emergency medical and mental health care.
Written policy and procedures shall provide for
24-hour emergency medical and mental health care availability.
6VAC15-40-1315. Supervision of detainees.
All detainee housing areas shall be inspected a minimum of
twice per hour at random intervals between inspections. All inspections and
unusual incidents shall be documented. No obstructions shall be placed in the
bars or windows that would prevent the ability of staff to view detainees or
the entire housing area.
6VAC15-40-1320. Log of medical activities. (Repealed.)
A permanent log shall be maintained on all medical
findings, diagnoses, treatment, dispositions, prescriptions and administration
of medications, as disclosable by the Code of Virginia.
6VAC15-40-1330. Visiting Attorney visits.
Written policy and procedures shall ensure that: attorneys
are permitted to have confidential visits with detainees.
1. There are visiting opportunities limited only by
facility schedules, security, space and personnel constraints;
2. Visitors register upon entry into the facility;
3. Circumstances and methods under which visitors may be
searched are delineated;
4. Attorneys are permitted to have confidential visits with
their clients; and
5. Any exception to the above is documented in writing.
6VAC15-40-1340. Inmate Detainee control.
Written policies policy and procedures shall
ensure that punishment shall is not be utilized as a means
of control or discipline in lockups. Tear gas, chemical mace, or similar
devices Chemical agents shall not be used as punishment and may only
be used to control detainees where when there is an imminent
threat of physical injury or property damage.
6VAC15-40-1350. Incident Serious incident report.
A report setting forth in detail the pertinent facts of
deaths, discharging of firearms, erroneous releases, escapes, fires
requiring evacuation of detainees, hostage situations, and discharging
firearms recapture of escapees shall be reported to the local
facilities unit supervisor of the Compliance and Accreditation Unit,
Department of Corrections, or designee. The initial report should
shall be made by the end of the next work day with within 24
hours and a full report submitted at the end of the investigation.
6VAC15-40-1360. Inmate Detainee cleanliness.
A detainee shall have access to a wash basin and toilet
facility.
6VAC15-40-1380. Fire safety inspection.
The facility shall have a state or local fire safety
inspection conducted every 12 months. Localities that do not enforce the
Virginia Statewide Fire Prevention Code shall have the inspection performed by
the State Fire Marshal's Office. Written reports of the fire safety inspection
shall be on file with the facility administrator.
DOCUMENTS INCORPORATED BY REFERENCE (6VAC15-40)
[ USPS Administrative Support Manual, Section
274.96 - Mail Addressed to Prisoners, ASM 13, July 1999 (Updated with Postal
Bulletins through November 2009), United States Postal Service.
[ Model Plan for Jail Prisoner Medical Treatment
Programs, Virginia Department of Corrections.
Model Plan for Payment of Costs Associated with
Prisoner Keep, Virginia Department of Corrections.
USPS
Administrative Support Manual, Section 274.96 - Mail Addressed to Prisoners,
ASM 13, July 1999 (Updated with Postal Bulletins through December 1, 2011),
United States Postal Service.
Model
Plan for Jail Prisoner Medical Treatment Programs, revised May 2009, Virginia
Department of Corrections.
Model
Plan for Payment of Costs Associated with Prisoner Keep, revised May 2010,
Virginia Department of Corrections. ]
VA.R. Doc. No. R09-1738; Filed September 19, 2012, 3:51 p.m.
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TITLE 8. EDUCATION
STATE BOARD OF EDUCATION
Proposed Regulation
Titles of Regulations: 8VAC20-670. Regulations
Governing the Operation of Private Day Schools for Students with Disabilities (repealing 8VAC20-670-10 through 8VAC20-670-440).
8VAC20-671. Regulations Governing the Operation of Private
Schools for Students with Disabilities (adding 8VAC20-671-10 through 8VAC20-671-780).
Statutory Authority: §§ 22.1-16 and 22.1-321 of the
Code of Virginia.
Public Hearing Information:
November 29, 2012 - 11 a.m. - James Monroe Bldg., 101 North
14th Street, 22nd Floor Conference Room, Richmond, VA
Public Comment Deadline: December 21, 2012.
Agency Contact: Dr. Sandra Ruffin, Director, Federal
Program Monitoring, Department of Education, P.O. Box 2120, Richmond, VA 23218,
telephone (804) 225-2768, FAX (804) 225-2524, or email sandra.ruffin@doe.virginia.gov.
Basis: Chapter 873 of the 2008 Acts of Assembly (SB 472)
amended certain sections of the Code of Virginia, §§ 22.1-323.2, 37.2-408,
63.2-1737, and 66-24, concerning the interdepartmental regulation of children's
residential facilities, thus, changing the interdepartmental licensing model.
Section 22.1-321 of the Code of Virginia states: The Board of
Education shall make regulations not inconsistent with law for the management
and conduct of schools. The regulations may include standards for programs
offered by the schools.
Section 22.1-323 of the Code of Virginia states: No person
shall open, operate or conduct any school for students with disabilities in
this Commonwealth without a license to operate such school issued by the Board
of Education. A license shall be issued for a school if it is in compliance
with the regulations of the Board.
Purpose: Pursuant to legislation passed by the 2008
General Assembly, new regulations are needed to govern the operation of
educational programs and services in children's residential facilities and
group homes. The new regulations will provide provisions for the operation of
schools for students with disabilities and provide consistency in operation and
management of these private schools. The regulations are needed to protect the
health and safety of students served in private schools for students with
disabilities and to protect contractual rights of parents and other contracting
parties.
Substance: The new regulations provide provisions for
the operation of private schools for students with disabilities. The
regulations provide clarity to provisions for school administration, including
school and instructional leadership; a philosophy, goals, and objectives that
will serve as the basis for all policies and practices and student achievement
expectations; a program of instruction that promotes individual student
academic achievement in the essential academic disciplines (English,
mathematics, science, and history/social science); licensure for school personnel;
maintenance of student education records; and school facilities and safety.
The new regulations provide clarity to the provisions for
obtaining a license to operate and denial, revocation or suspension of a
license, and renewal of licenses; application fees; application commitments;
license restrictions; monitoring; and investigation of complaints and serious
incidents.
Issues: If the regulatory action poses no disadvantages
to the public or the Commonwealth, please indicate.
Promulgation of these regulations would be an advantage for
public schools that cannot serve a student because of his or her disability.
Private school options would be available if parents chose not to educate their
child in a public school.
Currently, there is no single set of regulations applicable to
the educational programs in private residential facilities as is currently
offered to day school providers. It is necessary to refer to several sets of
regulations. The proposed regulations outline all applicable requirements for both
private day schools and education programs in residential facilities, including
group homes.
The regulatory action poses no disadvantages to the public or
the Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. Chapter 670
(8VAC20-670) is titled Regulations Governing the Operation of Private Day
Schools for Students with Disabilities. As the name implies, the regulations
govern the operation of private day schools for students with disabilities, but
not private residential schools for students with disabilities. Currently there
is no single set of regulations applicable to the educational programs in
private residential facilities. It is necessary to refer to several sets of
regulations. The Board of Education proposes to repeal Chapter 670 and
promulgate Chapter 671 (8VAC20-671), Regulations Governing the Operation of
Private Schools for Students with Disabilities, to address all applicable
requirements for both private day schools and education programs in residential
facilities, including group homes. Other than location within the
administrative code, the only change in requirements from the current
regulations would be an increase in the amount of the required guaranty
instrument.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. Under the current regulations, all
applicants for a new license to operate shall provide a surety bond,
irrevocable letter of credit, or certificate of deposit and maintain the
guaranty instrument. The minimum guaranty for up to 50 students is $5,000. The
minimum increases incrementally by $5,000 for each additional 50 students or
portion thereof. If after three full years of operation the school shows that
it collects no advance tuition other than equal monthly installments or is paid
after services have been rendered, the school may become exempt from the
guaranty requirement.
Under the proposed regulations, the minimum guaranty becomes
$10,000 for up to 25 students and $5,000 for each additional 25 students. The
guaranty exemption language remains the same.
Of the 85 existing licensed day schools, 62 are exempt from the
guaranty requirement and 11 are not yet eligible for exemption.1 Some day schools
that could be exempt have requested to continue with the guaranty. Only 21 day
schools have private pay students; all other schools are reimbursed monthly
through the Comprehensive Services Act. Of these 21 day schools, we believe all
claim reimbursements after services are rendered.
An informal survey conducted by the Department of Education
(Department) of 10 of the existing 43 private residential facilities revealed
that each one would qualify for exemption because payments are made through
reimbursements after services are provided.
The Department estimates that schools who currently maintain
guaranty instruments pay approximately $100 to $150 annually. Under the
proposed regulations the cost would likely approximately double. The schools
have been notified of the proposed regulations and none are known to have
expressed objections.
Businesses and Entities Affected. The proposed amendments
affect the 132 public school divisions in the Commonwealth.
Localities Particularly Affected. The proposed amendments do
not disproportionately affect particular localities.
Projected Impact on Employment. The proposal amendments are
unlikely to significantly affect employment.
Effects on the Use and Value of Private Property. The proposed
amendments will not affect most of the private schools for students with
disabilities. For those for whom the guaranty instrument applies, costs will
likely increase by about $100 annually.
Small Businesses: Costs and Other Effects. The proposed
amendments will not affect most of the private schools for students with
disabilities. For those for whom the guaranty instrument applies, costs will
likely increase by about $100 annually. All of the private schools for students
with disabilities are likely small businesses.
Small Businesses: Alternative Method that Minimizes Adverse
Impact. There is no alternative method that would reduce the modest increase in
costs for small private schools for students with disabilities that would still
meet the policy goal of covering a more than marginal but still modest portion
of the potential lost tuition if schools were to close.
Real Estate Development Costs. The proposed amendments 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 DPB's best estimate of these economic
impacts.
_______________________
1 Source: Department of Education
Agency's Response to Economic Impact Analysis: The
agency concurs with the economic impact analysis completed by the Department of
Planning and Budget. The agency will continue to examine the economic and
administrative impact of the regulations as they progress through the APA
process.
Summary:
In response to Chapter 803 of the 2008 Acts of Assembly, the
proposed action repeals the Regulations Governing the Operation of Private Day
Schools for Students with Disabilities (8VAC20-670) and creates a new chapter,
Regulations Governing the Operation of Private Schools for Students with
Disabilities (8VAC20-671), to address all applicable requirements for both
private day schools and education programs in residential facilities, including
group homes. The only change in requirements is an increase in the amount of
the required guaranty instrument.
CHAPTER 671
REGULATIONS GOVERNING THE OPERATION OF PRIVATE SCHOOLS FOR STUDENTS WITH
DISABILITIES
8VAC20-671-10. Definitions.
The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Applicant" means the person, partnership,
corporation, or association that has completed and submitted an application to
the licensing agency for approval for a license to operate a school for
students with disabilities in Virginia.
"Autism" means a developmental disability
significantly affecting verbal and nonverbal communication and social
interaction, generally evident before age three, that adversely affects a
child's educational performance. Other characteristics often associated with
autism are engagement in repetitive activities and stereotyped movements,
resistance to environmental change or change in daily routines, and unusual
responses to sensory experiences. Autism does not apply if a child's
educational performance is adversely affected primarily because the child has
an emotional disturbance. A child who manifests the characteristics of autism
after age three could be identified as having autism if the criteria in this
definition are satisfied. (34 CFR 300.8(c) (1))
"Behavioral intervention plan" means a plan that
utilizes positive behavioral interventions and supports to address behaviors
that (i) interfere with the learning of students with disabilities or with the
learning of others or (ii) require disciplinary action.
"Behavioral support" means those principles and
methods employed by a school to help a student achieve positive behavior and to
address and correct a student's behavior in a constructive and safe manner in
accordance with written policies and procedures governing program expectations,
educational and treatment goals, safety and security, and the student's
Individualized Education Program (IEP) or Individual Instruction Plan (IIP).
"Board" means the State Board of Education,
which has general supervision of the public school system.
"Business day" means Monday through Friday, 12
months of the year, exclusive of federal and state holidays (unless holidays
are specifically included in the designation of business days).
"Calendar days" means consecutive days,
inclusive of Saturdays and Sundays. Whenever any period of time fixed by this
chapter shall expire on a Saturday, Sunday, or federal or state holiday, the
period of time for taking such action under this chapter shall be extended to
the next day that is not a Saturday, Sunday, or federal or state holiday.
"Complaint" means an accusation that a school
has violated one or more of the requirements of this chapter or other
applicable regulation.
"Consent" means:
1. The parent(s) or eligible student has been fully
informed of all information relevant to the activity for which consent is
sought in the parent's or eligible student's native language or other mode of
communication;
2. The parent(s) or eligible student understands and agrees
in writing to the carrying out of the activity for which consent is sought, and
the consent describes that activity and lists the records (if any) that will be
released and to whom; and
3. The parent(s) or eligible student understands that the
granting of consent is voluntary on the part of the parent(s) or eligible
student and may be revoked any time.
If a parent revokes consent, that revocation is not
retroactive (i.e., it does not negate an action that has occurred after the
consent was given and before the consent was revoked. Revocation ceases to be
relevant after the activity for which consent was obtained was completed.).
The meaning of the term "consent" is not the
same as the meaning of the term "agree" or "agreement."
"Agree" or "agreement" refers to an understanding between
the parent and the school about a particular matter and as required in this
chapter. There is no requirement that an agreement be in writing, unless stated
in this chapter. The school should document their agreement.
"Controlled substance" means a drug or other
substance identified under Schedules I, II, III, IV, or V in § 202(c) of
the Controlled Substances Act, 21 USC § 812(c). (34 CFR 300.530
(i)(1))
"Corrective action plan" means the school's plan
of action to correct a finding of noncompliance. The plan must identify
specific timelines and the person(s) responsible for implementation.
"Deaf-blindness" means simultaneous hearing and
visual impairments, the combination of which causes such severe communication
and other developmental and educational needs that they cannot be accommodated
in special education programs solely for children with deafness or children
with blindness. (34 CFR 300.8( c)(3))
"Deafness" means a hearing impairment that is so
severe that the child is impaired in processing linguistic information through
hearing, with or without amplification, that adversely affects the child's
educational performance. (34 CFR 300.8(c)(3))
"Department" means the Virginia Department of
Education.
"Developmental delay" means a disability
affecting a child age two by September 30 through six, inclusive: (34 CFR
300.8(b) and 34 CFR 300.306(b))
1. Who (i) is experiencing developmental delays, as
measured by appropriate diagnostic instruments and procedures, in one or more
of the following areas: physical development, cognitive development,
communication development, social or emotional development, or adaptive
development or (ii) has an established physical or mental condition that has a
high probability of resulting in developmental delay;
2. The delay is not primarily a result of cultural factors,
environmental or economic disadvantage, or limited English proficiency; and
3. The presence of one or more documented characteristics
of the delay has an adverse effect on educational performance and makes it
necessary for the student to have specially designed instruction to access and
make progress in the general educational activities for this age group.
"Disability category" means a listing of special
education eligibility classifications for students served including: autism,
deaf-blindness, developmental delay, emotional disability, hearing impairment
(including deafness), intellectual disability, multiple disabilities, orthopedic
impairment, other health impairment, specific learning disability, speech or
language impairment, traumatic brain injury, and visual impairment (including
blindness). § 22.1-213 of the Code of Virginia; 34 CFR 300.8(a)(1) and 34 CFR
300.8(a)(2)(i) and (ii)).
"Education records," also known as scholastic
records, mean those records that are directly related to a student and
maintained by the school or by a party acting for the school. Education records
may be recorded in any manner including, but not limited to, handwriting,
print, computer media, video or audiotape, film, microfilm, or microfiche.
Education records include discipline and medical records. Education records
include electronic exchanges between school personnel and parent(s) regarding matters
associated with the child's educational program.
"Eligible student" means a student who has
reached 18 years of age.
"Emotional disability" means a condition
exhibiting one or more of the following characteristics over a long period of
time and to a marked degree that adversely affects a child's educational
performance: (34 CFR 300.8(c)(4))
1. An inability to learn that cannot be explained by
intellectual, sensory, or health factors;
2. An inability to build or maintain satisfactory
interpersonal relationships with peers and teachers;
3. Inappropriate types of behavior or feelings under normal
circumstances;
4. A general pervasive mood of unhappiness or depression;
or
5. A tendency to develop physical symptoms or fears
associated with personal or school problems.
Emotional disability includes schizophrenia. The term does
not apply to children who are socially maladjusted, unless it is determined
that they have an emotional disability as defined by the Regulations Governing
Special Education Programs for Children with Disabilities in Virginia
(8VAC20-81).
"Guaranty instrument" means a surety bond,
irrevocable letter of credit, or certificate of deposit.
"Hearing impairment" means an impairment in
hearing in one or both ears, with or without amplification, whether permanent
or fluctuating, that adversely affects a child's educational performance but
that is not included under the definition of deafness in the Regulations
Governing Special Education Programs for Children with Disabilities
(8VAC20-81). (34 CFR 300.8(c)(5))
"Illegal drug" means a controlled substance, but
does not include a controlled substance that is legally possessed or used under
the supervision of a licensed health-care professional or that is legally
possessed or used under any other authority under the Controlled Substances
Act, 21 USC § 812(c), or under any other provision of federal law.
"Individualized Education Program" or
"IEP" means a written statement for a child with a disability that is
developed, reviewed, and revised at least annually in a team meeting in
accordance with the Regulations Governing Special Education for Children with
Disabilities in Virginia (8VAC20-81). The IEP specifies the individual
educational needs of the child and what special education and related services
are necessary to meet the child's educational needs. (34 CFR 300.22)
"Individualized Instruction Plan" or
"IIP" means a written statement (plan) for a child who is privately
placed or for a child who has not been determined eligible for special
education services that is developed, reviewed, and revised at least annually
in a team meeting that includes the parent. The IIP specifies the student's
academic level, course of study, individual educational needs, and the
educational services the child will receive.
"Intellectual disability" means the definition
formerly known as "mental retardation" and means significantly
subaverage general intellectual functioning, existing concurrently with
deficits in adaptive behavior and manifested during the developmental period
that adversely affects a child's educational performance. (34 CFR
300.8(c)(6))
"Licensee," also known as the sponsor, means the
person, partnership, corporation, or association to whom a license is issued
and who is legally responsible for compliance with this chapter.
"License to operate" or "license"
means a document issued by the State Superintendent of Public Instruction that
verifies approval to operate a school for students with disabilities and that
indicates the status of the school regarding compliance with applicable
regulations.
"Licensing agency" means the Virginia Department
of Education.
"Multiple disabilities" mean simultaneous
impairments (such as intellectual disability with blindness or intellectual
disability with orthopedic impairment), the combination of which causes such
severe educational needs that they cannot be accommodated in special education
programs solely for one of the impairments. The term does not include
deaf-blindness. (34 CFR 300.8(c)(7)
"Orthopedic impairment" means a severe
orthopedic impairment that adversely affects a child's educational performance.
The term includes impairments caused by congenital anomaly, impairments caused
by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from
other causes (e.g., cerebral palsy, amputations, and fractures or burns that
cause contractures). (34 CFR 300.8(c)(8))
"Other health impairment" means having limited
strength, vitality, or alertness, including a heightened alertness to
environmental stimuli, that results in limited alertness with respect to the
educational environment, that is due to chronic or acute health problems such
as asthma, attention deficit disorder or attention deficit hyperactivity
disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning,
leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome
that adversely affects a child's educational performance. (34 CFR 300.8(c)(9)
"Paraprofessional," also known as paraeducator,
means an appropriately trained employee who assists and is supervised by
qualified professional staff in meeting the requirements of this chapter.
"Parent" means (§ 22.1-213.1 of the Code of
Virginia):
1. A person who is:
a. A biological or adoptive parent of a child;
b. A foster parent, even if the biological or adoptive
parent's rights have not been terminated, but subject to subdivision 2 of this
definition;
c. A guardian generally authorized to act as the child's
parent or make educational decisions for the child (but not the Commonwealth if
the child is a ward of the Commonwealth);
d. An individual acting in the place of a biological or
adoptive parent (including grandparent, stepparent, or other relative) with
whom the child lives, or an individual who is legally responsible for the
child's welfare; or
e. If no party qualified under subdivisions 1 a through d
of this definition can be identified, or those parties are unwilling to act as
parent, a surrogate parent who has been appointed in accordance with
8VAC20-81-80.
2. The biological or adoptive parent, when attempting to
act as the parent pursuant to this section and when more than one party is
qualified under subdivision 1 of this definition to act as a parent, must be
presumed to be the parent for purposes of this section unless the biological or
adoptive parent has had his residual parental rights and responsibilities
terminated pursuant to § 16.1-277.01,
16.1-277.02,
or 16.1-283
of the Code of Virginia or a comparable law in another state.
3. The local school division shall provide written notice
to the biological or adoptive parents at their last known address that a foster
parent is acting as the parent pursuant to this section, and the local school
division is entitled to rely upon the actions of the foster parent pursuant to
this section until such time that the biological or adoptive parent attempts to
act as the parent.
4. If a judicial decree or order identifies a specific
person or persons among subdivisions 1 a through e of this definition to act as
the "parent" of a child or to make educational decisions on behalf of
a child, then such person or persons shall be determined to be the
"parent" for purposes of the special education identification,
evaluation, and placement of a child and the provision of a free appropriate
public education to a child.
"Personally identifiable information" means
information that includes, but is not limited to:
1. The student's name, the child's parent, or other family
member;
2. The address of the child;
3. A personal identifier, such as the child's social
security number or student number; or
4. A list of personal characteristics that would make the
student's identity easily traceable.
"Physical restraint" means the use of approved
physical interventions or "hands-on" holds by trained staff to
prevent a student from moving his body to engage in a behavior that places him
or others at risk of physical harm. Physical restraint does not include:
1. Briefly holding a student in order to calm or comfort
the student; or
2. Holding a student's hand or arm to escort the student
safely from one area to another. (Board of Education's Guidelines for the
Development of Policies and Procedures for Managing Student Behaviors in
Emergency Situations)
"Privately placed student" means a student
placed in a private school for students with disabilities by his parent(s).
"Publicly placed student" means a student placed
in a private school for students with disabilities by a local school division
or Comprehensive Services Act team or by court order.
"Qualified personnel" or "qualified
staff" means personnel who have met Virginia Department of Education
approved or recognized certification, licensing, registration, or other
comparable requirements that apply to the area in which the individual is
providing special education or related services. In addition, the professional
must meet other state agency requirements for such professional service and
Virginia licensure requirements as designated by Virginia law or regulations.
"Related services" means transportation and such
developmental, corrective, and other supportive services as are required to
assist a child with a disability to benefit from special education and includes
speech-language pathology and audiology services; interpreting services;
psychological services; physical and occupational therapy; recreation, including
therapeutic recreation; early identification and assessment of disabilities in
children; counseling services, including rehabilitation counseling; orientation
and mobility services and medical services for diagnostic or evaluation
purposes. Related services also includes school health services and school
nurse services; social work services in schools; and parent counseling and
training. Related services do not include a medical device that is surgically
implanted including cochlear implants, the optimization of device functioning
(e.g., mapping), maintenance of the device, or the replacement of that device.
The list of related services is not exhaustive and may include other
developmental, corrective, or supportive services (such as artistic and
cultural programs, and art, music and dance therapy, if they are required to
assist a child with a disability to benefit from special education.
(§ 22.2-213 of the Code of Virginia; 34 CFR 300.34(a) and (b))
"School" means a school for students with
disabilities that has a license to operate issued by the Superintendent of
Public Instruction.
"School for students with disabilities,"
"school," or "schools" means a privately owned and operated
preschool, school or educational organization, no matter how titled, maintained,
or conducting classes for the purpose of offering instruction, for a
consideration, profit or tuition, to persons determined to have autism,
deaf-blindness, developmental delay, a hearing impairment including deafness,
multiple disabilities, orthopedic impairment, other health impairment, an
emotional disturbance, a severe disability, a specific learning disability, a
speech or language impairment, a traumatic brain injury, or a visual impairment
including blindness. (§ 22.1-319 of the Code of Virginia)
"Seclusion" means the confinement of a student
alone in a room from which the student is physically prevented from leaving.
(Board of Education's Guidelines for the Development of Policies and Procedures
for Managing Student Behaviors in Emergency Situations)
"Section 504" means that section of the
Rehabilitation Act of 1973 (29 USC § 701 et seq.), as amended, which is
designed to eliminate discrimination on the basis of disability in any program
or activity receiving federal financial assistance.
"Serious incident" means:
1. Any accident or injury requiring medical attention by a
licensed physician;
2. Any illness that requires hospitalization;
3. Any runaway; or
4. Any event that affects, or potentially may affect, the
health, safety, or welfare of any student being served at the school or
school-related activity.
"Serious injury" means any injury resulting in
bodily hurt, damage, harm, or loss that requires medical attention by a
licensed physician.
"Special education" means specially designed
instruction to meet the unique needs of a child with a disability. There is no
cost to the parent(s) for special education for a child who is placed in a
school for students with disabilities by a school division, the Department of
Social Services, or court order. (§ 22.1-213 of the Code of Virginia; 34
CFR 300.39)
The term includes:
1. Speech-language pathology services or any other related
service, if the service is considered special education rather than a related
service under state standards;
2. Vocational education; and
3. Travel training.
"Specially designed instruction" means adapting,
as appropriate to the needs of an eligible child under this chapter, the
content, methodology, or delivery of instruction to: (34 CFR 300.39(b)(3))
1. Address the unique needs of the child that result from
the child's disability; and
2. Ensure access of the child to the general curriculum, so
that the child can meet the educational standards that apply to all children
within the jurisdiction of the local educational agency.
"Specific learning disability" means a disorder
in one or more of the basic psychological processes involved in understanding
or in using language, spoken or written, that may manifest itself in the
imperfect ability to listen, think, speak, read, write, spell, or do
mathematical calculations, including conditions such as perceptual
disabilities, brain injury, minimal brain dysfunction, dyslexia, and
developmental aphasia. Specific learning disability does not include learning
problems that are primarily the result of (i) visual, hearing, or motor
disabilities; (ii) intellectual disabilities; (iii) emotional disabilities; or
(iv) environmental, cultural, or economic disadvantage. (§ 22.1-213 of the
Code of Virginia; 34 CFR 300.8(c)(10))
Dyslexia is distinguished from other learning disabilities
due to its weakness occurring at the phonological level. Dyslexia is a specific
learning disability that is neurobiological in origin. It is characterized by
difficulties with accurate or fluent word recognition and by poor spelling and
decoding abilities. These difficulties typically result from a deficit in the
phonological component of language that is often unexpected in relation to
other cognitive abilities and the provision of effective classroom instruction.
Secondary consequences may include problems in reading comprehension and
reduced reading experience that can impede growth of vocabulary and background
knowledge.
"Speech or language impairment" means a
communication disorder, such as stuttering, impaired articulation, expressive
or receptive language impairment, or voice impairment, that adversely affects a
child's educational performance. (34 CFR 300.8(c)(11))
"Standard precautions" mean precautions designed
to prevent transmission of HIV, hepatitis B virus (HBV), and other bloodborne
pathogens when providing first aid or health care. Standard cautions apply to
blood; all body fluids, secretions, and excretions except sweat, regardless of
whether or not they contain blood; nonintact skin; and mucous membranes. The
precautions are designed to reduce the risk of transmission of microorganisms
from both recognized and unrecognized sources of infection when providing first
aid or health care. Standard precautions include protective barriers such as
gloves, gowns, aprons, masks, or protective eye wear that can reduce the risk
of exposure with materials that may contain infectious microorganisms.
"Standards of Learning" or "SOL" means
Virginia's rigorous academic standards established by the Board of Education.
"Strip search" means a visual inspection of the
body of a student when that student's outer clothing or total clothing is
removed, and there is an inspection of the removed clothing. Strip
searches are conducted for the detection of contraband.
"Superintendent" means the State Superintendent
of Public Instruction.
"Teacher of record" means the teacher who is
responsible for the delivery of instruction. The teacher of record shall hold a
license issued by the State Board of Education.
"Time-out" means assisting a student to regain
control by removing the student from his immediate environment to a different
open location until the student is calm or the problem behavior has subsided.
(Board of Education's Guidelines for the Development of Policies and Procedures
for Managing Student Behaviors in Emergency Situations)
"Traumatic brain injury" means an acquired
injury to the brain caused by an external physical force, resulting in total or
partial functional disability or psychosocial impairment, or both, that
adversely affects a child's educational performance. Traumatic brain injury
applies to open or closed head injuries resulting in impairments in one or more
areas, such as cognition; language; memory; attention; reasoning; abstract
thinking; judgment; problem-solving; sensory, perceptual, and motor abilities;
psychosocial behavior; physical functions; information processing; and speech.
Traumatic brain injury does not apply to brain injuries that are congenital or
degenerative or to brain injuries induced by birth trauma. (34 CFR
300.8(c)(12))
"Visual impairment including blindness" means an
impairment in vision that, even with correction, adversely affects a child's
educational performance. The term includes both partial sight and blindness.
(34 CFR 300.8(c)(13))
"Volunteer" means any individual who of his own
free will and without compensation provides goods or services to the school.
"Virtual learning" means the delivery of
instruction through emerging technologies such as satellite, streaming video, or
the Internet.
8VAC20-671-20. Exemptions.
This chapter shall not apply to any of the following at
§ 22.1-320 of the Code of Virginia:
1. Any school that is licensed or approved pursuant to
other statutes of the Commonwealth;
2. Any public or private high school accredited or
recognized by the Board of Education that has offered or may offer programs for
students with disabilities covered in this chapter, if any tuition, fees, and
charges made by the school are collected in accordance with the regulations prescribed
by the governing body of such school;
3. Tutorial instruction given in a private home or
elsewhere as supplemental to regular classes for students enrolled in any
public or private school or in preparation of an individual for an examination
for professional practice or higher education;
4. A program through which persons with disabilities are
provided employment and training primarily in simple skills in a sheltered or
protective environment;
5. Any privately owned or operated preschool, or elementary,
middle, or secondary school that operates primarily to provide educational
services to students without disabilities, although the school may serve
children with disabilities in a regular academic setting; or
6. Any private school for students with disabilities that
operates in or on the premises of an elementary, middle, or secondary public
school in a regular school setting during a typical school day.
8VAC20-671-30. Licenses generally.
A. The Board of Education has established general requirements
for a license to operate a private school for students with disabilities and
has authorized the Superintendent of Public Instruction to issue licenses. The
following applies in accordance with § 22.1-323 of the Code of Virginia:
1. No person shall open, operate, or conduct any school for
students with disabilities in this Commonwealth without a license to operate.
2. A license to operate shall be restricted to the
disability categories specifically indicated on the license, which may include
one or more of the disability categories in the definition of a school for
students with disabilities in this chapter.
3. A license to operate may be issued for a period of up to
three successive years.
4. The term of a school's license may be reduced at any
time during the licensure period based on a change in the school's compliance
with these requirements.
5. A license to operate shall be prominently displayed on
the premises of the school in a place open for inspection by any interested
person during the hours of operation.
6. A license to operate shall be restricted to the approved
conditions as printed on the license. Such conditions include, but are not
limited to, the maximum number of students that can be enrolled, the disability
category or categories of students that can be served, and the age range and
gender.
B. An individual seeking to operate a school for students
with disabilities shall file an application with the licensing agency.
8VAC20-671-40. Advertising.
The following provisions consistent with § 22.1-323
of the Code of Virginia regarding advertisement of a school shall apply:
1. No school may use the seal of the Commonwealth in any
advertisement, publication, or document, including diplomas, certificates, and
other awards.
2. The advertisement of a school shall be in a form and
manner that is free from misrepresentation, deception, or fraud and shall
conform to the following:
a. The complete school name as listed on the license to
operate shall be used in all publicity, publications, or promotions or for
marketing purposes.
b. Advertisement shall not expressly or by implication
indicate by any means that the license to operate represents an endorsement by
the Virginia Department of Education or the Board of Education.
c. No fraudulent or misleading statement shall be in print
or nonprint about the school's admission policy, tuition and fees; programs and
services; size and location; or any other information concerning the school.
d. Endorsements, commendations, or recommendations by
students, individuals, manufacturers, business establishments, or organizations
are prohibited except with their written consent and without any offer of
financial compensation.
e. The accrediting agency shall be named, if accreditation
is used, as part of a school's promotional materials.
3. Prospective applicants may advertise projected services
and staff positions while in the application process but shall not misrepresent
licensure status and shall not enroll students prior to receiving a license to
operate from the Superintendent of Public Instruction.
8VAC20-671-50. Types of licenses.
The following shall apply consistent with
§ 22.1-323.1 of the Code of Virginia:
1. A conditional license shall be issued to a new school
that demonstrates compliance with administrative and policy requirements but
has not demonstrated compliance with all requirements of this chapter.
a. A conditional license may be renewed.
b. The issuance of a conditional license and any renewals
thereof shall be for no longer a period than six successive months.
2. A provisional license may be issued to a school that has
demonstrated an inability to maintain compliance with this chapter or other
applicable regulations.
a. A provisional license may be issued at any time.
b. A provisional license may be renewed.
c. The issuance of a provisional license and any renewal
thereof shall be for no longer a period than six successive months.
3. An annual license may be issued under the following
conditions and may be extended for a period not to exceed six successive
months:
a. A school applies for renewal while holding a conditional
or provisional license substantially meets the requirements of this chapter;
b. The licensing agency determines that a major violation
has occurred that impacts the overall operation of the school; or
c. The school makes significant changes in its operation.
4. A triennial license shall be issued when a school:
a. Applies for renewal while holding an annual or triennial
license; and
b. Substantially meets or exceeds the requirements of this
chapter and other applicable regulations.
5. The term of a school's license may be modified at any
time during the licensure period based on a change in the school's compliance
with this chapter and other applicable regulations.
8VAC20-671-60. Change in condition.
A. A condition of a license may be modified during the
term of the license with respect to: capacity of the school or classrooms;
disability category or categories of students served; age range of students;
change in location; change in services; change in ownership; merger of schools;
and enrollment of day student(s) in a residential setting.
B. A change in a condition shall not be implemented prior
to approval by the licensing agency. The licensing agency shall respond to the
request and provide approval or denial in 10 calendar days following the date
the request was received.
C. A change in a condition may not be approved during a
provisional or conditional licensure period.
8VAC20-671-70. License to operate is nontransferable.
A change of ownership occurs when control of a school
changes from one owner to another. If there is a change in ownership, the
following shall apply:
1. The licensee shall notify the licensing agency at least
30 calendar days prior to the proposed change.
2. The new owner shall submit an initial application for a
license to operate to the licensing agency within 30 calendar days following
the effective date of the change in ownership.
3. The school may operate under the existing license for 60
calendar days from the effective date of the change in ownership at which time
a conditional license may be issued.
8VAC20-671-80. Penalty for noncompliance in obtaining a
license to operate.
Failure to obtain a license to operate a school for students
with disabilities shall result in the following penalties allowed in § 22.1-331
of the Code of Virginia:
1. Any person who opens, operates, or conducts a school
without first obtaining a license to operate may be found guilty of a Class 2
misdemeanor.
2. Each day the school remains open without a license to
operate, the owner or board of directors shall incur a separate offense.
3. The licensing agency shall refer to the Office of the
Attorney General any alleged or known violation of this chapter. The Office of
the Attorney General shall refer the matter to the Commonwealth's attorney of
proper jurisdiction.
8VAC20-671-90. Directory of private schools for students
with disabilities.
The licensing agency shall maintain a directory of schools
holding valid licenses to operate that shall be available to the public
(§ 22.1-332 of the Code of Virginia). The directory shall identify other
applicable state licensing agencies over the school and may include additional
information to inform the public about the school's operation.
8VAC20-671-100. Initial application.
To obtain a license to operate a school for students with
disabilities, an application shall be filed with the Department of Education. A
completed initial application shall include the following:
1. Complete name and physical address of the school;
2. Name and address of owners, controlling officials, and
managing employees;
3. Evidence that the applicant has conducted a needs
assessment;
4. Evidence of the applicant's compliance with the
applicable regulations of the State Corporation Commission when the school is
owned by a partnership or corporation;
5. Narrative description of building and scale drawing or
copy of all floor plans including room use and dimensions;
6. Certificate of occupancy with educational use group or
other report from the appropriate government agency or agencies indicating that
the location meets applicable zoning, building code, use permit, business
license, fire safety, and sanitation requirements;
7. Copy of the deed, lease, or other legal instrument
authorizing the school to occupy such location;
8. Proposed working budget for the year showing projected
revenue and expenses for the first year of operation and a balance sheet
showing assets and liabilities; a three-year financial plan; and documentation
of sufficient operating capital or line of credit to carry the school through
the first year of operation;
9. Original signed surety bond, irrevocable letter of
credit, or certificate of deposit to protect the contractual rights of parents
and students;
10. Schedule of tuition and other fees and the procedure
for collecting and refunding tuition;
11. Copies of all proposed advertisements;
12. Description of the education program to include
disability category or categories to be served, enrollment capacity, age range,
gender, and course offerings;
13. Listing of instructional resources and equipment;
14. Description of related services;
15. School's policy manual;
16. Proposed staffing and organizational chart;
17. Job description for each position;
18. Parent/student handbook;
19. Statement of transportation services if the school
provides transportation for students;
20. Statement regarding provision of student lunches; and
21. Any other information necessary to complete the
application process.
8VAC20-671-110. Applicant commitments.
Each application for a license to operate a school for
students with disabilities shall contain the following commitments:
1. To conduct the school in accordance with all applicable
regulations of the board;
2. To permit the board or department to inspect the school
or classes being conducted therein at any time and to make available to the
board or department, when requested to do so, all information pertaining to the
activities of the school required for the administration of this chapter,
including its financial condition;
3. To advertise the school at all times in a form and
manner that is free from misrepresentation, deception, or fraud and to conform
to provisions of the board governing such advertising;
4. To ensure that all representations made by an agent of
the school are free from misrepresentation, deception, or fraud and to conform
to provisions of the board governing such advertising;
5. To display the current license to operate prominently
where it may be inspected by students, visitors, and the board or department;
and
6. To maintain all premises, equipment, and facilities of
the school in an adequate, safe, and sanitary condition.
8VAC20-671-120. Assessment of application.
A. The licensing agency shall evaluate each application
within 60 calendar days from the date received and advise the applicant in
writing of approval or deficiencies.
B. The applicant shall correct all deficiencies within 30
calendar days from the date of the written assessment of the application. The
licensing agency may grant an extension for a reasonable period of time.
C. Any application that has not been approved within the
allotted time period shall be denied and returned to the applicant. The applicant
may reapply for a license 90 calendar days following the date of the returned
application.
D. The licensing agency may require the applicant to
appear before a review committee for final approval of the application.
8VAC20-671-130. On-site inspection.
Before a license can be issued, the licensing agency shall
conduct an on-site inspection or equivalent virtual inspection of the school
building and grounds to determine its suitability for the operation of a school
for students with disabilities.
8VAC20-671-140. Renewal of licenses.
A. Sixty calendar days prior to the expiration of a
license to operate, the licensee shall submit to the licensing agency
notification of intent for continued operation of the school.
B. The license of each school that continues to operate as
such shall be renewed on or before the anniversary date set by the licensing
agency.
C. Each license that has not been renewed in accordance
with this chapter shall expire and a new license shall be obtained from the
board before such school may continue to operate. A new application must be
submitted to the licensing agency.
8VAC20-671-150. Monitoring.
The licensing agency shall:
1. Make at least one announced or unannounced visit during
the effective dates of the license to operate for the purpose of
monitoring the school's compliance with this chapter;
2. Notify relevant local governments and placing and
funding agencies of health and safety or human rights violations.
3. Cooperate with other licensing agencies, specifically,
the Department of Social Services and the Department of Behavioral Health and
Developmental Services, in fulfilling licensing responsibilities. The licensing
agency shall notify relevant local governments and placing and funding agencies
when a school's licensure status is lowered to provisional.
8VAC20-671-160. Complaint resolution procedures.
A. A complaint may be filed with the licensing agency by
any individual or organization and shall address an action that occurred not
more than one year prior to the date the complaint is received by the licensing
agency.
B. A complaint must provide a statement of some
disagreement with procedures or process regarding any matter relative to this
chapter or other applicable regulations.
C. Upon receipt of a complaint, the licensing agency shall
initiate an investigation to determine whether the school is in compliance with
applicable laws and regulations in accordance with the following procedures:
1. Within seven business days of the receipt of a
complaint, the licensing agency shall provide written notification to each
complainant and the private school.
a. The notification sent to the school shall include:
(1) A copy of the complaint;
(2) An offer of technical assistance in resolving the
complaint;
(3) A statement that the school has the opportunity to
propose a resolution of the complaint;
(4) A request that the school submit within 10 business
days of receipt of the letter of notification either:
(a) Written documentation that the complaint has been
resolved; or
(b) If the complaint was not resolved, a written response
including all requested documentation.
2. The licensing agency shall review the complaint and the
school's response and determine the need for any further investigation or
corrections.
3. The licensing agency shall notify appropriate agencies
of serious violations.
4. During the course of the investigation, the licensing
agency shall:
a. Conduct an investigation of the complaint that shall
include a complete review of all relevant documentation and may include interviews
with appropriate individuals and an independent on-site investigation, if
necessary.
b. Consider all facts and issues presented and the
applicable requirements specified in this chapter or other applicable
regulations.
c. Make a determination of compliance or noncompliance on
each issue in the complaint based upon the facts and applicable regulations and
notify the parties in writing of the findings and the bases for such findings.
The licensing agency has 60 calendar days after the written complaint is
received to carry out the investigation and to resolve the complaint. An
extension of the 60 calendar day time limit may occur if exceptional
circumstances exist with respect to a particular complaint.
d. Ensure that the final decision is effectively
implemented, if needed, through technical assistance activities, negotiations,
and corrective actions to achieve compliance.
e. Notify the parties in writing of any needed corrective
actions and the specific steps that shall be taken by the school to bring it
into compliance with applicable timelines.
E. Parties to the complaint procedures shall have the
right to appeal the final decision to the licensing agency within 30 calendar
days of the issuance of the decision.
F. When the school develops a plan of action to correct
the violations, such plan shall include timelines to correct violations not to
exceed 30 business days unless circumstances warrant otherwise. The plan of
action shall include a description of all changes contemplated and shall be subject
to approval of the licensing agency.
G. If the school does not come into compliance within the
period of time set forth in the notification, the licensing agency may reduce
or revoke the school's license to operate.
8VAC20-671-170. Denial, revocation, or suspension of
license.
A. The superintendent may refuse to issue or renew a
license to operate or may revoke or suspend a license issued to any school
pursuant to this chapter for the following causes (§ 22.1-329 of the Code
of Virginia):
1. Violating any provision of this chapter or regulation of
the board;
2. Furnishing false, misleading, or incomplete information
to the board or department or failure to furnish information requested by the
board or department;
3. Violating any commitment made in an application for a
license;
4. Presenting either by the school or by any agent of the
school to prospective students information relating to the school which is
false, misleading, or fraudulent;
5. Failing to provide or maintain premises or equipment in
a safe and sanitary condition as required by law;
6. Making any false promises through agents or by
advertising or otherwise of a character likely to influence, persuade, or
induce enrollments;
7. Paying a commission or valuable consideration to any
person for any act of service performed in willful violation of this chapter;
8. Failing to maintain financial resources adequate for the
satisfactory conduct of courses of instruction offered or to retain a
sufficient or qualified instructional staff;
9. Demonstrating unworthiness or incompetency to conduct
the school in a manner calculated to safeguard the interests of the public;
10. Failing within a reasonable time to provide information
requested by the board or department as a result of a formal or informal
complaint to or by the board or department that would indicate a violation of
these requirements;
11. Attempting to use or employ any enrolled students in
any commercial activity whereby the school receives any compensation whatsoever
without reasonable remuneration to the student, except to the extent that
employment of students in such activities is necessary or essential to their
training and is permitted and authorized by the board; or
12. Engaging in or authorizing any other conduct, whether
of the same or of a different character from that specified in this section,
that constitutes fraudulent or dishonest dealings.
8VAC20-671-180. Summary or final order of suspension.
The provisions of the Administrative Process Act
(§ 2.2-4000 et seq. of the Code of Virginia) shall be applicable to
proceedings under this section. In compliance with § 22.1-329 of the Code
of Virginia, the following shall apply:
1. In addition to the authority for other disciplinary
actions provided in this chapter, the Superintendent of Public Instruction may
issue a summary order of suspension of a license of a residential or day school
for students with disabilities in conjunction with any proceeding for
revocation, denial, or other action when conditions or practices exist in the
school that pose an immediate and substantial threat to the health, safety, and
welfare of the students who are residing or attending the school and the
Superintendent of Public Instruction believes the operation of the school
should be suspended during the pendency of such proceeding.
2. The summary order of suspension shall take effect upon
its issuance and shall be served on the licensee or its designee as soon as
practicable thereafter by personal service and certified mail, return receipt
requested, to the address of record of the licensee. The order shall state the
time, date, and location of a hearing to determine whether the suspension is
appropriate. Such hearing shall be held no later than three business days after
the issuance of the summary order of suspension and shall be convened by the
Superintendent of Public Instruction or designee.
3. After such hearing, the Superintendent of Public
Instruction may issue a final order of summary suspension or may find that such
summary suspension is not warranted by the facts and circumstances presented. A
final order of summary suspension shall include notice that the licensee may
appeal the Superintendent of Public Instruction's decision to the appropriate
circuit court no later than 10 days following issuance of the order. The sole
issue before the court shall be whether the Superintendent of Public
Instruction had reasonable grounds to require the licensee to cease operations
during the pendency of the concurrent revocation, denial, or other proceeding.
The concurrent revocation, denial, or other proceeding shall not be affected by
the outcome of any hearing on the appropriateness of the summary suspension.
4. The willful and material failure to comply with the
summary order of suspension or final order of summary suspension shall be
punishable as a Class 2 misdemeanor. The Superintendent of Public Instruction
may require the cooperation of any other agency or subdivision of the
Commonwealth in the relocation of students who are residents of a home or
facility whose license has been summarily suspended pursuant to this section
and in any other actions necessary to reduce the risk of further harm to
students.
8VAC20-671-190. Timeline for correction of unsatisfactory
conditions.
In compliance with § 22.1-330 of the Code of
Virginia, the board or department:
1. May, upon its own motion, and shall, upon the verified
complaint in writing of any person setting forth facts that, if proved, would
constitute grounds for refusal, suspension, or revocation of a license,
investigate the actions of any applicant for or any person or persons holding
or claiming to hold a license to operate.
2. Before refusing to renew, revoking, or suspending any
license, may grant such period of time as it deems reasonable to correct any
unsatisfactory condition.
8VAC20-671-200. Governing body.
A. Each school shall use its complete name as listed on
the license to operate for all publicity, publications, promotions, or
marketing purposes.
B. Any governing board, body, entity, or person to whom it
delegates the legal responsibilities and duties of the licensee shall be
clearly identified.
8VAC20-671-210. Responsibilities of the licensee.
The licensee shall:
1. Appoint an individual(s) to whom it delegates the
authority and responsibility to assume the administrative direction of the
school. The appointment shall be in writing.
2. Develop and implement a written decision-making plan
that shall include provision for a staff person with the qualifications of the
school administrator or education program director to be designated to assume
the temporary responsibility for the operation of the school in the absence of
the school administrator. The plan shall include a current organizational
chart.
3. Ensure that staff positions and responsibilities meet
the needs of the population served.
4. Develop a written statement of the objectives of the
school including a description of the target population and the program
offerings.
5. Develop and implement written policies and procedures to
monitor and evaluate the effectiveness of the education program on a systematic
and ongoing basis and implement improvements when the need is determined.
6. Ensure compliance with applicable child labor laws.
7. Develop a written policy prohibiting the consumption of
tobacco products, drugs, and alcohol or being under the influence of
intoxicating or hallucinogenic agents while on campus and at school-sponsored
activities.
8. Require as a condition of employment that any applicant
who accepts employment full-time or part-time, permanent or temporary,
including interns and volunteers, to submit to fingerprinting and to provide
personal descriptive information to be forwarded along with the applicant's
fingerprints through Virginia's Central Criminal Records Exchange to the
Federal Bureau of Investigation for the purpose of obtaining criminal history
record information regarding such applicant. In addition, where the applicant
has resided in another state within the last five years, the school shall as a condition
of employment determine if there are any founded complaints of child abuse or
neglect in such state(s) pursuant to §§ 22.1-296.3 and 22.1-296.4 of the
Code of Virginia.
9. Require as a condition of employment that any applicant
who accepts employment requiring direct contact with students, whether
full-time or part-time, permanent or temporary, including interns and
volunteers, provide written consent and necessary personal information for the
school to obtain a search of the registry of founded complaints of child abuse
and neglect maintained by the Department of Social Services pursuant to
§ 63.2-1515 of the Code of Virginia.
10. Notify the licensing agency within five calendar days
of any change in administration or newly appointed individual responsible for
the day-to-day administration or operation of the school.
11. Ensure that all staff members receive annual
professional development related to their job responsibilities.
12. Report to the licensing agency within 10 business days
lawsuits, settlements, or criminal charges relating to the operation of the
school.
13. Develop and implement an accessible policy and
procedures to handle grievances from students, parents, and employees.
8VAC20-671-220. Fiscal accountability.
A. The licensee shall prepare at the end of each fiscal
year:
1. An operating statement to include a month-to-month
accounting of revenue and expenses for the fiscal year just ended;
2. A working budget showing projected revenue and expenses
for the next fiscal year that gives evidence of sufficient funds to operate;
and
3. A balance sheet showing assets and liabilities for the
fiscal year just ended.
B. There shall be a system of financial recordkeeping that
shows a separation of the school's accounts from all other records.
C. There shall be written policies and procedures that
address the day-to-day handling of the school's funds.
D. The licensing agency reserves the right to call for one
of these two types of statements:
1. An audited financial statement certified by an outside
independent certified public accountant in accordance with standards
established by the American Institute of Certified Public Accountants; or
2. A financial statement that has been reviewed by an
outside independent certified public accountant in accordance with principles
established for reviews by the American Institute of Certified Public
Accountants.
8VAC20-671-230. Protection of contractual rights.
In compliance with § 22.1-324 of the Code of Virginia,
provisions for the protection of contractual rights shall include the
following:
1. With each application, the applicant shall submit and
maintain a guaranty instrument payable to the Commonwealth of Virginia to
protect the contractual rights of students and other contracting parties.
2. The guaranty instrument shall be based on the school's
approved capacity. A minimum guaranty of $10,000 for up to 25 students and
$5,000 for each additional 25 students shall apply.
3. In the event a guaranty instrument is terminated, the
license to operate will terminate within 30 calendar days if a replacement bond
or other instrument is not filed with the licensing agency.
4. If a school collects no advance tuition other than equal
monthly installments or receives payment after services have been rendered, the
school may apply to the licensing agency for exemption from the guaranty
requirements.
8VAC20-671-240. Insurance.
A. The licensee shall maintain liability insurance
covering the premises and the school's operation.
B. The licensee shall maintain liability insurance on all
vehicles used to transport students, including vehicles owned by staff.
C. The members of the governing body and staff who are
authorized to handle school or students' funds shall be bonded.
8VAC20-671-250. Fundraising.
Written consent of the parent(s) or legal guardian and of
a child age 14 or older shall be obtained before participating in any school
fundraising activity.
8VAC20-671-260. Relationship to the licensing agency.
The licensee shall make information available to the
licensing agency upon the requested due date in order to make a timely
determination of compliance with this chapter and other applicable regulations
and statutes. The licensing agency may alter the term of a license if the
school fails to comply in a reasonable time period.
8VAC20-671-270. Personnel policies and procedures.
A. The licensee shall have written personnel policies and
procedures that include, but are not limited to, job qualifications, job
descriptions, staff supervision, evaluation, grievance, and termination.
1. The licensee shall develop and implement written
policies and procedures that persons appointed or designated to assume the
responsibilities of each position possess the education, experience, knowledge,
skills, and abilities specified in the job description.
2. The licensee shall make written personnel policies and
procedures accessible to each employee.
B. The licensee shall maintain a current organizational
chart of all full-time and part-time positions.
8VAC20-671-280. Job qualifications.
A person who assumes or is designated to assume the
responsibilities of a position or any combination of positions described in
this chapter shall meet the qualifications of the position, comply with all
applicable regulations for each function, and demonstrate a working knowledge
of the policies and procedures applicable to the position.
8VAC20-671-290. Job descriptions.
A. There shall be a written job description for each
position that includes job title; duties and responsibilities; job title of the
immediate supervisor; and minimum education, experience, knowledge, skills, and
abilities required for entry-level performance of the job.
B. A copy of the job description shall be given to each
person assigned to a position at the time of employment or assignment.
8VAC20-671-300. School administrators.
A. The licensee shall designate one or more individuals
responsible for the administrative operation of the school who serves as the
instructional leader and is responsible for effective school management that
promotes positive student achievement, and a safe and secure environment in
which to teach and learn.
B. As the instructional leader, the school administrator
is responsible for ensuring that students are provided an opportunity to learn
and shall:
1. Protect the academic instructional time from unnecessary
interruptions and disruptions and enable the professional teaching staff to
spend the maximum time possible in the teaching/learning process by keeping to
a minimum clerical responsibility and the time students are out of class;
2. Seek to maintain a safe and secure school environment;
3. Involve the staff of the school in identifying the types
of staff development needed to improve student achievement and ensure that the
staff participate in those activities;
4. Analyze classroom practices and methods for improvement
of instruction;
5. Ensure that students' education records are maintained
and that criteria used in making placement and promotion decisions, as well as
any instructional interventions used to improve the student's performance, are
included in the record; and
6. Monitor and evaluate the quality of instruction, provide
staff development, and provide support that is designed to improve instruction.
C. The instructional leader shall hold a valid five-year
renewable postgraduate professional license issued by the board with an
endorsement in school administration and supervision or special education and
have at least three years of experience working with students with
disabilities.
D. The instructional leader or designee shall at all times
be on the premises of the school while the school is in operation.
E. All staff on duty must know who is responsible for the
administration of the school at any given time.
8VAC20-671-310. Teachers and staffing.
A. Each teacher shall meet the requirements of the
Licensure Regulations for School Personnel (8VAC20-22).
B. Staffing shall be in accordance with the Regulations
Governing Special Education Programs for Children with Disabilities in Virginia
(8VAC20-81) in the following settings:
1. A student with an Individualized Education Program (IEP)
may be instructed with students without disabilities, as appropriate, and in
accordance with the IEP.
2. A student with an IEP may receive services with children
with the same disability or with children with different disabilities.
C. Teacher personnel assignments shall be in accordance
with Regulations Governing Special Education Programs for Children with
Disabilities in Virginia (8VAC20-81).
1. General education qualified personnel who are
knowledgeable about the students and their special education may implement
special services in collaboration with special education personnel.
2. Special education services include those services
provided directly to the student and those provided indirectly.
D. Teacher caseloads shall be assigned in accordance with
the Regulations Governing Special Education Programs for Children with
Disabilities in Virginia (8VAC20-81).
1. If children with disabilities in a single building receive
academic content area instruction from multiple special education teachers, the
teachers' caseloads shall be determined by using a building average.
2. When special education personnel are assigned to provide
services for students who do not have a disability under this chapter or are
assigned to administrative duties, there shall be a reduction in the caseload
specified in proportion to the percentage of school time on such assignment.
3. Special education personnel may be assigned to serve
children who are not eligible for special education and related services as
long as they hold appropriate licenses and endorsements for such assignments.
E. Staffing for early childhood special education shall be
in accordance with the Regulations Governing Special Education Programs for
Children with Disabilities in Virginia (8VAC20-81).
1. Children of preschool ages (two to five, inclusive) who
are eligible for special education may receive early childhood special
education.
2. Students receiving early childhood special education may
receive services together with other preschool-aged children with the same or
with different disabilities.
F. A school may offer for consideration of approval an
alternative staffing plan in accordance with the department's procedures. The
department may grant approval for alternative staffing levels upon request from
private schools for students with disabilities seeking to implement innovative
programs that are not consistent with the staffing levels outlined in the
Regulations Governing Special Education Programs for Children with Disabilities
in Virginia (8VAC20-81).
8VAC20-671-320. Substitute teachers.
A. No substitute teacher shall be used to fill a vacant
teaching position for more than 90 teaching days in such vacancy during one
school year.
B. Substitute teachers shall be at least 18 years of age,
hold a high school diploma or a general educational diploma (GED), have two
years of full-time postsecondary education or two years of successful work
experience with children with disabilities or equivalent, and attend
orientation to the school's policies and procedures.
8VAC20-671-330. Support staff.
A. School support personnel, including contractual service
providers, shall meet the Board of Education's Licensure Regulations for School
Personnel (8VAC20-22) or the requirements of another state or national
accrediting agency.
B. Paraprofessionals and other ancillary staff shall be at
least 18 years of age (21 years of age preferred), hold a high school diploma
or a general educational diploma (GED), have two years of full-time successful
work experience with children or completed two years of coursework in a related
field, complete orientation conducted by the school administrator or designee
regarding school policies and procedures and characteristics of students
served, and work under the supervision of qualified staff.
C. No support staff shall be used as replacement for
teachers or related service staff unless they meet the qualifications of the
position.
D. Support staff who do not meet licensure or
certification requirements shall not be given misleading work titles or titles
that infer that they meet required credentials.
8VAC20-671-340. Staff supervision.
The licensee shall develop and implement written policies
and procedures regarding the supervision of employees and all other individuals
working with children, including volunteers and interns.
8VAC20-671-350. Staff development.
A. Within seven calendar days following their begin date,
each staff member responsible for working with students shall receive
orientation of the school’s philosophy, goals and objectives; duties and
responsibilities of their position; and the school's policy and procedures for
behavior intervention.
B. Within 14 calendar days following their begin date, all
staff shall receive emergency preparedness and response training that shall
include: alerting emergency personnel and sounding alarms; implementing
evacuation procedures with particular attention to students with special needs;
using, maintaining, and operating emergency equipment; accessing emergency
information for students including medical information; and utilizing community
support services.
C. Within 14 calendar days following their begin date, all
staff shall receive professional development on confidentiality; the school's
administrative decision-making plan; and policies and procedures that are
applicable to their positions, duties, and responsibilities.
D. Within 30 calendar days following their begin date, all
staff shall receive training on the school's policy and procedures, including
standard precautions, child abuse and neglect, and mandatory reporting.
E. Within 30 calendar days following their begin date, all
staff responsible for medication administration shall have successfully
completed an approved medication training program approved by the Board of
Nursing or be licensed by the Commonwealth of Virginia to administer
medications. Staff shall meet this requirement before administering any
medication to students and shall receive annual retraining.
F. All staff shall receive annual professional development
and refresher in emergency preparedness and response to include alerting
emergency personnel and sounding alarms; implementing evacuation procedures
with particular attention to students with special needs; and using,
maintaining, and operating emergency equipment.
G. All staff shall receive annual professional development
and refresher on behavior supports, child abuse and neglect, and mandatory
reporting.
H. Each full-time staff person shall complete an
additional 15 hours of annual training applicable to his job duties.
8VAC20-671-360. Personnel records.
A. Separate up-to-date personnel records shall be
maintained for each full-time and part-time employee, student intern, and
volunteer for whom background investigations are required by Virginia statute.
Content of personnel records of volunteers, student interns, and contractual
service providers shall include, at a minimum, documentation of compliance with
requirements of Virginia laws regarding child protective services and criminal
history background investigations.
B. A record shall be maintained for each staff to include:
1. A completed employment application or other
documentation providing the individual's name, address, and telephone number;
2. Documentation of qualifications;
3. Employment history;
4. Written references or notations of oral references;
5. Reports of required health examinations;
6. Annual performance evaluations;
7. Date of employment for each position held and date of
separation;
8. Documentation of compliance with requirements of
Virginia laws regarding child protective services and criminal history
background investigations;
9. Documentation of Department of Motor Vehicles checks and
a current copy of the driver's license for all staff who transport students;
10. Documentation of all training required by this chapter
and any other training or professional development received by individual
staff; and
11. A current job description.
C. All personnel records shall be maintained
confidentially and retained in their entirety for a minimum of three years
after staff's separation from the school.
8VAC20-671-370. School facilities and safety.
A. Each school shall be maintained in a manner ensuring
compliance with the Virginia Uniform Statewide Building Code (13VAC5-63).
Each school shall:
1. Maintain a physical plant that is accessible, barrier
free, safe, and clean;
2. Provide 50 net square feet per occupant space for
classrooms and suitable space for administrative staff, pupil personnel
services, library and media services, and physical education with consideration
given to safety;
3. Provide adequate, safe, and properly equipped
classrooms, laboratories, play areas, and dining areas that meet the needs of
students and instruction; and
4. Provide space for safe storage of items such as first
aid equipment, medication, household supplies, school supplies, and equipment.
B. After the initial application, the school shall
document annually that buildings and equipment are maintained in accordance
with the Virginia Statewide Fire Prevention Code (13VAC5-51) and maintain
records of regular safety, health, and fire inspections conducted and certified
by local health and fire departments.
C. Building plans and specifications for new construction,
change in use of existing buildings, and any structural modifications or
additions to existing buildings shall be submitted in advance to the licensing
agency for approval.
D. Animals allowed on the premises shall be tested,
inoculated, and licensed as required by law.
E. Smoking shall be prohibited at all times and in all
school buildings, on all school grounds, and during off campus school-sponsored
activities.
F. Swimming pools shall be inspected annually by the state
or local health authorities or by a swimming pool business.
G. There shall be a written policy concerning safeguards
for aquatic-related activities to include supervision by a certified lifeguard.
H. There shall be a written policy regarding safeguards
for school-sponsored activities including adventure and wilderness activities.
I. There shall be an electronic two-way communication
system available to staff at all times in the classroom and during
school-sponsored activities.
8VAC20-671-380. Contingency plans.
A. A school shall have contingency plans for emergencies
that include staff certification in cardiopulmonary resuscitation (CPR),
abdominal thrust (Heimlich maneuver), and emergency first aid.
B. The school administration shall ensure that the school
has:
1. Written procedures to follow in emergencies such as
fire, injury, illness, and violent or threatening behavior. Contingency plans
should be developed with the assistance of state or local public safety
authorities. Such plans shall be outlined in the student handbook and discussed
with staff and students during the first week of each school year;
2. Space for the proper care of students who become ill; and
3. A written procedure for responding to violent,
disruptive, or illegal activities by students on school property or during a
school-sponsored activity.
C. Each school shall have at least three tornado drills
every school year in order that students may be practiced in such drills.
D. The school shall have a written emergency preparedness
and response plan for all locations that addresses:
1. Documentation of contact with the local emergency
coordinator to determine (i) local disaster risks, (ii) communitywide plans to
address different disasters and emergency situations, and (iii) assistance, if
any, that the local emergency management office will provide to the school in
an emergency.
2. Analysis of the school's capabilities and potential
hazards, including natural disasters, severe weather, fire, flooding, workplace
violence or terrorism, missing persons, riot, severe injuries, or other
emergencies that would disrupt the normal course of service delivery.
3. Written emergency management policies outlining specific
responsibilities for provision of administrative direction and management of
response activities; coordination of logistics during the emergency;
communications; life safety of students, employees, contractors, student
interns, volunteers, and visitors; property protection; community outreach; and
recovery and restoration.
4. Written emergency response procedures for assessing the
situation; protecting students, employees, contractors, student interns,
volunteers, and visitors; equipment and education records; and restoring
services.
5. Emergency procedures, which shall address:
a. Communicating with employees, contractors, and community
responders;
b. Warning and notification of students;
c. Providing emergency access to secure areas and opening
locked doors;
d. Conducting evacuations to emergency shelters or
alternative sites and accounting for all students;
e. Relocating students and staff, if necessary;
f. Notifying family members and legal guardians;
g. Alerting emergency personnel and sounding alarms; and
h. Locating and shutting off utilities when necessary.
6. Supporting documents that would be needed in an
emergency, including emergency call lists, building and site maps necessary to
shut off utilities, designated escape routes, and list of major resources such
as local emergency shelters.
7. Schedule for testing the implementation of the plan and
conducting emergency preparedness drills.
8. Children who use wheelchairs, crutches, canes, or other mechanical
devices for assistance in walking shall be provided with a planned,
personalized means of effective egress for use in emergencies.
E. The school shall have emergency preparedness and
response training for all employees, contractors, student interns, and
volunteers that shall include responsibilities for:
1. Alerting emergency personnel and sounding alarms;
2. Implementing evacuation procedures including evacuation
of students with special needs (i.e., deaf, blind, nonambulatory);
3. Using, maintaining, and operating emergency equipment;
4. Accessing emergency information for students including
medical information; and
5. Utilizing community support services.
F. There shall be documented review of the emergency
preparedness plan annually and revisions made if necessary.
G. Employees, contractors, student interns, and volunteers
shall be prepared to implement the emergency preparedness plan in the event of
an emergency.
H. Floor plans showing primary and secondary means of
egress shall be posted on each floor in locations where they can easily be seen
by staff and students.
I. The procedures and responsibilities reflected in the
emergency procedures shall be communicated to all students within seven days
following admission or a substantive change in the procedures.
J. At least one evacuation drill (the simulation of the
school's emergency procedures) shall be conducted each week during the first
month of school and one each month thereafter in each building occupied by
students.
K. Evacuation drills shall include, at a minimum:
1. Sounding of emergency alarms;
2. Practice in evacuating buildings and buses or vans;
3. Practice in alerting emergency authorities;
4. Simulated use of emergency equipment; and
5. Practice in securing student emergency information.
L. A record shall be maintained for each evacuation drill
and shall include the following:
1. Buildings and buses or vans in which the drill was
conducted;
2. Date and time of drill;
3. Amount of time to evacuate the buildings;
4. Specific problems encountered;
5. Staff tasks completed including head count and practice
in notifying emergency authorities; and
6. The name of the staff members responsible for conducting
and documenting the drill and preparing the record.
M. The record for each evacuation drill shall be retained
for three years after the drill.
N. At least one staff member shall be assigned the
responsibility for ensuring that all requirements regarding the emergency
preparedness and response plan and the evacuation drill program are met.
O. In the event of a disaster, fire, emergency, or any
other condition that may jeopardize the health, safety, and welfare of
students, the school shall notify the parent(s), the student's public school,
placing agency, and licensing agency as soon as possible, but no later than 24
hours after the incident occurs.
8VAC20-671-390. Weapons.
The licensee shall develop written policies and procedures
governing prohibition of the possession and use of firearms, pellet guns, air
guns, and other weapons on the school's premises and during school-related
activities unless the weapons are in the possession of licensed security
personnel or law-enforcement officers.
8VAC20-671-400. Strip searches.
A. Strip searches and body cavity searches are prohibited.
B. A school that does not conduct pat downs shall have a
written policy prohibiting them.
C. A school that conducts pat downs shall develop and
implement written policies and procedures that shall provide the following:
1. Pat downs shall be limited to instances where they are
necessary to prohibit contraband;
2. Pat downs shall be conducted by personnel of the same
gender as the student being searched;
3. Pat downs shall be conducted only by personnel who are
specifically authorized to conduct searches by the school's written policies
and procedures; and
4. Pat downs shall be conducted in such a way as to protect
the subject's dignity and in the presence of one or more witnesses.
8VAC20-671-410. Student application and admission.
A. The school's written admission policy shall include:
1. A description of the population to be served;
2. A description of the types of services offered;
3. Admission procedures;
4. Exclusion criteria that identify behaviors or conditions
the school will not accept; and
5. A description of how educational services will be
delivered.
B. A summary of each school's admissions policy, course
offerings at each grade level, and behavioral management program shall be made
available to students, parents, and placing and licensing agencies.
C. Each school's admissions process shall be designed to
determine the suitability of enrolling a student. The school shall accept and
serve only those students whose needs are compatible with the services provided
by the school.
D. The school shall provide written notification for a
student's education records within five business days of the student's
enrollment. Notification shall be made to the superintendent of the school
division where the student last attended. The school shall request current
information pertinent to the student's educational growth to include, but not
limited to, the IEP, 504 Plan, or career development plan; plan of study;
assessments; grades or transcript; discipline records; and health records.
E. An application for admission is not to be construed as
a binding instrument on the part of the student or the school.
F. A school may require the payment of a reasonable
nonrefundable initial application fee to cover expenses in connection with
processing a student's application 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.
G. Any contract or enrollment agreement used by the school
shall be in writing and clearly specify the following:
1. Complete name and physical address of the school;
2. Itemized cost of the program to include tuition,
scholarships, and all other charges; and
3. The school's contingency, cancellation, and refund
policies.
H. Any contract or enrollment agreement used by the school
becomes a legally binding instrument upon the school's written acceptance.
I. Each school that serves privately placed students shall
offer access to a tuition insurance plan if the school financially obligates
students for more than quarterly increments of annual tuition.
8VAC20-671-420. Standard school year and school day.
A. Each school shall have a standard school year of at
least 180 instructional days. The standard school day for students in grades 1
through 12 shall average at least 5-1/2 instructional hours (990 hours annual
instructional time), excluding breaks for meals and recess, and a minimum of
three hours for kindergarten.
B. All students in grades 1 through 12 shall maintain a
full day schedule of classes (5-1/2 hours) unless otherwise stated in the
child's Individualized Education Program (IEP), Individualized Instruction Plan
(IIP), 504 Plan, or other documentation.
C. Each school shall have policies and procedures that
address make-up days when the school is unable to meet the required
instructional time.
8VAC20-671-430. School and community communications.
A. Each school shall promote communications and foster
mutual understanding with parents and the community and use information from
parents, citizens, business, and industry in evaluating the educational
program.
B. At the beginning of each school year, the school shall
provide to parents or guardians information on the availability of and source
for receiving the curriculum for their child's core subjects and a copy of the
school's promotion and retention policies and access to the school's policies
and procedures.
8VAC20-671-440. Philosophy, goals, and objectives.
A. Each school shall have a current philosophy, goals, and
objectives that serve as the basis for all policies and practices and shall be
developed using the following criteria:
1. The philosophy, goals, and objectives shall be developed
with the advice of professional and lay people who represent the various
populations served by the school and in consideration of the needs of the
community and shall serve as a basis for an annual self-evaluation of the
school.
2. The goals and objectives shall (i) be written in plain
language so as to be understandable to noneducators, including parents; (ii) to
the extent possible, be stated in measurable terms; and (iii) consist primarily
of measurable objectives to raise student and school achievement in the core
academic areas, to increase graduation rates, and to increase the quality of
instruction through professional staff development and licensure.
B. Copies of the school's philosophy, goals, and
objectives shall be available upon request.
8VAC20-671-450. Student achievement expectations.
A. A process to identify and recommend strategies to
address the learning, behavior, communication, or development of individual
students who are having difficulty in the educational setting shall be
developed at each school.
B. Participation in the Virginia assessment program by
students with disabilities shall be prescribed by provisions of their IEPs or
504 Plans. All students with disabilities shall be assessed with appropriate
accommodations and alternate assessments when required.
C. Each school that serves students who anticipate earning
a diploma and graduating from a Virginia high school must follow the
requirements for graduation outlined in the Regulations Establishing Standards
for Accrediting Public Schools in Virginia (8VAC20-131).
D. The school shall cooperate with the public school in
the administration of SOL tests to students with disabilities and students who
need verified credits to graduate from a public high school in Virginia, and
the administration of any other SOL tests.
E. The school shall use testing and evaluation materials
that are not racially or culturally discriminatory and do take into
consideration the student's disabling condition(s), racial background, and
cultural background.
8VAC20-671-460. Program of instruction and learning
objectives.
A. Each school's instructional program shall reflect the
written philosophy of the school. The methods, procedures, and practices shall
reflect an understanding of and meet the applicable academic, vocational,
therapeutic, recreational, and socialization needs of the students served.
B. The instructional program shall be designed to meet the
needs of all students enrolled and shall educate students with age-appropriate
peers.
C. Services shall be delivered in accordance with the
student's IEP, IIP, or 504 Plan.
D. Each school serving students 14 years of age and older
shall provide opportunities for students to gain knowledge and occupational
readiness skills necessary for successful transition to training, employment,
and independent living, as appropriate.
E. Each school shall provide opportunities for students to
gain knowledge and occupational readiness skills necessary for successful
transition to postsecondary training, education, employment and independent
living skills, as appropriate.
F. Each school shall provide a program of instruction that
supports the SOL for the core subjects: English, mathematics,
science, and history/social science.
G. Each school shall require students to participate in a
program of health and physical fitness during the regular school year unless
the student is unable to participate due to a medical condition.
H. Each school shall provide students with opportunities
to gain appreciation for art and music.
I. Each school shall provide an instructional program that
promotes the individual student's developmental growth and academic achievement
at successive grade levels, as appropriate.
J. The services provided by a private school shall be
provided by personnel meeting the same licensure requirements as personnel
providing services in the public school, outlined in Licensure Regulations for
School Personnel (8VAC20-22).
K. The school shall equitably serve the needs and
interests of all students, taking into consideration age appropriateness,
cultural norms, physical abilities, and cognitive abilities.
8VAC20-671-470. Individualized Education Program (IEP).
A. When a child is presently receiving the services of a
private school, a representative of the private school shall attend IEP
meetings upon the request of the student's school division. If a representative
is not able to attend, the school shall use other methods to ensure
participation by the private school including individual or conference
telephone calls.
B. After a child with a disability enters a private
school, any meetings to review and revise the child's IEP may be initiated and
conducted by the private school at the discretion of the student's school
division.
C. If the private school initiates and conducts these
meetings, the student's school division and the parent(s) shall:
1. Be involved in any decision affecting the child's IEP;
2. Agree to any proposed changes in the program before
those changes are implemented; and
3. Be involved in any meetings that are held regarding
reevaluation.
D. A parent(s) does not include local or state agencies or
their agents, including local departments of social services, if the child is
in the custody of such an agency.
E. When a child with a disability is placed by a local
school division or a Comprehensive Services Act team in a private school, all
rights and protections under state and federal regulations shall be extended to
the child.
8VAC20-671-480. Individualized Instruction Program (IIP).
A. Students without disabilities and those placed by
parents for educational reasons shall have an Individualized Instruction
Program (IIP) developed within 30 days of admission that describes strengths
and needs of the student, current level of functioning, goals and objectives,
timelines, course of study, and postsecondary goals for students 14 years of
age and older.
B. Each school shall request with consent of the parent(s)
the student's education records from the last school attended, and information
from other agencies as appropriate. This information should be used in
developing the student's IIP.
C. The IIP shall provide a beginning and ending date of
services.
D. The IIP shall be reviewed at least annually by a team
that includes the student and the parent.
E. Student progress reports shall be provided to the
parent or guardian at least quarterly.
8VAC20-671-490. 504 Plans.
Each school admitting students with 504 Plans shall
implement the plan and cooperate with the school division in its annual review.
8VAC20-671-500. Instructional program for elementary school
grades.
A. The elementary school grades shall provide each student
a program of instruction that supports the SOL for English, mathematics,
science, and history/social science. In addition, each school shall provide
opportunities for students to gain an appreciation for art and music. Students
shall be required to participate in a program of health and physical fitness
during the regular school year.
B. In kindergarten through grade 3, reading, writing,
spelling, and mathematics shall be the focus of the instructional program.
C. To provide students with sufficient opportunity to
learn, a minimum of 75% of the annual instructional time of 990 hours shall be
given to instruction in the disciplines of English, mathematics, science, and
history/social science. Students who are not successfully progressing in early
reading proficiency or who are unable to read with comprehension the materials
used for instruction shall receive additional instructional time in reading.
8VAC20-671-510. Instructional program for middle school
grades.
A. The middle school grades shall provide each student a
program of instruction that supports the SOL for English, mathematics,
science, and history/social science. Each school shall provide opportunities
for appreciation of art and music and an introduction to career and technical
exploration and require students to participate in a program of health and
physical fitness during the regular school year.
B. English, mathematics, science, and history/social
science shall be required.
C. To provide students a sufficient opportunity to learn,
each student shall be provided 140 clock hours per year of instruction in each
of the four disciplines of English, mathematics, science, and history/social
science.
D. Each school shall ensure that students who are unable
to read with comprehension the materials used for instruction receive
additional instruction in reading.
8VAC20-671-520. Instructional program for secondary school
grades.
A. The secondary school grades shall provide each student
a program of instruction that supports the SOL in English, mathematics,
science, and history/social science.
B. To provide students a sufficient opportunity to learn,
each student shall be provided 140 clock hours per year of instruction in each
of the four disciplines.
C. Students in secondary education programs who plan to
graduate with a standard or advanced diploma from a Virginia public high school
should have the opportunity to complete credits in foreign languages, fine
arts, and career and technical training.
D. Classroom driver education may count for 36 class
periods of health education. Students shall not be removed from classes other
than health and physical education for the in-car phase of driver education.
E. Each school shall ensure that students who are unable
to read with comprehension the materials used for instruction receive
additional instruction in reading,
F. Guidance and counseling shall be provided for students
to ensure that a program of studies contributing to the student's academic
achievement and meeting graduation requirements is being followed.
8VAC20-671-530. Alternative education.
Schools may provide students, 16 years of age to 18 years
of age, an Individualized Student Alternative Education Plan (ISAEP), a program
that includes career guidance counseling; mandatory enrollment in a GED
preparation program; and career and technical education. Implementation of the
ISAEP requires submission of an application and approval by the Department of
Education.
8VAC20-671-540. Transition services.
A. Schools shall cooperate with the public schools to
ensure that the transition plan for each student with a disability, beginning
at 14 years of age (or younger), is implemented according to the child's IEP.
B. Schools shall provide evidence of transition services
designed within an outcome-oriented process for all students, as appropriate,
that promotes movement from the private school to a public school the child
would normally attend; movement from school to post-school activities, including
postsecondary education, vocational training, integrated employment (including
supported employment), continuing and adult education, adult services,
independent living, or community participation.
8VAC20-671-550. Extracurricular and other school activities,
and recess.
A. School-sponsored extracurricular activities shall be
under direct supervision of the staff and shall contribute to the educational
objectives of the school. Extracurricular activities must be organized to avoid
interrupting the instructional program.
B. School-sponsored extracurricular activities shall have
at least one person certified in CPR for every 10 students.
C. Schools that take students on adventure activities
shall develop policies and procedures to ensure supervision, health and safety,
and medical management.
8VAC20-671-560. Family life.
A. Schools may use the Standards of Learning for the
family life education program or other education program, which shall have the
goals of reducing the incidence of pregnancy and sexually transmitted diseases
and substance abuse.
B. Schools offering family life shall obtain written
consent from the parent or guardian for the child's enrollment in the course.
8VAC20-671-570. Student work-study or on-the-job training.
A. Each school that places students on work-study,
on-the-job training, or any other form of employment shall ensure compliance
with the applicable laws governing the employment of children.
B. Work assignments that are paid or unpaid shall be in
accordance with the age, health, ability, and education program of the student.
C. Work assignments or employment outside the school,
including reasonable rates of pay, shall be approved by the school
administrator with the knowledge and consent of the parent or legal guardian.
8VAC20-671-580. Virtual learning.
A. Schools are encouraged to pursue alternative means to
deliver instruction to accommodate student needs through virtual learning. A
school shall ensure that each virtual education course is provided by an
institution accredited by a nationally recognized accrediting body or is
authorized by a public school or school division.
B. A school shall ensure that virtual learning courses
meet the following requirements:
1. The content, instruction, and assessment of each course
is comparable in rigor and breadth to the course that is traditionally
delivered;
2. The course content is appropriate for the school's grade
levels and age range; and
3. The virtual learning shall be supervised by a licensed
teacher or a person eligible to hold a Virginia teaching license. The
individual shall be available to the student.
8VAC20-671-590. Equipment, instructional materials, and
library media.
A. Each school shall provide a variety of current
grade-level materials and equipment to support the instructional program,
including functional life skills programs.
B. Each school shall provide access to computers and
library media necessary to meet research inquiry and reading requirements of
the instructional program and general student interest.
C. Each student, as appropriate, shall be provided
instruction on the use of instructional equipment and shall demonstrate
understanding before access to laboratories.
D. Each school shall provide textbooks and instructional
materials that support Virginia's Standards of Learning.
E. Each school shall establish written policy on the use
of computers, including the use of the Internet and email.
8VAC20-671-600. School records.
Each school shall maintain up-to-date records to include
the school's academic calendar, class roster, class schedule, course
descriptions, course curriculum, individual student schedules, student progress
reports, and student transcript or other documentation of grades.
8VAC20-671-610. Diplomas.
A. No school shall use the seal of Virginia in its diploma
design.
B. Each school that offers a diploma upon graduation shall
have written policy and procedures that address the following:
1. The requirements for a diploma shall be those in effect
when the student enters the ninth grade for the first time.
2. The requirements for a diploma shall be based upon
completion of program requirements that demonstrate academic rigor.
8VAC20-671-620. Student conduct.
A. Each school shall have written policies and procedures
that address standards of student conduct and procedures for enforcement to
include attendance, truancy, suspension, expulsion, alcohol, drugs, weapons,
fighting, bullying, sexual and disability harassment, pornography, and other
areas as appropriate.
B. When a student is suspended, including in-school
suspension, or expelled, the school shall notify the student's home school
division within 24 hours.
8VAC20-671-630. Behavior intervention.
A. Each school shall develop and implement written
policies and procedures that emphasize positive behavior interventions that
focus on teaching and supporting students to practice methods to manage their
own behavior.
B. Behavior techniques that are used or available for use
shall be listed in the order of their relative degree of restrictiveness and
specify the staff members who may authorize the use of each technique.
C. Staff shall consider behavior management data in their
annual review of the school's policies and procedures.
D. When substantive revisions are made to policies and
procedures governing management of student behavior, written information
concerning the revisions shall be provided to students, parents, placing
agencies, and the licensing agency prior to implementation.
8VAC20-671-640. Time-out.
A. The school shall have written policy and procedures
governing the conditions under which a student may use time-out and the maximum
period of time-out not to exceed 30 minutes per episode. The conditions and maximum
period of time-out shall be based on the student's chronological and
developmental level. The school's policy and procedures shall include
provisions that address the following:
1. Each student is entitled to be completely free from any
unnecessary use of time-out.
2. The areas in which a student is placed shall not be
locked nor the door secured in a manner that prevents the student from opening
it.
3. A student in time-out shall be able to communicate with
staff.
4. Staff shall check on the student in the time-out area at
least every 15 minutes and more often depending on the nature of the student's
disability, condition, and behavior.
5. Procedures shall be implemented for documenting the use
of time-out and staff checks on the student.
6. Staff shall review procedures when a student
consistently chooses to stay in time-out beyond the determined time limit to
determine that it has not become reinforcement.
8VAC20-671-650. Prohibitions.
A. The following actions are prohibited:
1. Restraint and seclusion, except when it is necessary to
protect the student or others from personal harm, injury, or death and other
less restrictive interventions were unsuccessful;
2. Prone "face down" restraints, mechanical
restraints, and pharmacological restraints;
3. Deprivation of drinking water or food;
4. Limitation on contacts and visits with the student's
probation officer, regulators, or placing agency representative;
5. Any action that is humiliating, degrading, or abusive;
6. Corporal punishment;
7. Deprivation of approved prescription medication or other
necessary services and treatment;
8. Denial of access to toilet facilities;
9. Application of aversive stimuli;
10. Strip and body cavity searches; and
11. Discipline, restraint, or implementation of behavior
management plans by other students.
8VAC20-671-660. Managing student behavior in emergency
situations.
A. Application of a formal behavior management program
designed to reduce or eliminate severely maladaptive, violent, or
self-injurious behavior contingent upon the exhibition of such behaviors is
allowed only as part of an individually approved time specific plan that is
consistent with sound therapeutic practice. Written consent of the student,
parent or guardian, and the student's school division is required.
B. Each school shall have written policies and procedures
that include, but are not limited to:
1. Methods for preventing student violence, self-injurious
behavior, and suicide, including de-escalation of potentially dangerous
behavior occurring among groups of students or with an individual student.
2. A policy stating that corporal punishment and abusive
techniques and interventions are not authorized, permitted, or condoned.
C. Each school shall develop and implement behavior
management techniques in order of their relative degree of intrusiveness or
restrictiveness and the conditions under which they may be used by trained
school personnel.
D. While the use of restraint and seclusion is prohibited,
a school that finds it absolutely necessary can only do so under the following
conditions:
1. Physical restraint or seclusion is allowed only in an
emergency situation for a time period that is necessary to contain the behavior
of the student so that the student no longer presents an immediate threat of
causing physical injury to self or others or causing severe property damage.
2. Physical restraint or seclusion shall not be used as a
punishment, retaliation, or for staff's convenience.
3. The school shall have written policies and procedures
governing use of physical restraint and seclusion incidents that shall include
the following:
a. Each student is entitled to be completely free from any
unnecessary use of physical restraint or seclusion. Physical restraint and
seclusion are allowed only in an emergency situation for a time period that is
necessary to contain the behavior of the student so that the student no longer
presents an immediate threat of causing physical injury to self or others or
causing severe property damage.
b. The school shall provide written notice of its behavior
management program to students, parent(s), and placing agency at the time of
the student's enrollment.
c. Staff shall monitor the use of restraint and seclusion
through continuous face-to-face observation, not solely by an electronic
surveillance device.
d. Restraints may only be implemented, monitored, and
discontinued by staff who have been trained in the proper and safe use of
restraint, including hands-on techniques.
e. Students must be supervised by staff members trained in
behavior intervention.
f. Schools shall inform the parent and placing agency of
each incident of physical restraint or seclusion on the day of the occurrence
and make available to the licensing agency upon request.
g. Each application of physical restraint or seclusion
shall be fully documented in the student's record including date, time, staff
involved, justification for the restraint or seclusion, less restrictive
interventions that were unsuccessfully attempted prior to using physical restraint
or seclusion, duration, description of method or methods of physical restraint
techniques used, signature of the person completing the report and date, and
reviewer's signature and date.
8VAC20-671-670. Videotaping.
A. Schools shall have written policy and procedures
regarding videotaping students while in school and any school-sponsored
activity, including those used for staff training.
B. No student shall be videotaped without written consent
of the parent and eligible student.
C. Any videotaping of students shall be maintained
confidentially unless there is explicit written permission to release or
disclose from the parent(s) and eligible student.
D. Buildings and grounds surveillance is not considered
videotaping for the purpose of this chapter.
8VAC20-671-680. Referral for evaluation.
A. When a student, including those placed by their
parent(s) or from out-of-state, is suspected of having a disability, the school
shall make a referral to the division superintendent of the school division
where the private school is located. Documentation of the referral notice shall
be maintained in the student's record.
B. The school shall cooperate with the school division on
child find activities.
8VAC20-671-690. Suspected child abuse and neglect.
A. Written policies and procedures related to child abuse
and neglect shall comply with the requirements of § 63.2-1509 of the Code
of Virginia and distributed to all staff members. Policies and procedures shall
include:
1. Handling accusations against staff; and
2. Promptly referring suspected cases of child abuse and
neglect to the local child protective services unit and for cooperating with
the unit during any investigation.
B. Any case of suspected child abuse or neglect occurring
at the school or on a school-sponsored event or excursion shall be reported
immediately to the student's parent, guardian, or both if appropriate, and the
placing and licensing agencies.
C. When a case of suspected child abuse or neglect is
reported to child protective services, the school shall document the following:
1. The date and time the suspected abuse or neglect
occurred;
2. A description of the suspected abuse or neglect;
3. Action taken as a result of the suspected abuse or
neglect;
4. The name of the person who made the report to child
protective services; and
5. The name of the person to whom the report was made at
the local child protective services unit.
D. Suspected child abuse shall be handled and reported as
a serious incident.
8VAC20-671-700. Serious incident reports.
A. Any serious incident, accident, or injury to a student
or medication error that occurs at the school or a school-sponsored activity
shall be reported immediately, no later than the end of the school day, to the
parent, student's public school, placing agency, and licensing agency.
B. The school shall document the following:
1. The date and time the incident occurred;
2. A brief description of the incident;
3. The action taken as a result of the incident;
4. The name of the person who completed the incident report;
and
5. The date and name of the person who made the report to
the proper authorities.
C. The licensing agency shall review all reports of
serious incidents and investigate as appropriate using the complaint resolution
procedures of this chapter.
8VAC20-671-710. Medication and health.
A. Each student shall have on file evidence of a
comprehensive physical examination prescribed by the State Health Commissioner
from a qualified licensed (i) physician, (ii) nurse practitioner, or (iii)
physician assistant acting under the supervision of a licensed physician. The
examination must contain, at a minimum, information required on the
Commonwealth of Virginia School Entrance Health Form.
B. Each student shall have an up-to-date certificate of
immunization documenting the immunizations required by the Code of Virginia and
State Board of Health’s Regulations for the Immunization of School Children
(12VAC5-110).
C. Any student or staff with a disease or medical
condition that is contagious or infectious shall be excluded from school while
in that condition unless attendance is approved by a qualified healthcare
provider. Conditions meeting this requirement must be provided in the
parent/student handbook or other print materials.
D. A first aid kit shall be maintained and readily
accessible for minor injuries and medical emergencies in each building used for
instruction or other school activity.
E. All medications shall be accepted only in the original
container with written permission signed and dated by the parent to administer
to his child. The use of all prescriptive medication must be authorized in
writing by a licensed prescriber.
F. All medication and medical paraphernalia shall be
securely locked and properly labeled.
G. A program of medication administration shall be
initiated for a student only when prescribed in writing by a person authorized
by law to prescribe medication and written consent from the parent is obtained
to administer.
H. An individual medication administration record shall be
maintained for each medication a student receives and shall include student
name, date the medication is to begin, drug name, schedule for administration,
strength, route, identification of the individual who administered the
medication, and dates the medication was discontinued or changed.
I. The provider shall develop and implement written
policies and procedures regarding:
1. Managing medication errors to include the following:
administering first aid; contacting the poison control center; notifying the
prescribing physician; taking action as directed; documenting the incident;
reviewing medication errors and staff responses; and reporting errors to the
parent and placing agency.
2. Handling adverse drug reactions;
3. Revising procedures as events may warrant;
4. Disposing of medication and medical supplies such as
needles, syringes, lancets, etc.;
5. Storing of controlled substances;
6. Distributing medication off campus; and
7. Medication refusal to include who is responsible for
documentation, where it will be documented and action taken by staff.
J. The telephone number of a regional poison control
center and other emergency numbers shall be posted on or near the phone.
K. Medication training.
1. All staff responsible for medication administration
shall have successfully completed a medication training program approved by the
Board of Nursing or be licensed by the Commonwealth of Virginia to administer
medication before they can administer medication.
2. Training shall be provided to all staff in medication
procedures and effects and infection control measures, including the use of
standard precautions.
3. There shall be a ratio of one staff member to 10
students certified in first aid and CPR and available at all times on the
school grounds and during any school-sponsored activity.
4. Documentation of medication training must be maintained
in personnel files.
5. Staff authorized to administer medication shall be
informed of any known side effects of the medication and the symptoms of the
effects.
L. Monitoring the supply of medications.
1. Upon receiving any medication, staff members handling
medication shall count individual tablets and measure the level of liquid
medicine in the presence of the parent(s) or another staff member and record
the count on the medication log.
2. The medication log shall include the signature or
initials of the staff member who counted the medication and the parent or staff
who witnessed the occurrence. When initials are used, the medication
administration record must contain the full name of the staff with
corresponding initials for identification purposes.
3. Students shall be prohibited from transporting
medication.
8VAC20-671-720. School nutrition.
A. Schools with internal food service shall serve to each
student on a daily basis a daily diet that (i) consists of nutritionally
balanced meals, (ii) includes an adequate variety and quantity of food for the
age of students, and (iii) meets the minimum requirements and the U.S. Dietary
Guidelines.
B. Schools with internal food service shall ensure that
all food safety and sanitation procedures are followed in accordance with state
and federal regulations.
C. Records of menus for all meals served shall be kept on
file for six months.
D. Special diets shall be provided when prescribed by a
physician or requested by the student or parent because of the student's
established religion.
E. In schools where students are required to bring their
own lunch, provisions shall be made to ensure a meal for all students.
8VAC20-671-730. Transportation.
A. Each school shall have on file evidence that any
vehicles used for the purpose of transporting students to and from school and
school-related activities meet federal and state regulations, including:
1. Vehicle safety and maintenance;
2. Licensure of vehicles;
3. Licensure of drivers;
4. Vehicle liability insurance;
5. Child passenger safety, including requiring students to
wear seat belts or restraints; and
6. Safety measures that take into consideration the age and
disabling conditions of students.
B. All vehicles used to transport students to school
activities shall be equipped with first aid kits, a fire extinguisher, and
two-way communication devices.
C. Individual student emergency information including
currently prescribed and over-the-counter medications, significant medical
problems, and any allergies shall accompany students when they are being
transported.
8VAC20-671-740. Treatment services.
Licensed providers of treatment services shall coordinate
those services to allow students to receive the required hours of instruction
to the extent possible. When treatment services are not prescribed by a
licensed mental health professional, the student shall receive the required
number of hours of instruction.
8VAC20-671-750. Student discharge.
A. Each school shall have policies and procedures that
address conditions for which a student may be discharged from the school.
B. The school's criteria for discharge shall be made
available to prospective students, parents, and placing agencies before their
enrollment.
C. The student's education record shall be documented with
the date of discharge and reason for discharge.
D. Students shall be discharged only to the parent or
legally authorized representative.
8VAC20-671-760. Maintenance of student records.
A. The school shall have written policy and procedures for
the management of all records, print and nonprint, regarding confidentiality,
accessibility, security, and retention.
B. Student education records shall be maintained in
fireproof cabinets and protected from unauthorized disclosure.
C. Each student's education record shall contain
information pertinent to the educational growth and development to include a
completed enrollment sheet; a current IEP, 504 Plan, or IIP; student
transcript; course of studies; and progress reports. Other information should
include disciplinary records, health records, and achievement and test data.
D. A school shall obtain written consent from the child's
parent before disclosure of information from a student's education record to
unauthorized parties. Authorized parties shall be limited to school employees,
including contracted employees, and representatives of state licensing agencies
who need access to the student's records to carry out their work
responsibilities.
E. A school may disclose information in an emergency to
any person who needs that particular information for the purpose of preventing
injury to a student or staff. The school shall not disclose any information
that is not needed for this specific purpose. The school may disclose any
records if they are properly subpoenaed, if a court orders them to be produced,
to the school's own legal counsel, or to anyone working on behalf of their
legal counsel in providing representation to the school.
F. The school shall permit a parent or parents to inspect
and review any education records relating to their child that are collected,
maintained, or used by the school. The school shall comply with a request
without unnecessary delay and before any meeting regarding an IEP or 504 Plan
or in no case more than 14 calendar days after the request has been made. The
right to inspect and review education records under this section includes:
1. The right to a response from the school to reasonable
requests for explanations and interpretations of the records;
2. The right to request that the school provide copies of
the records containing the information if failure to provide those copies would
effectively prevent the parent from exercising the right to inspect and review
the records;
3. The right to have a representative of the parent inspect
and review the records; and
4. A school may presume that a parent has authority to
inspect and review records relating to his child unless the school has been
advised that the parent does not have the authority under applicable Virginia
law governing such matters as guardianship, separation, and divorce.
G. Each school shall keep a record of parties, except
parents and authorized employees of the school, obtaining access to education
records collected or maintained, including the name of the party, the date of
access, and the purpose of the access.
H. If any education record includes information on more
than one child, the parent(s) of those children have the right to inspect and
review only the information relating to their child or to be informed of the
specific information requested.
I. Schools may charge a fee for copies of records that are
made for a parent(s) under this chapter if the fee does not effectively prevent
the parent(s) from exercising their right to inspect and review those records.
A school may not charge a fee to search for or to retrieve information under
this section.
J. A parent(s) who believes that information in the
education records collected, maintained, or used under this chapter is
inaccurate or misleading or violates the privacy or other rights of the child
may request the school that maintains the information to amend the information.
1. The school shall decide whether to amend the information
in accordance with the request within a reasonable period of time of receipt of
the request.
2. If the school decides to refuse to amend the information
in accordance with the request, it shall inform the parent(s) of the refusal
and inform the parent of the right to place in the child's education records a
statement commenting on the information or setting forth any reasons for
disagreeing with the decision of the school.
3. Any explanation placed in the records of the child under
this section must:
a. Be maintained by the school as part of the records of
the child as long as the record or contested portion is maintained by the
school; and
b. If the records of the child or the contested portion is
disclosed by the school to any party, the explanation must also be disclosed to
the party.
K. Records retention.
1. Each school shall maintain all education records,
including discipline and medical records for as long as the student continues
enrollment at the school.
2. When a student transfers to another school, the
student's complete education record shall be transferred within five business
days from the date of request and notification of the transfer to the parent,
guardian, and placing agency.
3. When a student graduates or leaves school, the school
shall offer all records to the eligible student or parent(s). The records of a
publicly placed student who graduates or leaves school shall be transferred to
the child's public school.
4. Each school shall maintain a permanent record of
attendance to include the following:
a. Name and address of school;
b. Name, address, and birth date of student;
c. Name and address of parent or parents;
d. Student ID;
e. Dates of attendance;
f. Verification of immunizations;
g. Scholastic work completed; and
h. Academic transcript.
8VAC20-671-770. Participation of students in human research.
A. No human research involving students shall be conducted
or authorized by any school unless in compliance with the Board of Education's
regulation, 8VAC20-565, or other applicable law, including 45 CFR Part 46.
B. No such research shall be conducted or authorized
unless the student and the student's legally authorized representative give
their informed consent. Such informed consent shall be by a signed and
witnessed informed consent form. Such form shall comply with § 32.1-162 of
the Code of Virginia.
C. Any such research shall be approved and conducted under
the review of a human research committee, which shall be established by the
school conducting or authorizing the research. Any such committee shall comply
with the provisions of § 32.1-162.19 of the Code of Virginia. The
committee shall submit to the Governor, the General Assembly, and the
Superintendent of Public Instruction or designee at least annually a report on
the student projects reviewed and approved by the committee, which shall state
significant deviations from the proposals as approved.
D. There shall be excluded from the operation of this
chapter those categories of research in § 32.1-162.17 of the Code of
Virginia that exempt research or student learning outcomes as conducted in
educational settings involving regular or special education instructional strategies;
the effectiveness of or the comparison among instructional techniques,
curricula, or classroom management methods; or the use of educational tests,
whether cognitive, diagnostic, aptitude, or achievement, if the data from such
tests are recorded in a manner so that subjects cannot be identified, directly
or through identifiers linked to the subjects.
8VAC20-671-780. Procedures for school closing.
A. A school that ceases operation shall provide written
notice as early as possible to all enrolled students, the parent(s), the
student's public school, and licensing agencies.
B. All advertisements of the school's operation shall
cease immediately, and the current license to operate shall be returned
promptly to the licensing agency.
C. If privately placed students are unable to complete the
academic year due to the school's closing, the school's guaranty instrument
shall be used for tuition reimbursement to the fullest extent allowable.
D. All education records of privately placed students
shall be provided to the parent or student who has reached 18 years of age and
acknowledgement of such to the licensing agency.
E. All education records of publicly placed students shall
be returned to the school division of the parent's residence and
acknowledgement of such to the parent or student who has reached 18 years of
age, and the licensing agency.
VA.R. Doc. No. R11-2536; Filed October 2, 2012, 7:50 a.m.
RADFORD UNIVERSITY
Final Regulation
REGISTRAR'S NOTICE:
Radford University 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: 8VAC75-20. Weapons Regulation (adding 8VAC75-20-10 through 8VAC75-20-40).
Statutory Authority: § 23-155.7 of the Code of
Virginia.
Effective Date: October 1, 2012.
Agency Contact: Lisa H. Ridpath, Associate Vice
President for Finance and Administration, Radford University, P.O. Box 6923,
Radford, VA 24142, telephone (540) 831-6404, FAX (540) 831-6471, or email
lridpath@radford.edu.
Summary:
This action implements the prohibition of weapons on
Radford University property.
CHAPTER 20
WEAPONS REGULATION
8VAC75-20-10. Definitions.
The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Firearms" are defined as any gun, rifle,
pistol, or handgun designed to fire any projectile including but not limited to
bullets, BBs, pellets, or shots, including paint balls, regardless of the
propellant used.
"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, currently
sworn federal law-enforcement officers, or currently sworn and certified
law-enforcement officers of all other jurisdictions of the United States of
America.
"University property" means any property owned,
leased, or controlled by Radford University.
"Weapons" are defined as any instrument of
combat, or any object not designed as an instrument of combat but carried for
the purpose of inflicting or threatening bodily injury. Examples include but
are not limited to firearms, knives with fixed blades or pocket knives with
blades longer than four inches, razors, metal knuckles, blackjacks, hatchets,
bows and arrows, nun chahkas, foils, stun weapons, or any explosive or
incendiary device. Stun weapon is defined as any device that emits a momentary
or pulsed output that is electrical, audible, optical, or electromagnetic in
nature and that is designed to temporarily incapacitate a person.
8VAC75-20-20. Possession of weapons prohibited.
The university's employees, students, and volunteers are
prohibited from carrying, maintaining, or storing a firearm or weapon on any
university property. Any visitor or other third party attending a sporting,
entertainment, or educational event, or visiting an academic or administrative
office building, dining facility, or residence hall, is prohibited from
carrying, maintaining, or storing a firearm or weapon on any university
facility, even if the owner has a valid permit. This prohibition also applies
to all events on campus where people congregate in any public or outdoor areas.
Any such individual who is reported or discovered to
possess a firearm or weapon on university property will be asked to remove it
immediately from university property. Failure to comply may result in a student
conduct referral, an employee disciplinary action, or arrest.
8VAC75-20-30. Exceptions to prohibition.
The following groups are exempted from this regulation:
1. Employees may possess or carry a firearm or weapon only
if the employee is:
a. Required to possess the firearm or weapon as a part of
the employee's job duties with Radford University;
b. Using the firearm or weapon in conjunction with training
received by the employee in order to perform the responsibilities of his job
with the university;
c. A certified and sworn police officer employed by the
Radford University Police Department;
d. Currently a sworn and certified state or federal law
enforcement officer who carries proper identification; or
e. Participating in a program sponsored by the Radford
University Police Department, wherein the firearms are provided by the
department and utilized only during supervision by the department.
2. Students may possess and use appropriate tools, such as
saws, knives, and other such implements, necessary for the performance of their
job duties or school work, or for student recreational purposes approved under
university policy or while participating in a program sponsored by the Radford
University Police Department wherein the firearms are provided by the
department and utilized only during supervision by the department.
3. The Chief of the Radford University Police Department,
or his designee, may authorize in writing a student or employee to store a
firearm or weapon covered by this chapter with the Radford University Police
Department. A request for permission pursuant to this exception shall be
addressed in advance to the Chief of the Radford University Police Department,
or his designee, where it will be evaluated on a case-by-case basis in
accordance with state and federal law, university policy and procedure, and the
safety of the university community.
4. Contractors and others on campus whose duties require
possession and use of construction equipment, including but not limited to
pneumatic nail guns, may possess and use such equipment only in performance of
their job duties through a valid contractual or legal relationship with Radford
University.
8VAC75-20-40. Person lawfully in charge.
In addition to individuals authorized by university
policy, Radford University police officers, and other police officers acting
pursuant to a mutual aid agreement or by concurrent jurisdiction, 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. R13-3422; Filed October 1, 2012, 10:21 p.m.
w –––––––––––––––––– w
TITLE 9. ENVIRONMENT
STATE AIR POLLUTION CONTROL BOARD
Final Regulation
REGISTRAR'S NOTICE:
The following regulatory action is exempt from the Administrative Process Act
in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which
excludes regulations that are necessary to meet the requirements of federal law
or regulations provided such regulations do not differ materially from those
required by federal law or regulation. The Air Pollution Control Board will
receive, consider, and respond to petitions by any interested person at any
time with respect to reconsideration or revision.
Titles of Regulations: 9VAC5-20. General Provisions (amending 9VAC5-20-204).
9VAC5-30. Ambient Air Quality Standards (amending 9VAC5-30-55).
Statutory Authority:
9VAC5-20-204: § 10.1-1308
of the Code of Virginia; § 110 and 182 of the Clean Air Act; 40 CFR Part
51.
9VAC5-30-55: § 10.1-1308
of the Code of Virginia; §§ 108, 109 and 302 of the Clean Air Act; 40 CFR
Parts 50, 53 and 58.
Effective Date: November 21, 2012.
Agency Contact: Karen G. Sabasteanski, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4426, FAX (804) 698-4510, TTY (804) 698-4021, or email
karen.sabasteanski@deq.virginia.gov.
Summary:
The Northern Virginia ozone nonattainment area was
originally classified as moderate for the 1997 8-hour (0.08 parts per million)
ozone standard. The 8-hour ozone standard was revised to 0.075 parts per
million in 2008, and on May 21, 2012, the U.S. Environmental Protection Agency
(EPA) accordingly established air quality designations for this standard (77 FR
30088). As part of this designation process, Northern Virginia has been
classified as marginal for the 2008 standard. In addition, on May 21, 2012, EPA
provided for the revocation of the 1997 standard for transportation conformity
purposes (77 FR 30160). The list of nonattainment areas in 9VAC5-20-204 and the
1997 standards for ozone specified in 9VAC5-30-55 are amended to reflect these
new federal requirements.
9VAC5-20-204. Nonattainment areas.
A. Nonattainment areas are geographically defined below by
locality for the criteria pollutants indicated. Following the name of each
ozone nonattainment area, in parentheses, is the classification assigned
pursuant to § 181(a) of the federal Clean Air Act (42 USC § 7511(a)) and,
40 CFR 51.903(a), and 40 CFR 51.1103(a).
1. Ozone (1-hour).
Northern Virginia Ozone Nonattainment Area (severe).
|
|
Arlington County
Fairfax County
Loudoun County
Prince William County
Stafford County
Alexandria City
Fairfax City
Falls Church City
Manassas City
Manassas Park City
|
2. Ozone (8-hour) (8-hour, 0.08 ppm).
Northern Virginia Ozone Nonattainment Area (moderate).
|
|
Arlington County
Fairfax County
Loudoun County
Prince William County
Alexandria City
Fairfax City
Falls Church City
Manassas City
Manassas Park City
|
3. Ozone (8-hour, 0.075 ppm)
Northern Virginia Ozone Nonattainment Area (marginal).
|
|
Arlington County
Fairfax County
Loudoun County
Prince William County
Alexandria City
Fairfax City
Falls Church City
Manassas City
Manassas Park City
|
3. 4. PM2.5 (particles with an
aerodynamic diameter less than or equal to a nominal 2.5 micrometers).
Northern Virginia PM2.5 Nonattainment Area.
|
|
Arlington County
Fairfax County
Loudoun County
Prince William County
Alexandria City
Fairfax City
Falls Church City
Manassas City
Manassas Park City
|
4. 5. All other pollutants.
None.
B. Subdivision A 1 of this section shall not be effective
after June 15, 2005.
9VAC5-30-55. Ozone (8-hour, 0.08 ppm).
A. The primary and secondary ambient air quality standard is
0.08 parts per million, daily maximum 8-hour average.
B. Ozone shall be measured by the reference method described
in Appendix D of 40 CFR Part 50, or other method designated as such, or by an equivalent
method.
C. The 8-hour primary and secondary ozone ambient air quality
standards are met at an ambient air quality monitoring site when the average of
the annual fourth-highest daily maximum 8-hour average ozone concentration is
less than or equal to 0.08 ppm, as determined in accordance with Appendix I of
40 CFR Part 50.
D. The standard set forth in subsection A of this section
shall no longer apply to an area for transportation conformity purposes after
July 20, 2013. The standard set forth in subsection A of this section shall
continue to remain applicable to all areas for all other purposes
notwithstanding the standard set forth in 9VAC5-30-56 A or the designation of
areas for the standard set forth in 9VAC5-30-56 A 3. Area designations and classifications
with respect to the standard set forth in subsection A of this section are set
forth in 9VAC5-20-204 A 2.
VA.R. Doc. No. R13-3232; Filed September 19, 2012, 3:10 p.m.
CHESAPEAKE BAY LOCAL ASSISTANCE BOARD
(ABOLISHED)
Final Regulation
REGISTRAR'S NOTICE:
This regulatory action is excluded from the Administrative Process Act in
accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes
regulations that are necessary to conform to changes in Virginia statutory law
where no agency discretion is involved. The Virginia Soil and Water
Conservation Board will receive, consider, and respond to petitions by any
interested person at any time with respect to reconsideration or revision.
Title of Regulation: 9VAC10-11. Public Participation
Guidelines (repealing 9VAC10-11-10 through 9VAC10-11-110).
Statutory Authority: § 10.1-2103 of the Code of
Virginia.
Effective Date: November 21, 2012.
Agency Contact: David C. Dowling, Policy and Planning
Director, Department of Conservation and Recreation, 203 Governor Street, Suite
302, Richmond, VA 23219, telephone (804) 786-2291, FAX (804) 786-6141, or email
david.dowling@dcr.virginia.gov.
Summary:
Chapters 785 and 819 of the 2012 Acts of Assembly abolished
the Chesapeake Bay Local Assistance Board and transferred its powers and duties
to the Virginia Soil and Water Conservation Board. This regulatory action
repeals the Public Participation Guidelines of the former Chesapeake Bay Local
Assistance Board.
VA.R. Doc. No. R13-3392; Filed October 3, 2012, 9:13 a.m.
STATE WATER CONTROL BOARD
Forms
NOTICE: Forms used
in administering the following regulation have been filed by the State Water
Control Board. The forms are not being published; however, online users of this
issue of the Virginia Register of Regulations may click on the name of the new
or amended form to access it. The forms are also available from the agency
contact or may be viewed at the Office of the Registrar of Regulations, General
Assembly Building, 2nd Floor, Richmond, Virginia 23219.
Titles of Regulations: 9VAC25-31. Virginia Pollutant
Discharge Elimination System (VPDES) Permit Regulation.
9VAC25-32. Virginia Pollution Abatement (VPA) Permit
Regulation.
Contact Information: Debra A. Miller, Policy Specialist,
Department of Environmental Quality, 629 East Main Street, Richmond, VA 23219,
telephone (804) 698-4209, FAX (804) 698-4346, or email
debra.miller@deq.virginia.gov.
FORMS (9VAC25-31)
VPDES Sewage
Sludge Permit Application Form (rev. 2000).
VPDES
Sewage Sludge Permit Application Form (rev. 9/12).
VPDES Sewage Sludge Permit
Application for Permit Reissuance (eff. 8/12).
Instructions for
VPDES Sewage Sludge Permit Application Form (rev. 2000).
Instructions
for VPDES Sewage Sludge Permit Application Form (rev. 9/12).
Application Form 1 - General
Information, Consolidated Permits Program, EPA Form 3510-1 (rev. 8/90).
Virginia State Water Control
Board Fish Farm Questionnaire (rev. 4/11).
Application Form 2A - NPDES
Form 2A Application for Permit to Discharge Municipal Wastewater, EPA Form
3510-2A (eff. 1/99).
Form 2B NPDES, Applications
for Permit to Discharge Wastewater Concentrated Animal Feeding Operations and
Aquatic Animal Production Facilities, EPA Form 3510-2B (rev. 11/08).
Application Form 2C -
Wastewater Discharge Information, Consolidated Permits Program, EPA Form
3510-2C (rev. 8/90).
Application Form 2D - New
Sources and New Dischargers: Application for Permit to Discharge Process
Wastewater, EPA Form 3510-2D (rev. 8/90).
Application Form 2E -
Facilities Which Do Not Discharge Process Wastewater, EPA Form 3510-2E (rev.
8/90).
Form 2F NPDES, Application for
Permit to Discharge Stormwater, Discharges Associated with Industrial Activity,
EPA Form 3510-2F (rev. 1/92).
Local Government Ordinance
Form (eff. 2000).
Local Government Certification
Form for New Municipal Solid Waste Landfill Permits (eff. 2006).
FORMS (9VAC25-32)
Virginia Pollution Abatement Permit
Application, General Instructions (rev. 4/09).
Virginia Pollution Abatement
Permit Application, Form A, All Applicants (rev. 4/09).
Virginia Pollution Abatement
Permit Application, Form B, Animal Waste (rev. 10/95).
Virginia Pollution Abatement
Permit Application, Form C, Industrial Waste (rev. 10/95).
Virginia
Pollution Abatement Permit Application, Form D, Municipal Effluent and
Biosolids (rev. 4/09).
Virginia
Pollution Abatement Permit Application, Form D, Municipal Effluent and
Biosolids (rev. 9/12).
Application for Land
Application Supervisor Certification (rev. 2/11).
Application for Renewal of
Land Application Supervisor Certification (rev. 2/11).
VA.R. Doc. No. R13-3400; Filed September 19, 2012, 3:19 p.m.
Final Regulation
REGISTRAR'S NOTICE:
The State Water Control Board is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4006 A 8 of the Code of Virginia,
which exempts general permits issued by the State Water Control Board pursuant
to the State Water Control Law (§ 62.1-44.2 et seq.), Chapter 24 (§ 62.1-242
et seq.) of Title 62.1, and Chapter 25 (§ 62.1-254 et seq.) of Title 62.1
of the Code of Virginia if the board (i) provides a Notice of Intended
Regulatory Action in conformance with the provisions of § 2.2-4007.01;
(ii) following the passage of 30 days from the publication of the Notice of
Intended Regulatory Action forms a technical advisory committee composed of
relevant stakeholders, including potentially affected citizens groups, to
assist in the development of the general permit; (iii) provides notice and
receives oral and written comment as provided in § 2.2-4007.03; and (iv)
conducts at least one public hearing on the proposed general permit.
Title of Regulation: 9VAC25-120. General Virginia
Pollutant Discharge Elimination System (VPDES) Permit Regulation for Discharges
from Petroleum Contaminated Sites, Groundwater Remediation and Hydrostatic Tests (amending 9VAC25-120-10, 9VAC25-120-20,
9VAC25-120-50, 9VAC25-120-60, 9VAC25-120-70, 9VAC25-120-80; adding
9VAC25-120-15).
Statutory Authority: § 62.1-44.15 of the Code of
Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
Effective Date: February 26, 2013.
Agency Contact: Burton Tuxford, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4086, FAX (804) 698-4032, or email
burton.tuxford@deq.virginia.gov.
Summary:
The changes to the regulation make the general VPDES permit
similar to other general permits issued recently and clarify and update permit
limits and conditions.
The amendments (i) add coverage under the permit for
hydrostatic tests of water storage tanks and pipelines; (ii) add two reasons
why a facility's discharge would not be eligible for coverage under the permit;
(iii) add language to allow for administrative continuance of coverage under
the general permit; (iv) add a provision that allows specified short term
projects (14 days or less in duration) and hydrostatic test discharges to be
automatically covered under the permit without the requirement to submit a
registration statement, and require that the owner notify the department within
14 days of the discharge's completion; (v) consolidate the permit Part I A
Effluent Limitations and Monitoring Requirements for "Gasoline
Contaminated Discharges" into one limits table, and discharges
"Contaminated by Petroleum Products Other Than Gasoline" into one
limits table; and recalculate the effluent limits in the combined tables to be
at the most protective levels for the discharge type and to protect all
receiving waters based on an analysis of water quality criteria, toxicity data,
and best professional judgment; and (vi) add permit special conditions for: (a)
the required number of significant digits for reporting monitoring results, (b)
controlling discharges as necessary to meet water quality standards, (c) the
permittee's responsibility to comply with any other federal, state, or local
statute, ordinance, or regulation, (d) a requirement to submit discharge
monitoring reports to the owner of the municipal storm sewer system (MS4) if it
discharges to the MS4, and (e) a requirement to implement measures and controls
consistent with a TMDL requirement when the facility is subject to an approved
TMDL.
Substantive changes to the regulation since publication of
the proposed amendments (i) clarify the late registration statement provision;
(ii) more clearly define when an owner qualifies for "administrative
continuance" of the general permit coverage; (iii) change the flow
reporting units from MGD to GPD in 9VAC25-120-80, Part I, Tables 2 through 5;
(iv) modify test method information by (a) adding the test method reference
date back in for EPA SW 846 Method 8021B, (b) adding the test method
information for ethylene dibromide (EDB) in discharges to public water
supplies, and (c) adding EPA SW 846 Method 8015C (2000) to the list of
acceptable methods for analyzing ethanol and TPH; and (iv) clarify that the
chlorine monitoring and limit only apply where chlorinated water is used for
the hydrostatic test.
9VAC25-120-10. Definitions.
The words and terms used in this chapter shall have the
meanings defined in the State Water Control Law and 9VAC25-31 (VPDES permit
regulation) unless the context clearly indicates otherwise, except that for the
purposes of this chapter:
"Central wastewater treatment facilities" means any
facility that treats (for disposal, recycling, or recovery of materials) or
recycles hazardous or nonhazardous waste, hazardous or nonhazardous industrial
wastewater, or used material from offsite. This includes both a facility that
treats waste received from off-site exclusively, and a facility that treats
waste generated on-site as well as waste received from off site.
"Chlorinated hydrocarbon solvents" means solvents
containing carbon, hydrogen, and chlorine atoms and the constituents resulting
from the degradation of these chlorinated hydrocarbon solvents.
"Department" or "DEQ" means the
Virginia Department of Environmental Quality.
"Director" means the Director of the Virginia
Department of Environmental Quality, or an authorized representative.
"Petroleum products" means petroleum-based
substances comprised of a complex blend of hydrocarbons derived from crude oil
such as motor fuels, jet fuels, distillate fuel oils, residual fuel oils,
lubricants, petroleum solvents and used oils. "Petroleum products"
does not include hazardous waste as defined by the Virginia Hazardous Waste
Regulations (9VAC20-60).
"Total maximum daily load" or "TMDL"
means a calculation of the maximum amount of a pollutant that a waterbody can
receive and still meet water quality standards and an allocation of that amount
to the pollutant's sources. A TMDL includes wasteload allocations (WLAs) for
point source discharges, and load allocations (LAs) for nonpoint sources or
natural background or both, and must include a margin of safety (MOS) and
account for seasonal variations.
9VAC25-120-15. Applicability of incorporated references
based on the dates that they became effective.
Except as noted, when a regulation of the U.S.
Environmental Protection Agency (EPA) set forth in Title 40 of the Code of
Federal Regulations is referenced or adopted herein and incorporated by
reference, that regulation shall be as it exists and has been published as a
final regulation in the Federal Register prior to July 1, 2012, with the
effective date as published in the Federal Register notice or February 26, 2013,
whichever is later.
9VAC25-120-20. Purpose.
This general permit regulation governs the discharge of
wastewaters from sites contaminated by petroleum products, chlorinated
hydrocarbon solvents, and the hydrostatic testing of petroleum and
natural gas storage tanks and pipelines, and the hydrostatic testing of
water storage tanks and pipelines. These wastewaters may be discharged from
the following activities: excavation dewatering, purging groundwater
monitoring wells, conducting aquifer tests to characterize site conditions,
hydrostatic tests of natural gas and petroleum storage tanks or pipelines,
hydrostatic tests of underground and above ground storage tanks, pumping
contaminated groundwater to remove free product from the ground, or
discharges resulting from another petroleum product or chlorinated hydrocarbon
solvent cleanup activity approved by the department board,
hydrostatic tests of natural gas and petroleum storage tanks or pipelines,
hydrostatic tests of underground and above ground storage tanks, and
hydrostatic tests of water storage tanks and pipelines. Discharges not
associated with petroleum-contaminated water, water contaminated by chlorinated
hydrocarbon solvents, or hydrostatic tests are not covered under this general
permit.
9VAC25-120-50. Effective date of the permit.
This general permit will become effective on February 26, 2008
2013. This general permit will expire five years from the effective
date on February 25, 2018. This general permit is effective as to
any covered owner upon compliance with all the provisions of 9VAC25-120-60 and
the receipt of this general permit.
9VAC25-120-60. Authorization to discharge.
A. Any owner governed by this general permit is hereby authorized
to discharge to surface waters within the Commonwealth of Virginia provided
that the:
1. The owner files and receives acceptance by the
board of the submits a registration statement of, if
required to do so, in accordance with 9VAC25-120-70, and that
registration statement is accepted by the board;
2. The owner complies with the applicable effluent
limitations and other requirements of 9VAC25-120-80,; and provided
that:
3. The board has not notified the owner that the discharge
is not eligible for coverage in accordance with subsection B of this section.
B. The board will notify an owner that the discharge is
not eligible for coverage under this general permit in the event of any of the
following:
1. Individual permit. The owner has not been is
required to obtain an individual permit according to in accordance
with 9VAC25-31-170 B of the VPDES Permit Regulation;
2. Prohibited discharge locations. The owner shall
not be authorized by this general permit is proposing to discharge
within five miles upstream of a public water supply intake or to state waters
specifically named in other board regulations or policies which prohibit
such discharges; and
3. Central wastewater treatment facilities. The owner shall
not be authorized by this general permit is proposing to discharge
to surface waters where there are permitted central wastewater treatment
facilities reasonably available, as determined by the board;
4. The discharge violates or would violate the
antidegradation policy in the Water Quality Standards at 9VAC25-260-30; or
5. The discharge is not consistent with the assumptions and
requirements of an approved TMDL.
B. Receipt of C. Compliance with this general
permit constitutes compliance with the federal Clean Water Act, the State Water
Control Law, and applicable regulations under either with the exceptions stated
in 9VAC25-31-60 of the VPDES Permit Regulation. Approval for coverage under
this general permit does not relieve any owner of the responsibility to comply
with any other appropriate applicable federal, state or local
statute, ordinance or regulation.
D. Continuation of permit coverage.
1. Any owner that was authorized to discharge under the
petroleum contaminated sites, groundwater remediation, and hydrostatic tests
general permit issued in 2008 and that submits a complete registration
statement on or before February 26, 2013, is authorized to continue to
discharge under the terms of the 2008 general permit until such time as the
board either:
a. Issues coverage to the owner under this general permit;
or
b. Notifies the owner that the discharge is not eligible
for coverage under this general permit.
2. When the owner that was covered under the expiring or
expired general permit has violated or is violating the conditions of that permit,
the board may choose to do any or all of the following:
a. Initiate enforcement action based upon the general
permit that has been continued;
b. Issue a notice of intent to deny coverage under the
amended general permit. If the general permit coverage is denied, the owner
would then be required to cease the discharges authorized by the continued
general permit or be subject to enforcement action for discharging without a
permit;
c. Issue an individual permit with appropriate conditions;
or
d. Take other actions authorized by the VPDES Permit
Regulation (9VAC25-31).
9VAC25-120-70. Registration statement.
The owner shall file a complete VPDES general permit
registration statement for discharges from petroleum contaminated sites, ground
water remediation, and hydrostatic tests. Any owner proposing a new discharge
shall file a complete registration statement at least 30 days prior to the date
planned for commencing operation of the new discharge. Any owner of an existing
discharge covered by an individual VPDES permit who is proposing to be covered
by this general permit shall file the registration statement at least 180 days
prior to the expiration date of the individual VPDES permit. Any owner of an
existing discharge not currently covered by a VPDES permit who is proposing to
be covered by this general permit shall file a complete registration statement.
The required registration statement shall contain the following information:
A. Any owner seeking coverage under this general permit
who is required to submit a registration statement shall submit a complete
VPDES general permit registration statement in accordance with this section,
which shall serve as a notice of intent for coverage under the general VPDES
permit for discharges from petroleum contaminated sites, ground water
remediation, and hydrostatic tests.
B. Owners of the following types of proposed or existing
discharges are not required to submit a registration statement to apply for
coverage under this general permit:
1. Short term projects (14 days or less in duration)
including:
a. Emergency repairs;
b. Dewatering projects;
c. Utility work and repairs in areas of known
contamination;
d. Tank placement or removal in areas of known
contamination;
e. Pilot studies or pilot tests, including aquifer tests;
and
f. New well construction discharges of groundwater;
2. Hydrostatic testing of petroleum and natural gas storage
tanks and pipelines; and
3. Hydrostatic testing of water storage tanks and
pipelines.
Owners of these types of discharges are authorized to
discharge under this permit immediately upon the permit's effective date of
February 26, 2013.
Owners shall notify the department's regional office in
writing within 14 days of the completion of the discharge. The notification
shall include the owner's name and address, the type of discharge that
occurred, the physical location of the discharge work, and the receiving
stream. If the discharge is to a municipal separate storm sewer system (MS4),
the owner shall also notify the MS4 owner within 14 days of the completion of
the discharge.
Owners of these types of discharges are not required to
submit a notice of termination at the completion of the discharge.
C. Deadlines for submitting registration statements.
1. New facilities. Any owner proposing a new discharge
shall submit a complete registration statement at least 30 days prior to the
date planned for commencing operation of the new discharge, unless exempted by
subsection B of this section.
2. Existing facilities.
a. Any owner covered by an individual VPDES permit who is
proposing to be covered by this general permit shall submit a complete
registration statement at least 210 days prior to the expiration date of the
individual VPDES permit.
b. Any owner that was authorized to discharge under the
petroleum contaminated sites, ground water remediation, and hydrostatic tests
general VPDES permit that became effective on February 26, 2008, who is not
exempted under subsection A of this section and who intends to continue coverage
under this general permit shall submit a complete registration statement to the
board on or before January 27, 2013.
D. Late registration statements. [ Late
registration Registration ] statements will be accepted
[ after February 26, 2013 ], but authorization to discharge
will not be retroactive. Owners described in subdivision C 2 b of this section
that submit [ late ] registration statements [ after
January 27, 2013, ] are authorized to discharge under the
provisions of 9VAC25-120-60 D if a complete registration statement is submitted
on or before February 26, 2013.
E. The required registration statement shall contain the
following information:
1. Legal name of facility;
2. Location of facility, address, and telephone number,
and email address (if available);
3. Facility owner name, address, and telephone number,
and email address (if available);
4. Nature of business conducted at the facility;
5. Type of petroleum or natural gas products, or
chlorinated hydrocarbon solvents causing or that caused the contamination;
6. Identification of activities that will result in a point
source discharge from the contaminated site;
7. Whether a site characterization report for the site has
been submitted to the Department of Environmental Quality;
8. Characterization or description of the wastewater or nature
of contamination including analytical data;
9. The location of the discharge point and identification of
the waterbody into which the discharge will occur. For linear projects, the
location of all the proposed discharge points along the project length and the
associated waterbody for each discharge point;
10. The frequency with which the discharge will occur (i.e.,
daily, monthly, continuously);
11. An estimate of how long each discharge will last;
12. An estimate of the total volume of wastewater to be
discharged;
13. An estimate of the flow rate of the discharge;
14. A diagram of the proposed wastewater treatment system
identifying the individual treatment units;
15. A USGS 7.5 minute topographic map or other equivalent
computer generated map that indicates the receiving waterbody name or
names, the discharge point or points, the property boundaries, as well as
springs, other surface waterbodies, drinking water wells, and public water
supplies that are identified in the public record or are otherwise known to the
applicant within a 1/2 mile radius of the proposed discharge or discharges.;
16. Whether the facility will discharge to a municipal
separate storm sewer system (MS4). If so, the name of the MS4 owner. The owner
of the facility shall notify the MS4 owner in writing of the existence of the
discharge within 30 days of coverage under the general permit and shall copy
the DEQ regional office with the notification. The notification shall include
the following information: the name of the facility, a contact person and phone
number, the location of the discharge, the nature of the discharge, and the
facility's VPDES general permit number;
17. Whether central wastewater facilities are available
to the site, and if so, whether the option of discharging to the central
wastewater facility has been evaluated and the results of that evaluation;
17. 18. Whether the facility currently has a
permit issued by the board, and if so, the permit number;
18. 19. Any applicable pollution complaint
number;
19. 20. A statement as to whether the material
being treated or discharged is certified as a hazardous waste under the
Virginia Hazardous Waste Regulation (9VAC20-60); and
20. 21. The following certification:
I certify under penalty of law that this document and all
attachments were prepared under my direction or supervision in accordance with
a system designed to assure that qualified personnel properly gather and
evaluate the information submitted. Based on my inquiry of the person or
persons who manage the system or those persons directly responsible for
gathering the information, the information submitted is to the best of my
knowledge and belief true, accurate, and complete. I am aware that there are
significant penalties for submitting false information including the
possibility of fine and imprisonment for knowing violations. I do also hereby
grant duly authorized agents of the Department of Environmental Quality, upon
presentation of credentials, permission to enter the property for the purpose
of determining the suitability of the general permit.
F. The registration statement shall be signed in
accordance with 9VAC25-31-110.
9VAC25-120-80. General permit.
Any owner whose request for coverage under this general
permit registration statement is accepted by the board, or who is
automatically authorized to discharge under this permit, shall comply with
the requirements of the general permit and be subject to all requirements of
9VAC25-31-170 B of the VPDES permit regulation. Not all pages of Part I A of
the general permit will apply to every permittee. The determination of which
pages apply will be based on the type of contamination at the individual site
and the nature of the waters receiving the discharge. Part I B and all pages of
Part II apply to all permittees.
General Permit No.: VAG83
Effective Date: February 26, 2008 2013
Expiration Date: February 25, 2013 2018
GENERAL VPDES PERMIT FOR DISCHARGES FROM PETROLEUM
CONTAMINATED SITES, GROUNDWATER REMEDIATION, AND HYDROSTATIC TESTS
AUTHORIZATION TO DISCHARGE UNDER THE VIRGINIA POLLUTANT
DISCHARGE ELIMINATION SYSTEM PERMIT PROGRAM AND THE VIRGINIA STATE WATER
CONTROL LAW
In compliance with the provisions of the Clean Water Act, as
amended, the State Water Control Law and regulations adopted pursuant thereto,
the owner is authorized to discharge to surface waters at the locations identified
in the accepted registration statement within the boundaries of the
Commonwealth of Virginia, except to designated public water supplies or waters
specifically named in other board regulations or policies which prohibit
such discharges.
The authorized discharge shall be in accordance with this
cover page, Part I - Effluent Limitations and Monitoring Requirements and Part
II - Conditions Applicable to All VPDES Permits, as set forth herein.
If there is any conflict between the requirements of a Department
of Environmental Quality board approved cleanup plan and this
permit, the requirements of this permit shall govern.
Part I
A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS.
1. SHORT TERM PROJECTS.
The following types of short
term projects (14 days or less in duration) are authorized under this permit:
a. Emergency repairs;
b. Dewatering projects(1);
c. Utility work and repairs in areas of known
contamination;
d. Tank placement or removal in areas of known
contamination;
e. Pilot studies or pilot tests, including aquifer tests;
and
f. New well construction discharges of groundwater.
Effluent limits for short term projects correspond to the
type of contamination at the project site and are given in Tables A 2 through A
5 below. The sampling frequency for these projects shall be once per project
term. Discharge monitoring reports for these projects are not required to be
submitted to the department, but shall be retained by the owner for a period of
at least three years from the completion date of the project.
Owners shall notify the department's regional office in
writing within 14 days of the completion of the project discharge. The
notification shall include the owner's name and address, the type of discharge
that occurred, the physical location of the project work, and the receiving
stream. If the discharge is to a municipal separate storm sewer system (MS4),
the owner shall also notify the MS4 owner within 14 days of the completion of
the discharge.
(1)Dewatering projects shall be managed to
ensure that they are discharging to an adequate channel or pipe and do not
cause erosion in the receiving stream.
Part I
A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS.
1. 2. GASOLINE CONTAMINATION -- FRESHWATER
RECEIVING WATERS NOT LISTED AS PUBLIC WATER SUPPLIES ALL RECEIVING
WATERS.
During the period beginning with the permittee's coverage
under this general permit and lasting until the permit's expiration date, the
permittee is authorized to discharge to freshwater receiving waterbodies
from outfall serial number XXXX. Samples taken in compliance with the
monitoring requirements specified below shall be taken at the following
location: outfall from the final treatment unit prior to mixing with any other
waters.
Such discharges shall be limited and monitored by the
permittee as specified below:
|
EFFLUENT
CHARACTERISTICS
|
DISCHARGE
LIMITATIONS
|
MONITORING
REQUIREMENTS
|
|
Instantaneous Minimum
|
Instantaneous Maximum
|
Frequency
|
Sample Type
|
|
Flow [ (MGD) (GPD) ]
|
NA
|
NL
|
1/Month (4)
|
Estimate
|
|
Benzene (μg/l)(1)
|
NA
|
50.0 12.0
|
1/Month (4)
|
Grab
|
|
Toluene (μg/l)(1)
|
NA
|
175.0 43.0
|
1/Month (4)
|
Grab
|
|
Ethylbenzene (μg/l)(1)
|
NA
|
320.0 4.3
|
1/Month (4)
|
Grab
|
|
Total Xylenes (μg/l)(1)
|
NA
|
33.0
|
1/Month (4)
|
Grab
|
|
MTBE (methyl tert-butyl ether)
(μg/l)(1)
|
NA
|
1,840.0
|
1/Month
|
Grab
|
|
Freshwaters not listed as
public water supplies and saltwater
|
NA
|
440.0
|
1/Month(4)
|
Grab
|
|
Freshwaters listed as public
water supply
|
NA
|
15.0
|
2/Month(4)
|
Grab
|
|
pH (standard units)
|
6.0
|
9.0
|
1/Month (4)
|
Grab
|
|
Total Recoverable Lead
(μg/l)(2)
|
NA
|
e(1.273(ln hardness))
-3.259
|
1/Month
|
Grab
|
|
Freshwaters not listed as
public water supplies and saltwater
|
NA
|
e(1.273(ln hardness))
-3.259
|
(4)
|
Grab
|
|
Freshwaters listed as public
water supply
|
NA
|
Lower of e(1.273(ln
hardness)) -3.259 or 15
|
(4)
|
Grab
|
|
Hardness (mg/l CaCO3)(2)
|
NL
|
NA
|
1/Month (4)
|
Grab
|
|
Ethylene Dibromide (μg/l)(2)
|
NA
|
5.3
|
1/Month
|
Grab
|
|
Freshwaters not listed as
public water supplies and saltwater
|
NA
|
1.9
|
1/Month(4)
|
Grab
|
|
Freshwaters listed as public
water supply
|
NA
|
0.161
|
2/Month(4)
|
Grab
|
|
1,2 Dichloroethane (μg/l)(2)
|
NA
|
990.0 3.8
|
1/Month (4)
|
Grab
|
|
Ethanol (μg/l)(3)
|
NA
|
4100.0
|
1/Month (4)
|
Grab
|
NL = No limitation, monitoring required
NA = Not applicable
(1)Benzene, Toluene,
Ethylbenzene, Total Xylenes and MTBE shall be analyzed according to a current
and appropriate EPA Wastewater Method (40 CFR Part 136, 2007) (40 CFR
Part 136) or EPA SW 846 Method 8021B [ (1996) ].
(2)Monitoring for this
parameter is required only when contamination results from leaded fuel. Lead
shall be analyzed according to a current and appropriate EPA Wastewater Method (40
CFR Part 136, 2007) or EPA SW 846 Method 9040C (2004) (40 CFR Part 136).
The minimum hardness concentration that will be used to determine the lead
effluent limit is 25 mg/l. 1,2 dichloroethane and [ EDB ethylene
dibromide (EDB) ] shall be analyzed by a current and appropriate EPA
SW 846 Method or EPA Wastewater Method from 40 CFR Part 136 (2007).
[ EDB in wastewaters discharged to public water supplies shall be
analyzed using EPA SW 846 Method 8011 (1992) or EPA Drinking Water Method 504.1
(1995). ]
(3)Monitoring for ethanol
is only required for discharges of water contaminated by gasoline containing
greater than 10% ethanol. Ethanol shall be analyzed according to [ EPA
SW 846 Method 8015C (2000) or ] EPA SW 846 Method 8015C (2007) or EPA
SW 846 Method 8260B (1996). Monitoring frequency shall be 1/month in the
first year of permit coverage. If the first year results demonstrate full
compliance with the effluent limitations, the permittee may request that the
monitoring frequency for ethanol be reduced from monthly to 1/quarter. The
written request shall be sent to the appropriate regional office for review.
Upon written notification from the DEQ regional office, monitoring frequency
shall be reduced to 1/quarter. Should the permittee be issued a warning letter
related to violation of effluent limitations, a notice of violation, or be the
subject of an active enforcement action, monitoring frequency for ethanol shall
revert to 1/month, upon issuance of the letter or notice or initiation of the
enforcement action and remain in effect until the permit's expiration date.
Reports of quarterly monitoring shall be submitted to the DEQ regional office
no later than the 10th day of April, July, October and January.
(4)The monitoring frequency for discharges into
freshwaters not listed as public water supplies and saltwater shall be once per
month. If the first year results demonstrate full compliance with the effluent
limitations, the permittee may request that the monitoring frequency for
ethanol be reduced from monthly to 1/quarter. The written request shall be sent
to the appropriate DEQ regional office for review. Upon written notification
from the regional office, monitoring frequency shall be reduced to 1/quarter.
Should the permittee be issued a warning letter related to violation of
effluent limitations or a notice of violation, or be the subject of an active
enforcement action, monitoring frequency for ethanol shall revert to 1/month
upon issuance of the letter or notice or initiation of the enforcement action
and remain in effect until the permit's expiration date. Reports of quarterly
monitoring shall be submitted to the DEQ regional office no later than the 10th
day of April, July, October, and January.
The monitoring frequency for discharges into freshwaters
listed as public water supplies shall be twice per month for all constituents
or parameters. If the first year's results demonstrate full compliance with the
effluent limitations, the permittee may request that the monitoring frequency
for ethanol be reduced to 1/quarter and the other parameters to 1/month. The
written request shall be sent to the appropriate DEQ regional office for
review. Upon written notification from the regional office, the monitoring
frequency for ethanol shall be reduced to 1/quarter and the other parameters
to1/month. Should the permittee be issued a warning letter related to violation
of effluent limitations or a notice of violation, or be the subject of an
active enforcement action, monitoring frequency shall revert to 2/month upon
issuance of the letter or notice or initiation of the enforcement action and
remain in effect until the permit's expiration date. Reports of quarterly
monitoring shall be submitted to the DEQ regional office no later than the 10th
day of April, July, October, and January.
Part I
A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS.
2. GASOLINE CONTAMINATION -- FRESHWATER RECEIVING WATERS
LISTED AS PUBLIC WATER SUPPLIES.
During the period beginning with the permittee's coverage
under this general permit and lasting until the permit's expiration date, the
permittee is authorized to discharge to freshwater receiving waterbodies from
outfall serial number xxxx. Samples taken in compliance with the monitoring
requirements specified below shall be taken at the following location: outfall
from the final treatment unit prior to mixing with any other waters.
Such discharges shall be limited and monitored by the
permittee as specified below:
|
EFFLUENT CHARACTERISTICS
|
DISCHARGE LIMITATIONS
|
MONITORING REQUIREMENTS
|
|
Instantaneous Minimum
|
Instantaneous Maximum
|
Frequency
|
Sample Type
|
|
Flow (MGD)
|
NA
|
NL
|
2/Month4
|
Estimate
|
|
Benzene (μg/l)1
|
NA
|
12.0
|
2/Month4
|
Grab
|
|
Toluene (μg/l)1
|
NA
|
175.0
|
2/Month4
|
Grab
|
|
Ethylbenzene (μg/l)1
|
NA
|
320.0
|
2/Month4
|
Grab
|
|
Total Xylenes (μg/l)1
|
NA
|
33.0
|
2/Month4
|
Grab
|
|
MTBE (methyl tert-butyl
ether) (μg/l)1
|
NA
|
15.0
|
2/Month4
|
Grab
|
|
pH (standard units)
|
6.0
|
9.0
|
2/Month4
|
Grab
|
|
Total Recoverable Lead
(μg/l)2
|
NA
|
Lower of e(1.273(ln
hardness)) -3.259 or 15
|
2/Month4
|
Grab
|
|
Hardness (mg/l CaCO3)2
|
NL
|
NL
|
2/Month4
|
Grab
|
|
Ethylene Dibromide
(μg/l)2
|
NA
|
.169
|
2/Month4
|
Grab
|
|
1,2 Dichloroethane
(μg/l)2
|
NA
|
3.8
|
2/Month4
|
Grab
|
|
Ethanol (μg/l)3
|
NA
|
4100.0
|
2/Month5
|
Grab
|
NL = No limitation, monitoring required
NA = Not applicable
1Benzene, Toluene, Ethylbenzene, Total Xylenes
and MTBE shall be analyzed according to a current and appropriate EPA Method
(40 CFR Part 136, 2007) or EPA SW 846 Method 8021B (1996).
2Monitoring for this parameter is required only
when contamination results from leaded fuel. Lead shall be analyzed according
to a current and appropriate EPA Wastewater Method (40 CFR Part 136, 2007). The
minimum hardness concentration that will be used to determine the lead effluent
limit is 25 mg/l. EPA SW 846 Method 8011 (1992) or EPA Drinking Water Method
504.1 (1995) shall be used to analyze ethylene dibromide (EDB) in wastewaters
discharged to public water supplies. 1,2 dichloroethane shall be analyzed by a
current and appropriate EPA SW 846 Method or EPA Wastewater Method from 40 CFR
Part 136 (2007).
3Monitoring for ethanol is only required for
discharges of water contaminated by gasoline containing greater than 10% ethanol.
Ethanol shall be analyzed according to EPA SW 846 Method 8015C (2007) or EPA SW
846 Method 8260B (1996).
4Monitoring frequency shall be 2/month for the
first year of permit coverage. If the first year results demonstrate full
compliance with the effluent limitations, the permittee may request that the
monitoring frequency be reduced from 2/month to 1/month. The written request
shall be sent to the appropriate regional office for review. Upon written
notification from the DEQ regional office, monitoring frequency shall be
reduced to 1/month. Should the permittee be issued a warning letter related to
violation of effluent limitations, a notice of violation, or be the subject of
an active enforcement action, monitoring frequency shall revert to 2/month,
upon issuance of the letter or notice or initiation of the enforcement action
and remain in effect until the permit's expiration date.
5If the first year results demonstrate full
compliance with the effluent limitations, the permittee may request that the
monitoring frequency for ethanol be reduced from 2/month to 1/quarter. The
written request shall be sent to the appropriate regional office for review.
Upon written notification from the DEQ regional office, monitoring frequency
shall be reduced to 1/quarter. Should the permittee be issued a warning letter
related to violation of effluent limitations, a notice of violation, or be the
subject of an active enforcement action, monitoring frequency shall revert to
2/month, upon issuance of the letter or notice or initiation of the enforcement
action and remain in effect until the permit's expiration date. Reports of
quarterly monitoring shall be submitted to the DEQ regional office no later
than the 10th day of April, July, October, and January.
Part I
A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS.
3. CONTAMINATION BY PETROLEUM PRODUCTS OTHER THAN GASOLINE -- FRESHWATER
RECEIVING WATERS NOT LISTED AS PUBLIC WATER SUPPLIES ALL RECEIVING
WATERS.
During the period beginning with the permittee's coverage
under this general permit and lasting until the permit's expiration date, the
permittee is authorized to discharge to freshwater receiving waterbodies
from outfall serial number xxxx. Samples taken in compliance with the
monitoring requirements specified below shall be taken at the following
location: outfall from the final treatment unit prior to mixing with any other
waters.
Such discharges shall be limited and monitored by the
permittee as specified below:
|
EFFLUENT
CHARACTERISTICS
|
DISCHARGE
LIMITATIONS
|
MONITORING
REQUIREMENTS
|
|
Instantaneous Minimum
|
Instantaneous Maximum
|
Frequency
|
Sample Type
|
|
Flow [ (MGD)
(GPD) ]
|
NA
|
NL
|
1/Month (4)
|
Estimate
|
|
Naphthalene (μg/l)(1)
|
NA
|
10.0 8.9
|
1/Month (4)
|
Grab
|
|
Total Petroleum Hydrocarbons
(mg/l)(2)
|
NA
|
15.0
|
1/Month (4)
|
Grab
|
|
pH (standard units)
|
6.0
|
9.0
|
1/Month (4)
|
Grab
|
|
Benzene (μg/l)(3)
|
NA
|
12.0
|
2/Month(4)
|
Grab
|
|
MTBE (methyl tert-butyl
ether) (μg/l)(3)
|
NA
|
15.0
|
2/Month(4)
|
Grab
|
NL = No limitation, monitoring required
NA = Not applicable
(1)Naphthalene shall be
analyzed by a current and appropriate EPA Wastewater Method from 40 CFR Part
136 (2007) or a current and appropriate EPA SW 846 Method.
(2)TPH shall be analyzed
using [ EPA SW 846 Method 8015C (2000) or ] EPA SW 846
Method 8015C (2007) for diesel range organics, or by EPA SW 846 Method 8270D
(2007). If Method 8270D (2007) is used, the lab must report the total of
diesel range organics and polynuclear aromatic hydrocarbons.
(3)Monitoring for benzene and MTBE is only
required for discharges into freshwaters listed as public water supplies.
Benzene and MTBE shall be analyzed according to a current and appropriate EPA
Wastewater Method (40 CFR Part 136) or EPA SW 846 Method.
(4)The monitoring frequency for discharges into
freshwaters not listed as public water supplies and saltwater shall be once per
month.
The monitoring frequency for discharges into freshwaters
listed as public water supplies shall be twice per month for all constituents
or parameters. If the first year's results demonstrate full compliance with the
effluent limitations, the permittee may request that the monitoring frequency
be reduced to once per month. The written request shall be sent to the
appropriate DEQ regional office for review. Upon written notification from the regional
office, the monitoring frequency for ethanol shall be reduced to 1/quarter or
the other parameters to1/month. Should the permittee be issued a warning letter
related to violation of effluent limitations or a notice of violation, or be
the subject of an active enforcement action, monitoring frequency shall revert
to 2/month upon issuance of the letter or notice or initiation of the
enforcement action and remain in effect until the permit's expiration date.
Part I
A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS.
4. CONTAMINATION BY PETROLEUM PRODUCTS OTHER THAN GASOLINE
-- FRESHWATER RECEIVING WATERS LISTED AS PUBLIC WATER SUPPLIES.
During the period beginning with the permittee's coverage
under this general permit and lasting until the permit's expiration date, the
permittee is authorized to discharge to freshwater receiving waterbodies from
outfall serial number xxxx. Samples taken in compliance with the monitoring
requirements specified below shall be taken at the following location: outfall from
the final treatment unit prior to mixing with any other waters.
Such discharges shall be limited and monitored by the
permittee as specified below:
|
EFFLUENT CHARACTERISTICS
|
DISCHARGE LIMITATIONS
|
MONITORING REQUIREMENTS
|
|
Instantaneous Minimum
|
Instantaneous Maximum
|
Frequency
|
Sample Type
|
|
Flow (MGD)
|
NA
|
NL
|
2/Month4
|
Estimate
|
|
Naphthalene (μg/l)1
|
NA
|
10.0
|
2/Month4
|
Grab
|
|
Benzene (μg/l)2
|
NA
|
12.0
|
2/Month4
|
Grab
|
|
MTBE (methyl tert-butyl
ether)(μg/l)2
|
NA
|
15.0
|
2/Month4
|
Grab
|
|
Total Petroleum
Hydrocarbons (mg/l)3
|
NA
|
15.0
|
2/Month4
|
Grab
|
|
pH (standard units)
|
6.0
|
9.0
|
2/Month4
|
Grab
|
NL = No limitation, monitoring required
NA = Not applicable
1Naphthalene shall be analyzed by a current and
appropriate EPA Wastewater Method from 40 CFR Part 136 (2007) or a current and
appropriate EPA SW 846 Method.
2Benzene and MTBE shall be analyzed according to
a current and appropriate EPA Wastewater Method (40 CFR Part 136, 2007) or EPA
SW 846 Method.
3TPH shall be analyzed using EPA SW 846 Method
8015C (2007) for diesel range organics, or by EPA SW 846 Method 8270D (2007).
If Method 8270D is used, the lab must report the total of diesel range organics
and polynuclear aromatic hydrocarbons.
4Monitoring frequency shall be 2/month for the
first year of permit coverage. If the first year results demonstrate full
compliance with the effluent limitations, the permittee may request that the
monitoring frequency be reduced from 2/month to 1/month. The written request
shall be sent to the appropriate regional office for review. Upon written
notification from the DEQ regional office, monitoring frequency shall be
reduced to 1/month. Should the permittee be issued a warning letter related to
violation of effluent limitations, a notice of violation, or be the subject of
an active enforcement action, monitoring frequency shall revert to 2/month,
upon issuance of the letter or notice or initiation of the enforcement action
and remain in effect until the permit's expiration date.
Part I
A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS
5. 4. DISCHARGES OF HYDROSTATIC TEST WATERS --
ALL RECEIVING WATERS.
During the period beginning with the permittee's coverage
under this general permit and lasting until the permit's expiration date, the
permittee is authorized to discharge to receiving waterbodies from
outfall serial number xxxx. Samples taken in compliance with the monitoring
requirements specified below shall be taken at the following location: Outfall
from the final treatment unit prior to mixing with any other waters.
Such discharges shall be limited and monitored by the
permittee as specified below:
|
EFFLUENT CHARACTERISTICS
|
DISCHARGE LIMITATIONS
|
MONITORING REQUIREMENTS(2)
|
|
Instantaneous Minimum
|
Instantaneous Maximum
|
Frequency
|
Sample Type
|
|
Flow [ (MGD) (GPD) ]
|
NA
|
NL
|
1/discharge
|
Estimate
|
|
pH (standard units)
|
6.0
|
9.0
|
1/discharge
|
Grab
|
|
Total Petroleum Hydrocarbons
(TPH, mg/l) (1)
|
NA
|
15.0
|
1/discharge
|
Grab
|
|
Total Organic Carbon (TOC,
mg/l)
|
NA
|
NL
|
1/discharge
|
Grab
|
|
Total Residual Chlorine (TRC,
mg/l) [ (3) ]
|
NA
|
0.011 [ (3) ]
|
1/discharge
|
Grab
|
|
Total Suspended Solids (TSS)
|
NA
|
NL
|
1/discharge
|
Grab
|
NL = No limitation, monitoring required
NA = Not applicable
The equipment being tested shall be substantially free of
debris, raw material, product, or other residual materials.
The discharge flow shall be controlled in such a manner
that prevents flooding, erosion, or excessive sediment influx into the
receiving water body.
(1)TPH is the sum of
individual gasoline range organics and diesel range organics or TPH-GRO and
TPH-DRO to be measured by [ EPA SW 846 Method 8015C (2000) or ]
EPA SW 846 Method 8015C (2007) for gasoline and diesel range organics, or by
EPA SW 846 Methods 8260B (1996) and 8270D (2007). If the combination of
Methods 8260B and 8270D is used, the lab must report the total of gasoline
range organics, diesel range organics and polynuclear aromatic hydrocarbons
.
(2)Discharge monitoring reports for hydrostatic
test discharges are not required to be submitted to the department, but shall
be retained by the owner for a period of at least three years from the
completion date of the hydrostatic test.
Owners shall notify the department's regional office in
writing within 14 days of the completion of the hydrostatic test discharge. The
notification shall include the owner's name and address, the type of
hydrostatic test that occurred, the physical location of the test work, and the
receiving stream.
[ (3)Total Residual Chlorine
limitation of 0.011 mg/l and chlorine monitoring only apply to discharges of
test water that have been chlorinated or come from a chlorinated water supply. ]
Part I
A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS.
6. GASOLINE CONTAMINATION -- SALTWATER RECEIVING WATERS.
During the period beginning with the permittee's coverage
under this general permit and lasting until the permit's expiration date, the
permittee is authorized to discharge to saltwater receiving waterbodies from
outfall serial number xxxx. Samples taken in compliance with the monitoring
requirements specified below shall be taken at the following location: outfall
from the final treatment unit prior to mixing with any other waters.
Such discharges shall be limited and monitored by the
permittee as specified below:
|
EFFLUENT CHARACTERISTICS
|
DISCHARGE LIMITATIONS
|
MONITORING REQUIREMENTS
|
|
Instantaneous Minimum
|
Instantaneous Maximum
|
Frequency
|
Sample Type
|
|
Flow (MGD)
|
NA
|
NL
|
1/Month
|
Estimate
|
|
Benzene (μg/l)1
|
NA
|
50.0
|
1/Month
|
Grab
|
|
Toluene (μg/l)1
|
NA
|
500.0
|
1/Month
|
Grab
|
|
Ethylbenzene (μg/l)1
|
NA
|
4.3
|
1/Month
|
Grab
|
|
Total Xylenes (μg/l)1
|
NA
|
74.0
|
1/Month
|
Grab
|
|
MTBE (methyl tert-butyl
ether) (μg/l)1
|
NA
|
440.0
|
1/Month
|
Grab
|
|
pH (standard units)
|
6.0
|
9.0
|
1/Month
|
Grab
|
|
Total Recoverable Lead
(μg/l)2
|
NA
|
8.5
|
1/Month
|
Grab
|
|
Ethylene Dibromide
(μg/l)2
|
NA
|
5.3
|
1/Month
|
Grab
|
|
1,2 Dichloroethane
(μg/l)2
|
NA
|
990.0
|
1/Month
|
Grab
|
|
Ethanol (μg/l)3
|
NA
|
4100.0
|
1/Month3
|
Grab
|
NL = No limitation, monitoring required
NA = Not applicable
1Benzene, Toluene, Ethylbenzene, Total Xylenes
and MTBE shall be analyzed according to a current and appropriate EPA
Wastewater Method 602 (40 CFR Part 136, 2007) or EPA SW 846 Method 8021B
(1996).
2Monitoring for this parameter is required only
when contamination results from leaded fuel. Lead shall be analyzed according
to a current and appropriate EPA Wastewater Method 200.8 or 200.9 (40 CFR Part
136, 2007) or EPA SW 846 Method 7010 (2007). 1,2 dichloroethane and EDB
(surface waters that are not public water supplies) should be analyzed by a
current and appropriate EPA SW 846 Method or EPA Wastewater Method from 40 CFR
Part 136 (2007).
3Monitoring for ethanol is only required for
discharges of water contaminated by gasoline containing greater than 10%
ethanol. Ethanol shall be analyzed according to EPA SW 846 Method 8015C (2007)
or EPA SW 846 Method 8260B (1996). Monitoring frequency shall be 1/month in the
first year of permit coverage. If the first year results demonstrate full
compliance with the effluent limitations, the permittee may request that the
monitoring frequency be reduced from monthly to 1/quarter. The written request
shall be sent to the appropriate regional office for review. Upon written
notification from the DEQ regional office, monitoring frequency shall be
reduced to 1/quarter. Should the permittee be issued a warning letter related
to violation of effluent limitations, a notice of violation, or be the subject
of an active enforcement action, monitoring frequency shall revert to 1/month,
upon issuance of the letter or notice or initiation of the enforcement action
and remain in effect until the permit's expiration date. Reports of quarterly
monitoring shall be submitted to the DEQ regional office no later than the 10th
day of April, July, October and January.
Part I
A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS.
7. CONTAMINATION BY PETROLEUM PRODUCTS OTHER THAN GASOLINE
-- SALTWATER RECEIVING WATERS.
During the period beginning with the permittee's coverage
under this general permit and lasting until the permit's expiration date, the
permittee is authorized to discharge to saltwater receiving waterbodies from
outfall serial number xxxx. Samples taken in compliance with the monitoring
requirements specified below shall be taken at the following location: outfall
from the final treatment unit prior to mixing with any other waters.
Such discharges shall be limited and monitored by the
permittee as specified below:
|
EFFLUENT CHARACTERISTICS
|
DISCHARGE LIMITATIONS
|
MONITORING REQUIREMENTS
|
|
Instantaneous Minimum
|
Instantaneous Maximum
|
Frequency
|
Sample Type
|
|
Flow (MGD)
|
NA
|
NL
|
1/Month
|
Estimate
|
|
Naphthalene (μg/l)1
|
NA
|
8.9
|
1/Month
|
Grab
|
|
Total Petroleum
Hydrocarbons (mg/l)2
|
NA
|
15.0
|
1/Month
|
Grab
|
|
pH (standard units)
|
6.0
|
9.0
|
1/Month
|
Grab
|
NL = No limitation, monitoring required
NA = Not applicable
1Naphthalene shall be analyzed by a current and
appropriate EPA Wastewater Method from 40 CFR Part 136 (2007) or a current and
appropriate EPA SW 846 Method.
2TPH shall be analyzed using EPA SW 846 Method
8015C (2007) for diesel range organics or EPA SW 846 Method 8270D. If Method
8270D (2007) is used, the lab must report the total of diesel range organics
and polynuclear aromatic hydrocarbons.
Part I
A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS.
8. 5. CONTAMINATION BY CHLORINATED HYDROCARBON
SOLVENTS -- ALL RECEIVING WATERS.
During the period beginning with the permittee's coverage
under this general permit and lasting until the permit's expiration date, the
permittee is authorized to discharge to receiving waterbodies from
outfall serial number xxxx. Samples taken in compliance with the monitoring
requirements specified below shall be taken at the following location: outfall
from the final treatment unit prior to mixing with any other waters.
Such discharges shall be limited and monitored by the
permittee as specified below:
|
EFFLUENT CHARACTERISTICS
|
DISCHARGE LIMITATIONS
|
MONITORING REQUIREMENTS
|
|
Instantaneous Minimum
|
Instantaneous Maximum
|
Frequency
|
Sample Type
|
|
Flow [ (MGD) (GPD) ]
|
NA
|
NL
|
1/Month
|
Estimate
|
|
2/Month if public water
supply(2)
|
Estimate
|
|
Chloroform (CAS # 67663),
(μg/l)(1)
|
NA
|
100.0 80.0
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
1,1 Dichloroethane (CAS #
75343) (μg/l)(1)
|
NA
|
4.0 2.4
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
1,2 Dichloroethane (CAS #
107062) (μg/l)(1)
|
NA
|
3.8
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
1,1 Dichloroethylene (CAS #
75354) (μg/l)(1)
|
NA
|
7.0
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
cis-1,2 Dichloroethylene (CAS
# 159592) (μg/l)(1)
|
NA
|
70.0
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
trans 1,2 Dichloroethylene
(CAS # 156605) (μg/l)(1)
|
NA
|
100.0
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
Methylene Chloride (CAS #
75092) (μg/l)(1)
|
NA
|
5.0
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
Tetrachloroethylene (CAS #
127184) (μg/l)(1)
|
NA
|
5.0
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
1,1,1 Trichloroethane (CAS #
71556) (μg/l)(1)
|
NA
|
112.0 54.0
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
1,1,2 Trichloroethane (CAS #
79005) (μg/l)(1)
|
NA
|
5.0
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
Trichloroethylene (CAS #
79016) (μg/l)(1)
|
NA
|
5.0
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
Vinyl Chloride (CAS # 75014)
(μg/l)(1)
|
NA
|
2.0
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
Carbon Tetrachloride (CAS #
56235) (μg/l)(1)
|
NA
|
2.5 2.3
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
1,2 Dichlorobenzene (CAS #
95501) (μg/l)(1)
|
NA
|
15.8
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
Chlorobenzene (CAS # 108907)
(μg/l)(1)
|
NA
|
3.0 3.4
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
Trichlorofluoromethane (CAS #
75694) (μg/l)(1)
|
NA
|
5.0
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
Chloroethane (CAS # 75003)
(μg/l)(1)
|
NA
|
3.6
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
|
pH (standard units)
|
6.0
|
9.0
|
1/Month
|
Grab
|
|
2/Month if public water supply(2)
|
Grab
|
NL = No limitation, monitoring required
NA = Not applicable
(1)This constituent shall
be analyzed by a current and appropriate gas chromatograph/mass spectroscopy
method from EPA SW 846 or the EPA Wastewater Method series from 40 CFR Part 136
(2007).
(2)Monitoring frequency for
discharges into surface waters listed as public water supplies shall be
2/month for the first year of permit coverage. If the first year results
demonstrate full compliance with the effluent limitations, the permittee may
request that the monitoring frequency be reduced from 2/month to 1/month. The
written request shall be sent to the appropriate DEQ regional office for
review. Upon written notification from the DEQ regional office,
monitoring frequency shall be reduced to 1/month. Should the permittee be
issued a warning letter related to violation of effluent limitations, or
a notice of violation, or be the subject of an active enforcement action,
monitoring frequency shall revert to 2/month, upon issuance of the
letter or notice or initiation of the enforcement action and remain in effect
until the permit's expiration date.
Part I
B. Special conditions.
1. There shall be no discharge of floating solids or visible
foam in other than trace amounts.
2. The permittee shall sample each permitted outfall each
calendar month in which a discharge occurs. When no discharge occurs from an
outfall during a calendar month, the discharge monitoring report for that
outfall shall be submitted indicating "No Discharge."
3. O & M Manual. If the permitted discharge is through a
treatment works, within 30 days of coverage under this general permit, the
permittee shall develop and maintain on site, an Operations and Maintenance (O
& M) Manual for the treatment works permitted herein. This manual shall
detail practices and procedures which will be followed to ensure compliance
with the requirements of this permit. The permittee shall operate the treatment
works in accordance with the O & M Manual. The manual shall be made
available to the department upon request.
4. Operation schedule. The permittee shall construct, install
and begin operating the treatment works described in the registration statement
prior to discharging to surface waters. The permittee shall notify the
department's regional office within five days after the completion of installation
and commencement of operation.
5. Materials storage. Except as expressly authorized by this
permit or another permit issued by the board, no product, materials, industrial
wastes, or other wastes resulting from the purchase, sale, mining, extraction, transport,
preparation, or storage of raw or intermediate materials, final product,
by-product or wastes, shall be handled, disposed of, or stored so as to permit
a discharge of such product, materials, industrial wastes, or other wastes to
state waters.
6. If the permittee discharges to surface waters through a
municipal separate storm sewer system, the permittee shall, within 30 days of
coverage under this general permit, notify the owner of the municipal separate
storm sewer system in writing of the existence of the discharge and
provide the following information: the name and location of the
facility, a contact person and telephone phone number;,
the location of the discharge, the nature of the discharge;,
and the number of outfalls facility's VPDES general permit number. A
copy of such notification shall be provided to the department. Discharge
Monitoring Reports (DMRs) required to be submitted under this permit shall be
submitted to both the department and the owner of the municipal separate storm
sewer system.
7. Monitoring results shall be reported using the same
number of significant digits as listed in the permit. Regardless of the
rounding convention used by the permittee (e.g., five always rounding up or to
the nearest even number), the permittee shall use the convention consistently
and shall ensure that consulting laboratories employed by the permittee use the
same convention.
8. The discharges authorized by this permit shall be
controlled as necessary to meet applicable water quality standards.
9. Approval for coverage under this general permit does not
relieve any owner of the responsibility to comply with any other federal,
state, or local statute, ordinance, or regulation.
10. Discharges to waters with an approved "total
maximum daily load" (TMDL). Owners of facilities that are a source of the
specified pollutant of concern to waters where an approved TMDL has been
established shall implement measures and controls that are consistent with the
assumptions and requirements of the TMDL.
11. Termination of coverage. Provided that the department
board agrees that the discharge covered under this general permit is no
longer needed, the permittee may request termination of coverage under the
general permit, for the entire facility or for specific outfalls, by submitting
a request for termination of coverage. This request for termination of coverage
shall be sent to the department's regional office with appropriate
documentation or references to documentation already in the department's
possession. Upon the permittee's receipt of the regional director's approval,
coverage under this general permit will be terminated. Termination of coverage
under this general permit does not relieve the permittee of responsibilities
under other board regulations or directives.
Part II
Conditions Applicable To All VPDES Permits
A. Monitoring.
1. Samples and measurements taken as required by this permit
shall be representative of the monitored activity.
2. Monitoring shall be conducted according to procedures
approved under 40 CFR Part 136 or alternative methods approved by the U.S.
Environmental Protection Agency, unless other procedures have been specified in
this permit.
3. The permittee shall periodically calibrate and perform
maintenance procedures on all monitoring and analytical instrumentation at
intervals that will ensure accuracy of measurements.
4. Samples taken as required by this permit shall be
analyzed in accordance with 1VAC30-45, Certification for Noncommercial
Environmental Laboratories, or 1VAC30-46, Accreditation for Commercial
Environmental Laboratories.
B. Records.
1. Records of monitoring information shall include:
a. The date, exact place, and time of sampling or
measurements;
b. The individuals who performed the sampling or measurements;
c. The dates and times analyses were performed;
d. The individual or individuals who performed the analyses;
e. The analytical techniques or methods used; and
f. The results of such analyses.
2. Except for records of monitoring information required by
this permit related to the permittee's sewage sludge use and disposal
activities, which shall be retained for a period of at least five years, the
permittee shall retain records of all monitoring information, including all
calibration and maintenance records and all original strip chart recordings for
continuous monitoring instrumentation; copies of all reports required by this
permit; and records of all data used to complete the registration statement for
this permit for a period of at least three years from the date of the sample,
measurement, report or request for coverage. This period of retention shall be
extended automatically during the course of any unresolved litigation regarding
the regulated activity or regarding control standards applicable to the
permittee, or as requested by the board.
C. Reporting monitoring results.
1. The permittee shall submit the results of the monitoring
required by this permit not later than the 10th day of the month after
monitoring takes place unless another reporting schedule is specified elsewhere
in this permit. Monitoring results shall be submitted to the department's
regional office.
2. Monitoring results shall be reported on a Discharge
Monitoring Report (DMR) or on forms provided, approved or specified by the
department.
3. If the permittee monitors any pollutant specifically
addressed by this permit more frequently than required by this permit using
test procedures approved under 40 CFR Part 136 or using other test procedures
approved by the U.S. Environmental Protection Agency or using procedures
specified in this permit, the results of this monitoring shall be included in
the calculation and reporting of the data submitted in the DMR or reporting
form specified by the department.
4. Calculations for all limitations which require averaging of
measurements shall utilize an arithmetic mean unless otherwise specified in
this permit.
D. Duty to provide information. The permittee shall furnish
to the department, within a reasonable time, any information which the board
may request to determine whether cause exists for modifying, revoking and
reissuing, or terminating this permit or to determine compliance with this
permit. The board may require the permittee to furnish, upon request, such plans,
specifications, and other pertinent information as may be necessary to
determine the effect of the wastes from his discharge on the quality of state
waters or such other information as may be necessary to accomplish the purposes
of the State Water Control Law. The permittee shall also furnish to the
department upon request copies of records required to be kept by this permit.
E. Compliance schedule reports. Reports of compliance or
noncompliance with, or any progress reports on, interim and final requirements
contained in any compliance schedule of this permit shall be submitted no later
than 14 days following each schedule date.
F. Unauthorized discharges. Except in compliance with this
permit or another permit issued by the board, it shall be unlawful for any
person to:
1. Discharge into state waters sewage, industrial wastes,
other wastes, or any noxious or deleterious substances; or
2. Otherwise alter the physical, chemical or biological
properties of such state waters and make them detrimental to the public health,
to animal or aquatic life, to the use of such waters for domestic or industrial
consumption, for recreation, or for other uses.
G. Reports of unauthorized discharges. Any permittee who
discharges or causes or allows a discharge of sewage, industrial waste, other
wastes or any noxious or deleterious substance into or upon state waters in
violation of Part II F or who discharges or causes or allows a discharge that
may reasonably be expected to enter state waters in violation of Part II F
shall notify the department of the discharge immediately upon discovery of the
discharge, but in no case later than 24 hours after the discovery. A written
report of the unauthorized discharge shall be submitted to the department
within five days of discovery of the discharge. The written report shall
contain:
1. A description of the nature and location of the discharge;
2. The cause of the discharge;
3. The date on which the discharge occurred;
4. The length of time that the discharge continued;
5. The volume of the discharge;
6. If the discharge is continuing, how long it is expected to
continue;
7. If the discharge is continuing, what the expected total
volume of the discharge will be; and
8. Any steps planned or taken to reduce, eliminate and prevent
a recurrence of the present discharge or any future discharges not authorized
by this permit.
Discharges reportable to the department under the immediate
reporting requirements of other regulations are exempted from this requirement.
H. Reports of unusual or extraordinary discharges. If any
unusual or extraordinary discharge including a bypass or upset should occur
from a treatment works and the discharge enters or could be expected to enter
state waters, the permittee shall promptly notify, in no case later than 24
hours, the department by telephone after the discovery of the discharge. This
notification shall provide all available details of the incident, including any
adverse affects on aquatic life and the known number of fish killed. The
permittee shall reduce the report to writing and shall submit the report to the
department within five days of discovery of the discharge in accordance with
Part II I 2. Unusual and extraordinary discharges include but are not limited
to any discharge resulting from:
1. Unusual spillage of materials resulting directly or
indirectly from processing operations;
2. Breakdown of processing or accessory equipment;
3. Failure or taking out of service some or all of the
treatment works; and
4. Flooding or other acts of nature.
I. Reports of noncompliance. The permittee shall report any
noncompliance which may adversely affect state waters or may endanger public
health as follows:
1. An oral report shall be provided within 24 hours from the
time the permittee becomes aware of the circumstances. The following shall be
included as information which shall be reported within 24 hours under this
subsection:
a. Any unanticipated bypass; and
b. Any upset which causes a discharge to surface waters.
2. A written report shall be submitted within five days and
shall contain:
a. A description of the noncompliance and its cause;
b. The period of noncompliance including exact dates and times
and, if the noncompliance has not been corrected, the anticipated time it is
expected to continue; and
c. Steps taken or planned to reduce, eliminate, and prevent
reoccurrence of the noncompliance.
The board may waive the written report on a case-by-case basis
for reports of noncompliance under Part II I if the oral report has been
received within 24 hours and no adverse impact on state waters has been
reported.
3. The permittee shall report all instances of noncompliance
not reported under Part II I 1 or 2, in writing, at the time the next
monitoring reports are submitted. The reports shall contain the information
listed in Part II I 2.
NOTE: The immediate (within 24 hours) reports required in Part
II G, H and I may be made to the department's regional office. Reports may be
made by telephone or by, FAX, or online at http://www.deq.virginia.gov/Programs/PollutionResponsePreparedness/PollutionReportingForm.aspx.
For reports outside normal working hours, leave a message and this shall
fulfill the immediate reporting requirement. For emergencies, the Virginia
Department of Emergency Services maintains a 24-hour telephone service at
1-800-468-8892.
J. Notice of planned changes.
1. The permittee shall give notice to the department as soon
as possible of any planned physical alterations or additions to the permitted
facility. Notice is required only when:
a. The permittee plans an alteration or addition to any
building, structure, facility, or installation from which there is or may be a
discharge of pollutants, the construction of which commenced:
(1) After promulgation of standards of performance under § 306
of the Clean Water Act which are applicable to such source; or
(2) After proposal of standards of performance in accordance
with § 306 of the Clean Water Act which are applicable to such source, but only
if the standards are promulgated in accordance with § 306 of the Act within 120
days of their proposal;
b. The alteration or addition could significantly change the
nature or increase the quantity of pollutants discharged. This notification
applies to pollutants which are subject neither to effluent limitations nor to
notification requirements specified elsewhere in this permit; or
c. The alteration or addition results in a significant change
in the permittee's sludge use or disposal practices, and such alteration,
addition, or change may justify the application of permit conditions that are
different from or absent in the existing permit, including notification of
additional use or disposal sites not reported during the permit application
process or not reported pursuant to an approved land application plan.
2. The permittee shall give advance notice to the department
of any planned changes in the permitted facility or activity which may result
in noncompliance with permit requirements.
K. Signatory requirements.
1. Registration statement. All registration statements shall
be signed as follows:
a. For a corporation: by a responsible corporate officer. For
the purpose of this section, a responsible corporate officer means (i) a
president, secretary, treasurer, or vice-president of the corporation in charge
of a principal business function, or any other person who performs similar
policy-making or decision-making functions for the corporation or (ii) the
manager of one or more manufacturing, production, or operating facilities,
provided the manager is authorized to make management decisions that govern the
operation of the regulated facility including having the explicit or implicit
duty of making major capital investment recommendations, and initiating and
directing other comprehensive measures to assure long-term environmental
compliance with environmental laws and regulations; the manager can ensure that
the necessary systems are established or actions taken to gather complete and
accurate information for permit application requirements; and where authority
to sign documents has been assigned or delegated to the manager in accordance
with corporate procedures;
b. For a partnership or sole proprietorship: by a general
partner or the proprietor, respectively; or
c. For a municipality, state, federal, or other public agency:
by either a principal executive officer or ranking elected official. For
purposes of this section, a principal executive officer of a public agency
includes (i) the chief executive officer of the agency or (ii) a senior
executive officer having responsibility for the overall operations of a
principal geographic unit of the agency.
2. Reports. All reports required by permits, and other
information requested by the board shall be signed by a person described in
Part II K 1, or by a duly authorized representative of that person. A person is
a duly authorized representative only if:
a. The authorization is made in writing by a person described
in Part II K 1;
b. The authorization specifies either an individual or a
position having responsibility for the overall operation of the regulated
facility or activity such as the position of plant manager, operator of a well
or a well field, superintendent, position of equivalent responsibility, or an
individual or position having overall responsibility for environmental matters
for the company. A duly authorized representative thus may be either a named
individual or any individual occupying a named position; and
c. The written authorization is submitted to the department.
3. Changes to authorization. If an authorization under Part II
K 2 is no longer accurate because a different individual or position has
responsibility for the overall operation of the facility, a new authorization
satisfying the requirements of Part II K 2 shall be submitted to the department
prior to or together with any reports or information to be signed by an
authorized representative.
4. Certification. Any person signing a document under Parts II
K 1 or 2 shall make the following certification:
"I certify under penalty of law that this document and
all attachments were prepared under my direction or supervision in accordance
with a system designed to ensure that qualified personnel properly gather and
evaluate the information submitted. Based on my inquiry of the person or
persons who manage the system, or those persons directly responsible for
gathering the information, the information submitted is, to the best of my
knowledge and belief, true, accurate, and complete. I am aware that there are
significant penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations."
L. Duty to comply. The permittee shall comply with all
conditions of this permit. Any permit noncompliance constitutes a violation of
the State Water Control Law and the Clean Water Act, except that noncompliance
with certain provisions of this permit may constitute a violation of the State
Water Control Law but not the Clean Water Act. Permit noncompliance is grounds
for enforcement action; for permit termination, revocation and reissuance, or
modification; or denial of a permit renewal application.
The permittee shall comply with effluent standards or
prohibitions established under § 307(a) of the Clean Water Act for toxic
pollutants and with standards for sewage sludge use or disposal established
under § 405(d) of the Clean Water Act within the time provided in the
regulations that establish these standards or prohibitions or standards for
sewage sludge use or disposal, even if this permit has not yet been modified to
incorporate the requirement.
M. Duty to reapply. If the permittee wishes to continue an
activity regulated by this permit after the expiration date of this permit, the
permittee shall submit a new registration statement at least 180 30
days before the expiration date of the existing permit, unless permission for a
later date has been granted by the board. The board shall not grant permission
for registration statements to be submitted later than the expiration date of
the existing permit.
N. Effect of a permit. This permit does not convey any
property rights in either real or personal property or any exclusive
privileges, nor does it authorize any injury to private property or invasion of
personal rights, or any infringement of federal, state or local law or
regulations.
O. State law. Nothing in this permit shall be construed to
preclude the institution of any legal action under, or relieve the permittee
from any responsibilities, liabilities, or penalties established pursuant to
any other state law or regulation or under authority preserved by § 510 of the
Clean Water Act. Except as provided in permit conditions on
"bypassing" (Part II U) and "upset" (Part II V), nothing in
this permit shall be construed to relieve the permittee from civil and criminal
penalties for noncompliance.
P. Oil and hazardous substance liability. Nothing in this
permit shall be construed to preclude the institution of any legal action or
relieve the permittee from any responsibilities, liabilities, or penalties to
which the permittee is or may be subject under Article 11 (§ 62.1-44.34:14 et
seq.) of the State Water Control Law.
Q. Proper operation and maintenance. The permittee shall at
all times properly operate and maintain all facilities and systems of treatment
and control (and related appurtenances) which are installed or used by the
permittee to achieve compliance with the conditions of this permit. Proper
operation and maintenance also includes effective plant performance, adequate
funding, adequate staffing, and adequate laboratory and process controls,
including appropriate quality assurance procedures. This provision requires the
operation of back-up or auxiliary facilities or similar systems which are
installed by the permittee only when the operation is necessary to achieve
compliance with the conditions of this permit.
R. Disposal of solids or sludges. Solids, sludges or other
pollutants removed in the course of treatment or management of pollutants shall
be disposed of in a manner so as to prevent any pollutant from such materials
from entering state waters.
S. Duty to mitigate. The permittee shall take all reasonable
steps to minimize or prevent any discharge or sludge use or disposal in
violation of this permit which has a reasonable likelihood of adversely
affecting human health or the environment.
T. Need to halt or reduce activity not a defense. It shall
not be a defense for a permittee in an enforcement action that it would have
been necessary to halt or reduce the permitted activity in order to maintain
compliance with the conditions of this permit.
U. Bypass.
1. "Bypass" means the intentional diversion of waste
streams from any portion of a treatment facility. The permittee may allow any
bypass to occur which does not cause effluent limitations to be exceeded, but
only if it also is for essential maintenance to assure efficient operation.
These bypasses are not subject to the provisions of Part II U 2 and 3.
2. Notice.
a. Anticipated bypass. If the permittee knows in advance of
the need for a bypass, prior notice shall be submitted, if possible, at least
10 days before the date of the bypass.
b. Unanticipated bypass. The permittee shall submit notice of
an unanticipated bypass as required in Part II I.
3. Prohibition of bypass.
a. Bypass is prohibited, and the board may take enforcement
action against a permittee for bypass, unless:
(1) Bypass was unavoidable to prevent loss of life, personal
injury, or severe property damage;
(2) There were no feasible alternatives to the bypass, such as
the use of auxiliary treatment facilities, retention of untreated wastes, or
maintenance during normal periods of equipment downtime. This condition is not
satisfied if adequate back-up equipment should have been installed in the
exercise of reasonable engineering judgment to prevent a bypass which occurred
during normal periods of equipment downtime or preventive maintenance; and
(3) The permittee submitted notices as required under Part II
U 2.
b. The board may approve an anticipated bypass, after
considering its adverse effects, if the board determines that it will meet the
three conditions listed above in Part II U 3 a.
V. Upset.
1. An upset constitutes an affirmative defense to an action
brought for noncompliance with technology-based permit effluent limitations if
the requirements of Part II V 2 are met. A determination made during
administrative review of claims that noncompliance was caused by upset and
before an action for noncompliance is not a final administrative action subject
to judicial review.
2. A permittee who wishes to establish the affirmative defense
of upset shall demonstrate through properly signed, contemporaneous operating
logs or other relevant evidence that:
a. An upset occurred and that the permittee can identify the
cause or causes of the upset;
b. The permitted facility was at the time being properly
operated;
c. The permittee submitted notice of the upset as required in
Part II I; and
d. The permittee complied with any remedial measures required
under Part II S.
3. In any enforcement proceeding, the permittee seeking to
establish the occurrence of an upset has the burden of proof.
W. Inspection and entry. The permittee shall allow the
director or an authorized representative, upon presentation of credentials and
other documents as may be required by law, to:
1. Enter upon the permittee's premises where a regulated
facility or activity is located or conducted or where records must be kept
under the conditions of this permit;
2. Have access to and copy, at reasonable times, any records
that must be kept under the conditions of this permit;
3. Inspect at reasonable times any facilities, equipment
(including monitoring and control equipment), practices, or operations
regulated or required under this permit; and
4. Sample or monitor at reasonable times, for the purposes of
ensuring permit compliance or as otherwise authorized by the Clean Water Act
and the State Water Control Law any substances or parameters at any location.
For purposes of this section, the time for inspection shall
be deemed reasonable during regular business hours, and whenever the facility
is discharging. Nothing contained herein shall make an inspection unreasonable
during an emergency.
X. Permit actions. Permits may be modified, revoked and
reissued, or terminated for cause. The filing of a request by the permittee for
a permit modification, revocation and reissuance, or termination, or a
notification of planned changes or anticipated noncompliance does not stay any
permit condition.
Y. Transfer of permits.
1. Permits are not transferable to any person except after
notice to the department. Except as provided in Part II Y 2, a permit may be
transferred by the permittee to a new owner or operator only if the permit has
been modified or revoked and reissued, or a minor modification made, to
identify the new permittee and incorporate such other requirements as may be
necessary under the State Water Control Law and the Clean Water Act.
2. As an alternative to transfers under Part II Y 1, this
permit may be automatically transferred to a new permittee if:
a. The current permittee notifies the department at least
within 30 days in advance of the proposed transfer of the
title to the facility or property;
b. The notice includes a written agreement between the existing
and new permittees containing a specific date for transfer of permit
responsibility, coverage, and liability between them; and
c. The board does not notify the existing permittee and the
proposed new permittee of its intent to modify or revoke and reissue the
permit. If this notice is not received, the transfer is effective on the date
specified in the agreement mentioned in Part II Y 2 b.
Z. Severability. The provisions of this permit are severable,
and if any provision of this permit or the application of any provision of this
permit to any circumstance, is held invalid, the application of such provision
to other circumstances, and the remainder of this permit, shall not be affected
thereby.
DOCUMENTS INCORPORATED BY REFERENCE (9VAC25-120)
|
|
Method
|
Cite
|
|
|
200.8
200.9
504.1
7010
8011
8015C
8021B
8260B
8270D
9040C
|
40 CFR 136 (2007)
40 CFR 136 (2007)
EPA 600/R-95-131 (1995)
EPA SW 846 (2007)
EPA SW 846 (1992)
EPA SW 846 (2007)
EPA SW 846 (1996)
EPA SW 846 (1996)
EPA SW 846 (2007)
EPA SW 846 (2004)
|
Test Methods for Evaluating Solid Waste, Physical/Chemical
Methods, EPA Publication SW-846, U.S. Environmental Protection Agency, Third
Edition as amended by Final Updates I, II, IIA, IIB, IIIA, IIIB, IVA, and IVB,
National Technical Information Service (NTIS), 5285 Port Royal Road,
Springfield, VA 22161, (703) 605-6000 or (800) 553-6847, http://www.epa.gov/SW-846.
Method
7010 (February 2007)
Method
8011 (July 1992)
[ Method
8015C (November 2000) ]
Method
8015C (February 2007)
Method
8021B (December 1996)
Method
8260B (December 1996)
Method
8270D (February 2007)
Method
9040C (November 2004)
[ Methods for the Determination of Organic Compounds
in Drinking Water, Supplement III, EPA Publication 600/R-95/131 (August 1995),
U.S. Environmental Protection Agency, Office of Research and Development,
Washington, D.C. 20460.
Method
504.1, rev. 1.1 (August 1995) ]
VA.R. Doc. No. R11-2774; Filed September 28, 2012, 4:10 p.m.
Final Regulation
REGISTRAR'S NOTICE:
The State Water Control Board is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4006 A 8 of the Code of Virginia,
which exempts general permits issued by the State Water Control Board pursuant
to the State Water Control Law (§ 62.1-44.2 et seq.), Chapter 24
(§ 62.1-242 et seq.) of Title 62.1, and Chapter 25 (§ 62.1-254 et
seq.) of Title 62.1 if the board (i) provides a Notice of Intended Regulatory
Action in conformance with the provisions of § 2.2-4007.01; (ii) following
the passage of 30 days from the publication of the Notice of Intended
Regulatory Action forms a technical advisory committee composed of relevant
stakeholders, including potentially affected citizens groups, to assist in the
development of the general permit; (iii) provides notice and receives oral and
written comment as provided in § 2.2-4007.03; and (iv) conducts at least
one public hearing on the proposed general permit.
Title of Regulation: 9VAC25-196. General Virginia
Pollutant Discharge Elimination System (VPDES) Permit for Noncontact Cooling
Water Discharges of 50,000 Gallons Per Day or Less (amending 9VAC25-196-10 through 9VAC25-196-70;
adding 9VAC25-196-15).
Statutory Authority: § 62.1-44.15 of the Code of
Virginia; § 402 of the Clean Water Act; 40 CFR Parts 122, 123, and 124.
Effective Date: March 2, 2013.
Agency Contact: Burton Tuxford, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4086, FAX (804) 698-4032, TTY (804) 698-4021, or email
burton.tuxford@deq.virginia.gov.
Summary:
This rulemaking revises and reissues the existing general
permit, which expires on March 1, 2013, to continue its availability as a permitting
option for this type of discharger. This general permit establishes effluent
limitations and monitoring requirements for point source discharges of 50,000
gallons per day or less of noncontact cooling water and cooling equipment blow
down to surface waters. The changes to the regulation make this general permit
similar to other general permits issued recently and clarify and update permit
limits and conditions.
Substantive changes (i) add two reasons why a facility's
discharge would not be eligible for coverage; (ii) add language to allow for
administrative continuation of coverage; (iii) add effluent limitations for
copper, zinc, and silver for both freshwater and saltwater receiving streams;
(iv) add special conditions for the required number of significant digits for
reporting monitoring results, a requirement to implement measures and controls
consistent with a TMDL requirement when the facility is subject to an approved
TMDL, the notice of termination requirements, a requirement to control discharges
as necessary to meet water quality standards, and the permittee's
responsibility to comply with any other federal, state, or local statute,
ordinance, or regulation; and (v) modify the municipal storm sewer system (MS4)
notification special condition to require the permittee to submit discharge
monitoring reports to the owner of the MS4 if the permittee discharges to the
MS4.
9VAC25-196-10. Definitions.
The words and terms used in this chapter shall have the
meanings defined in § 62.1-44.2 et seq. of the Code of Virginia (State
Water Control Law), and 9VAC25-31-10 et seq. (VPDES Permit
Regulation) unless the context clearly indicates otherwise, except that for the
purposes of this chapter:
"Blowdown" means a discharge of recirculating water
from any cooling equipment or cooling process in order to maintain a desired
quality of the recirculating water. Boiler blowdown is excluded from this
definition.
"Cooling water" means water used for cooling which
does not come into direct contact with any raw product, intermediate product
(other than heat) or finished product. For the purposes of this general permit,
cooling water can be generated from any cooling equipment blowdown or produced
as a result of any noncontact cooling process through either a single pass
(once through) or recirculating system.
"Department" or "DEQ" means the
Virginia Department of Environmental Quality.
"Director" means the Director of the Virginia
Department of Environmental Quality, or an authorized representative.
"Total maximum daily load" or "TMDL"
means a calculation of the maximum amount of a pollutant that a waterbody can
receive and still meet water quality standards and an allocation of that amount
to the pollutant's sources. A TMDL includes wasteload allocations (WLAs) for
point source discharges, and load allocations (LAs) for nonpoint sources or
natural background or both, and must include a margin of safety (MOS) and
account for seasonal variations.
9VAC25-196-15. Applicability of incorporated references
based on the dates that they became effective.
Except as noted, when a regulation of the U.S.
Environmental Protection Agency set forth in Title 40 of the Code of Federal
Regulations is referenced or adopted herein and incorporated by reference, that
regulation shall be as it exists and has been published as a final regulation
in the Federal Register prior to July 1, 2012, with the effective date as
published in the Federal Register notice or March 2, 2013, whichever is later.
9VAC25-196-40. Effective date of the permit.
This general permit will become effective on March 2, 2008
2013. This general permit will expire five years from the effective
date on March 1, 2018. This general permit is effective as to any
covered owner upon compliance with all the provisions of 9VAC25-196-50 and
the receipt of this general permit.
9VAC25-196-50. Authorization to discharge.
A. Any owner governed by this general permit is hereby
authorized to discharge to surface waters of the Commonwealth of Virginia
provided that the owner files submits and receives acceptance by
the board of the registration statement of 9VAC25-196-60, files submits
the required permit fee, and complies with the effluent limitations and
other requirements of 9VAC25-196-70, and provided that: the board has
not notified the owner that the discharge is not eligible for coverage in
accordance with subsection B of this section.
B. The board will notify an owner that the discharge is
not eligible for coverage under this general permit in the event of any of the
following:
1. The owner has not been is required to obtain
an individual permit according to in accordance with
9VAC25-31-170 B 3. of the VPDES Permit Regulation;
2. The owner shall not is proposing to discharge
to Class V stockable trout waters, Class VI natural trout waters, or any state
waters specifically named in other board regulations or policies which that
prohibit such discharges. Chlorine or any other halogen compounds shall not
be used for disinfection or other treatment purposes, including biocide applications,
for any discharges to waters containing endangered or threatened species as
identified in 9VAC25-260-110 C of the Water Quality Standards.;
3. The owner shall neither use tributyltin and any chemical
additives containing tributyltin, nor use any hexavalent chromium-based water
treatment chemicals in the cooling water systems. The discharge violates
or would violate the antidegradation policy in the Water Quality Standards at
9VAC25-260-30;
4. The owner shall not use groundwater remediation wells as
the source of cooling water The discharge is not consistent with the
assumptions and requirements of an approved TMDL.
C. Chlorine or any other halogen compounds shall not be
used for disinfection or other treatment purposes, including biocide applications,
for any discharges to waters containing endangered or threatened species as
identified in 9VAC25-260-110 C of the Water Quality Standards.
D. The owner shall not use tributyltin, any chemical
additives containing tributyltin, or any hexavalent chromium-based water
treatment chemicals in the cooling water systems.
E. The owner shall not use groundwater remediation wells
as the source of cooling water.
B. Receipt of F. Compliance with this general
permit constitutes compliance with the federal Clean Water Act, the State Water
Control Law, and applicable regulations under either with the exceptions stated
in 9VAC25-31-60 of the VPDES Permit Regulation. Approval for coverage under
this general permit does not relieve any owner of the responsibility to comply
with any other applicable federal, state, or local statute,
ordinance, or regulation.
G. Continuation of permit coverage.
1. Any owner that was authorized to discharge under the
cooling water discharges general permit issued in 2008 and that submits a
complete registration statement on or before March 2, 2013, is authorized to
continue to discharge under the terms of the 2008 general permit until such
time as the board either:
a. Issues coverage to the owner under this general permit;
or
b. Notifies the owner that the discharge is not eligible
for coverage under this general permit.
2. When the owner that was covered under the expiring or
expired general permit has violated or is violating the conditions of that
permit, the board may choose to do any or all of the following:
a. Initiate enforcement action based upon the general
permit that has been continued;
b. Issue a notice of intent to deny coverage under the
amended general permit. If the general permit coverage is denied, the owner
would then be required to cease the discharges authorized by the continued
general permit or be subject to enforcement action for discharging without a
permit;
c. Issue an individual permit with appropriate conditions;
or
d. Take other actions authorized by the VPDES Permit
Regulation (9VAC25-31).
9VAC25-196-60. Registration statement.
The owner shall file a complete general VPDES permit
registration statement for cooling water discharges. Any owner proposing a new
discharge shall file a complete registration statement at least 30 days prior
to the date planned for commencing operation of the new discharge. Any owner of
an existing discharge covered by an individual VPDES permit who is proposing to
be covered by this general permit shall file the registration statement at
least 180 days prior to the expiration date of the individual VPDES permit. Any
owner of an existing discharge not currently covered by a VPDES permit who is
proposing to be covered by this general permit shall file a complete
registration statement. The required registration statement shall contain the
following information: A. Deadlines for submitting registration
statements. The owner seeking coverage under this general permit shall submit a
complete VPDES general permit registration statement in accordance with this
section, which shall serve as a notice of intent for coverage under the general
VPDES permit for cooling water discharges of 50,000 gallons per day or less.
1. New facilities. Any owner proposing a new discharge
shall submit a complete registration statement at least 30 days prior to the
date planned for commencing operation of the new discharge.
2. Existing facilities.
a. Any owner covered by an individual VPDES permit who is
proposing to be covered by this general permit shall submit a complete
registration statement at least 210 days prior to the expiration date of the
individual VPDES permit.
b. Any owner that was authorized to discharge under the
general VPDES permit that became effective on March 2, 2008, and who intends to
continue coverage under this general permit shall submit a complete
registration statement to the board on or before February 1, 2013.
B. Late registration statements. [ Late
registration Registration ] statements will be accepted
[ after March 2, 2013 ], but authorization to discharge
will not be retroactive. Owners described in subdivision A 2 b of this section
that submit [ late ] registration statements
[ after February 1, 2013, ] are authorized to discharge
under the provisions of 9VAC25-196-50 G if a complete registration statement is
submitted on or before March 2, 2013.
C. The required registration statement shall contain the
following information:
1. Facility name and address, owner name and,
mailing address and, telephone number, and email address (if
available);
2. Operator name, mailing address, and telephone number,
and email address (if available) if different from owner;
3. Does the facility currently have a VPDES permit? Permit
Number if yes;
4. Listing of point source discharges that are not composed
entirely of cooling water;
5. Listing of type and size (tons) of cooling equipment or
noncontact cooling water processes;
6. The following information if any chemical or nonchemical
treatment, or both, is employed in each of the cooling water systems:
a. Description of the chemical or nonchemical treatment,
or both, to be employed (both chemical and nonchemical) and its
purpose; for chemical additives other than chlorine, provide the information
prescribed in subdivisions 6 b, c, d , e and f;
b. Name and manufacturer of each additive used;
c. List of active ingredients and percent composition;
d. Proposed schedule and quantity of chemical usage, and
either an engineering analysis, or a technical evaluation of the active
ingredients, to determine the concentration in the discharge;
e. Available aquatic toxicity information for each proposed
additive used; and
f. Any other information such as product or constituent
degradation, fate, transport, synergies, bioavailability, etc., that will aid
the board with the toxicity evaluation of the discharge.;
7. Description of any type of treatment or retention being provided
to the wastewater before discharge (i.e. retention ponds, settling ponds, etc.);
8. A schematic drawing of the cooling water equipment that
shows the source of the cooling water, its flow through the facility, and each
cooling water discharge point.;
9. For cooling waters with a direct discharge to surface
waters, a A USGS 7.5 minute topographic map or equivalent
computer generated map extending to at least one mile beyond the property
boundary. The map must show the outline of the facility and the location of
each of its existing and proposed intake and discharge points, and must include
all springs, rivers and other surface water bodies.;
10. The following discharge information:
a. A listing of all cooling water discharges by a unique
number;
b. The source of cooling water for each discharge;
c. An estimate of the maximum daily flow in gallons per day
for each discharge;
d. The name of the waterbody receiving direct discharge or
discharge through the municipal separate storm sewer system; and
e. The duration and frequency of the discharge for each
separate discharge point; continuous, intermittent, or seasonal;
f. The name and contact information of the owner of the
municipal separate storm sewer system that receives the discharge, if applicable.
11. Whether the facility will discharge to a municipal
separate storm sewer system (MS4). If so, the name of the MS4 owner. The owner
of the facility shall notify the MS4 owner in writing of the existence of the
discharge within 30 days of coverage under the general permit and shall copy
the DEQ regional office with the notification. The notification shall include
the following information: the name of the facility, a contact person and phone
number, the location of the discharge, the nature of the discharge, and the
facility's VPDES general permit number; and
12. The following certification:
I certify under penalty of law that this document and all
attachments were prepared under my direction or supervision in accordance with
a system designed to assure that qualified personnel properly gather and
evaluate the information submitted. Based on my inquiry of the person or
persons who manage the system or those persons directly responsible for
gathering the information, the information submitted is to the best of my
knowledge and belief true, accurate, and complete. I am aware that there are
significant penalties for submitting false information including the
possibility of fine and imprisonment for knowing violations.
D. The registration statement shall be signed in
accordance with 9VAC25-31-110.
9VAC25-196-70. General permit.
Any owner whose registration statement is accepted by the
board will receive the following permit and shall comply with the requirements
therein and be subject to all requirements of 9VAC25-31.
General Permit No: VAG25
Effective Date: March 2, 2008 2013
Expiration Date: March 1, 2013 2018
GENERAL PERMIT FOR NONCONTACT COOLING WATER DISCHARGES OF
50,000 GALLONS PER DAY OR LESS
AUTHORIZATION TO DISCHARGE UNDER THE VIRGINIA POLLUTANT
DISCHARGE ELIMINATION SYSTEM AND THE VIRGINIA STATE WATER CONTROL LAW
In compliance with the provisions of the Clean Water Act, as
amended, and pursuant to the State Water Control Law and regulations adopted
pursuant thereto, owners of noncontact cooling water discharges of 50,000
gallons per day or less are authorized to discharge to surface waters within
the boundaries of the Commonwealth of Virginia, except Class V stockable trout
waters, Class VI natural trout waters, and those specifically named in board
regulations or policies which that prohibit such discharges.
Chlorine or any other halogen compounds shall not be used for disinfection or
other treatment purposes, including biocide applications, for any discharges to
waters containing endangered or threatened species as identified in
9VAC25-260-110 C of the Water Quality Standards.
The authorized discharge shall be in accordance with this
cover page, Part I - Effluent Limitations and Monitoring Requirements, and Part
II - Conditions Applicable to all VPDES Permits, as set forth herein.
Part I
A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS.
During the period beginning on the permit's effective date
and lasting until the permit's expiration date, the permittee is authorized to
discharge noncontact cooling water. Samples taken in compliance with the
monitoring requirements specified below shall be taken at the following
location(s): outfall(s): _______________.
Such discharges 1. Effluent limitations and
monitoring requirements for the first four years of the permit term (March 2,
2013, through March 1, 2017). Discharges shall be limited and monitored by
the permittee as specified below:
|
EFFLUENT CHARACTERISTICS
|
DISCHARGE LIMITATIONS
|
MONITORING REQUIREMENTS
|
|
Maximum
|
Minimum
|
Frequency
|
Sample Type
|
|
Flow (MGD)
|
0.05
|
NA
|
1/3 Months
|
Estimate
|
|
Temperature (°C)
|
(1)
|
NA
|
1/3 Months
|
Immersion Stabilization
|
|
pH (SU)
|
9 9.0(2)
|
6 6.0(2)
|
1/3 Months
|
Grab
|
|
Ammonia-N(3) (mg/l)
|
NL
|
NA
|
1/3 Months
|
Grab
|
|
Total Residual Chlorine(3)
(mg/l)
|
Nondetectable
|
NA
|
1/3 Months
|
Grab
|
|
Hardness (mg/l CaCO3)(7)
|
NL
|
NA
|
1/3 Months
|
Grab
|
|
Total Dissolved Recoverable
Copper(4) (μg/l)
|
NL
|
NA
|
1/3 Months
|
Grab
|
|
Total Dissolved Recoverable
Zinc(4) (μg/l)
|
NL
|
NA
|
1/3 Months
|
Grab
|
|
Total Dissolved Recoverable
Silver(4), (5) (μg/l)
|
NL
|
NA
|
1/3 Months
|
Grab
|
|
Total Phosphorus(6)
(mg/l)
|
NL
|
NA
|
1/3 Months
|
Grab
|
NL = No limitation, monitoring required
NA = Not applicable
(1)The effluent temperature shall not exceed a
maximum 32°C for discharges to nontidal coastal and piedmont waters, or 31°C
for mountain and upper piedmont waters. No maximum temperature limit, only
monitoring, applies to discharges to estuarine waters.
The effluent shall not cause an increase in temperature of the
receiving stream of more than 3°C above the natural water temperature. The
effluent shall not cause the temperature in the receiving stream to change more
than 2°C per hour. Natural temperature is defined as that temperature of a body
of water (measured as the arithmetic average over one hour) due solely to
natural conditions without the influence of any point‑source discharge.
(2)Where the Water Quality Standards (9VAC25-260)
establish alternate standards for pH in the waters receiving the discharge,
those standards shall be the maximum and minimum effluent limitations.
(3)Chlorine limitation of nondetectable (<0.1
mg/l) and chlorine monitoring only apply to outfalls directly discharging to
surface waters where either: (i) a treatment additive that contains chlorine
or chlorine compounds is used or (ii) the source of cooling water is
chlorinated. All data below the quantification level (QL) of 0.1 mg/L shall
be reported as "<QL." Ammonia monitoring only applies where
the source of cooling water is disinfected using chloramines.
(4)A specific analysis analytical method
is not specified for these materials; however, a maximum
quantification level (Max QL) value for each metal has been established. An
appropriate analysis method to meet the Max QL value shall be
selected from the following list of EPA methods to achieve a quantification
level that is less than the target level for the material under consideration:
using any approved method presented in 40 CFR Part 136. If the test result
is less than the method quantification level (QL), a "<[QL]" shall
be reported where the actual analytical test QL is substituted for [QL].
|
Material
|
EPA Method
|
Target Level Max QL
(μg/l)
|
|
Copper
|
200.7, 200.8, 200.9, 1638,
1640
|
9.2 1.0
|
|
Zinc
|
289.2, 200.7, 200.8, 1638,
1639
|
65.0 50.0
|
|
Silver
|
200.7, 200.8, 200.9, 1638
|
1.2 1.0
|
Quality control/assurance information shall be submitted to
document that the required quantification level QL has been
attained.
(5)Silver monitoring is only required where a
Cu/Ag anode is used.
(6)Phosphorus monitoring is only required where an
additive containing phosphorus is used.
(7)Hardness monitoring is only required for
discharges to freshwater streams, perennial streams, or dry ditches.
2. Effluent limitations and monitoring requirements for the
last year of the permit term (March 2, 2017, through March 1, 2018), discharges
to freshwater receiving streams. Such discharges shall be limited and monitored
by the permittee as specified below:
|
EFFLUENT CHARACTERISTICS
|
DISCHARGE LIMITATIONS
|
MONITORING REQUIREMENTS
|
|
Maximum
|
Minimum
|
Frequency
|
Sample Type
|
|
Flow (MGD)
|
0.05
|
NA
|
1/3 Months
|
Estimate
|
|
Temperature (°C)
|
(1)
|
NA
|
1/3 Months
|
Immersion Stabilization
|
|
pH (SU)
|
9.0(2)
|
6.0(2)
|
1/3 Months
|
Grab
|
|
Ammonia-N(3)
(mg/l)
|
NL
|
NA
|
1/3 Months
|
Grab
|
|
Total Residual Chlorine(3)
(mg/l)
|
Nondetectable
|
NA
|
1/3 Months
|
Grab
|
|
Total Recoverable Copper(4)
(μg/l)
|
9.0
|
NA
|
1/3 Months
|
Grab
|
|
Total Recoverable Zinc(4)
(μg/l)
|
120
|
NA
|
1/3 Months
|
Grab
|
|
Total Recoverable Silver(4),
(5) (μg/l)
|
3.4
|
NA
|
1/3 Months
|
Grab
|
|
Total Phosphorus(6)
(mg/l)
|
NL
|
NA
|
1/3 Months
|
Grab
|
NL = No limitation, monitoring required
NA = Not applicable
(1)The effluent temperature shall not exceed a
maximum 32°C for discharges to nontidal coastal and piedmont waters, or 31°C
for mountain and upper piedmont waters. No maximum temperature limit, only
monitoring, applies to discharges to estuarine waters.
The effluent shall not cause an increase in temperature of
the receiving stream of more than 3°C above the natural water temperature. The
effluent shall not cause the temperature in the receiving stream to change more
than 2°C per hour. Natural temperature is defined as that temperature of a body
of water (measured as the arithmetic average over one hour) due solely to
natural conditions without the influence of any point‑source discharge.
(2)Where the Water Quality Standards
(9VAC25-260) establish alternate standards for pH in the waters receiving the
discharge, those standards shall be the maximum and minimum effluent
limitations.
(3)Chlorine limitation of nondetectable (<0.1
mg/l) and chlorine monitoring only apply to outfalls directly discharging to
surface waters where either: (i) a treatment additive that contains chlorine or
chlorine compounds is used or (ii) the source of cooling water is chlorinated.
All data below the quantification level (QL) of 0.1 mg/L shall be reported as
"<QL." Ammonia monitoring only applies where the source of cooling
water is disinfected using chloramines.
(4)A specific analytical method is not
specified; however, a maximum quantification level (Max QL) value for each
metal has been established. An appropriate method to meet the Max QL value
shall be selected using any approved method presented in 40 CFR Part 136. If
the test result is less than the method quantification level (QL), a
"<[QL]" shall be reported where the actual analytical test QL is
substituted for [QL].
|
Material
|
Max QL (μg/l)
|
|
Copper
|
1.0
|
|
Zinc
|
50.0
|
|
Silver
|
1.0
|
Quality control/assurance information shall be submitted to
document that the required QL has been attained.
(5)Silver monitoring is only required where a Cu/Ag
anode is used.
(6)Phosphorus monitoring is only required where
an additive containing phosphorus is used.
3. Effluent limitations and monitoring requirements for the
last year of the permit term (March 2, 2017, through March 1, 2018), discharges
to saltwater receiving streams. Such discharges shall be limited and monitored
by the permittee as specified below:
|
EFFLUENT CHARACTERISTICS
|
DISCHARGE LIMITATIONS
|
MONITORING REQUIREMENTS
|
|
Maximum
|
Minimum
|
Frequency
|
Sample Type
|
|
Flow (MGD)
|
0.05
|
NA
|
1/3 Months
|
Estimate
|
|
Temperature (°C)
|
(1)
|
NA
|
1/3 Months
|
Immersion Stabilization
|
|
pH (SU)
|
9.0(2)
|
6.0(2)
|
1/3 Months
|
Grab
|
|
Ammonia-N(3)
(mg/l)
|
NL
|
NA
|
1/3 Months
|
Grab
|
|
Total Residual Chlorine(3)
(mg/l)
|
Nondetectable
|
NA
|
1/3 Months
|
Grab
|
|
Total Recoverable Copper(4)
(μg/l)
|
6.0
|
NA
|
1/3 Months
|
Grab
|
|
Total Recoverable Zinc(4)
(μg/l)
|
81
|
NA
|
1/3 Months
|
Grab
|
|
Total Recoverable Silver(4),
(5) (μg/l)
|
1.9
|
NA
|
1/3 Months
|
Grab
|
|
Total Phosphorus(6)
(mg/l)
|
NL
|
NA
|
1/3 Months
|
Grab
|
NL = No limitation, monitoring required
NA = Not applicable
(1)The effluent temperature shall not exceed a
maximum 32°C for discharges to nontidal coastal and piedmont waters, or 31°C
for mountain and upper piedmont waters. No maximum temperature limit, only
monitoring, applies to discharges to estuarine waters.
The effluent shall not cause an increase in temperature of
the receiving stream of more than 3°C above the natural water temperature. The
effluent shall not cause the temperature in the receiving stream to change more
than 2°C per hour. Natural temperature is defined as that temperature of a body
of water (measured as the arithmetic average over one hour) due solely to
natural conditions without the influence of any point‑source discharge.
(2)Where the Water Quality Standards
(9VAC25-260) establish alternate standards for pH in the waters receiving the
discharge, those standards shall be the maximum and minimum effluent
limitations.
(3)Chlorine limitation of nondetectable (<0.1
mg/l) and chlorine monitoring only apply to outfalls directly discharging to
surface waters where either: (i) a treatment additive that contains chlorine or
chlorine compounds is used or (ii) the source of cooling water is chlorinated.
All data below the quantification level (QL) of 0.1 mg/L shall be reported as
"<QL." Ammonia monitoring only applies where the source of cooling
water is disinfected using chloramines.
(4)A specific analytical method is not
specified; however, a maximum quantification level (Max QL) value for each
metal has been established. An appropriate method to meet the Max QL value
shall be selected using any approved method presented in 40 CFR Part 136. If
the test result is less than the method quantification level (QL), a
"<[QL]" shall be reported where the actual analytical test QL is
substituted for [QL].
|
Material
|
Max QL (μg/l)
|
|
Copper
|
1.0
|
|
Zinc
|
50.0
|
|
Silver
|
1.0
|
Quality control/assurance information shall be submitted to
document that the required QL has been attained.
(5)Silver monitoring is only required where a
Cu/Ag anode is used.
(6)Phosphorus monitoring is only required where
an additive containing phosphorus is used.
B. Special conditions.
1. There shall be no discharge of floating solids or visible
foam in other than trace amounts.
2. No discharges other than cooling water, as defined, are
permitted under this general permit.
3. The use of any chemical additives not identified in the
registration statement, except chlorine, without prior approval is prohibited
under this general permit. Prior approval shall be obtained from the DEQ before
any changes are made to the chemical and/or or nonchemical
treatment technology employed in the cooling water system. Requests for
approval of the change shall be made in writing and shall include the following
information:
a. Describe the chemical and/or or nonchemical
treatment to be employed and its purpose; if chemical additives are used,
provide the information prescribed in subdivisions 3 b, c, d, e and f;
b. Provide the name and manufacturer of each additive used;
c. Provide a list of active ingredients and percentage of
composition;
d. Give the proposed schedule and quantity of chemical usage,
and provide either an engineering analysis, or a technical evaluation of the
active ingredients, to determine the concentration in the discharge;
e. Attach available aquatic toxicity information for each
additive proposed for use; and
f. Attach any other information such as product or constituent
degradation, fate, transport, synergies, bioavailability, etc., that will aid the
board with the toxicity evaluation for the discharge.
4. Where cooling water is discharged through a municipal storm
sewer system to surface waters, the permittee shall, within 30 days of coverage
under this general permit, notify the owner of the municipal separate storm
sewer system in writing of the existence of the discharge and provide
the following information: the name of the facility, a contact person and phone
number, the nature of the discharge, number of the outfalls, and
the location of the discharge, and the facility's VPDES general permit
number. A copy of such notification shall be provided to the department. Discharge
Monitoring Reports (DMRs) required by this permit shall be submitted to both
the department and the owner of the municipal separate storm sewer system.
5. The permittee shall at all times properly operate and
maintain all cooling water systems. Inspection shall be conducted for each
cooling water unit by the plant personnel at least once per year with reports
maintained on site.
6. The permittee shall notify the department as soon as they
know or have reason to believe:
a. That any activity has occurred or will occur which would
result in the discharge, on a routine or frequent basis, of any toxic pollutant
which is not limited in this permit, if that discharge will exceed the highest
of the following notification levels:
(1) One hundred micrograms per liter (100 μg/l);
(2) Two hundred micrograms per liter (200 μg/l) for
acrolein and acrylonitrile; 500 micrograms per liter (500 μg/l) for 2,4‑dinitrophenol
and for 2‑methyl‑4,6‑dinitrophenol; and one milligram per
liter (1 mg/l) for antimony;
(3) Five times the maximum concentration value reported for
that pollutant in the permit application; or
(4) The level established by the board in accordance with
9VAC25-31-220 F.
b. That any activity has occurred or will occur which would
result in any discharge, on a nonroutine or infrequent basis, of a toxic
pollutant which is not limited in this permit, if that discharge will exceed
the highest of the following notification levels:
(1) Five hundred micrograms per liter (500 μg/l);
(2) One milligram per liter (1 mg/l) for antimony;
(3) Ten times the maximum concentration value reported for
that pollutant in the permit application; or
(4) The level established by the board in accordance with
9VAC25-31-220 F.
7. Geothermal systems using groundwater and no chemical
additives. Geothermal systems using groundwater and no chemical additives may
be eligible for reduced monitoring requirements.
If a geothermal system was covered by the previous cooling
water general permit, and the monitoring results from the previous permit term
demonstrate full compliance with the effluent limitations, the permittee may
request authorization from the department to reduce the monitoring to once in
the first monitoring quarter of the first year of this permit term.
Owners of new geothermal systems, and previously unpermitted
geothermal systems that receive coverage under this permit shall submit
monitoring results to the department for the first four monitoring quarters
after coverage begins. If the monitoring results demonstrate full compliance
with the effluent limitations, the permittee may request authorization from the
department to suspend monitoring for the remainder of the permit term.
Should the permittee be issued a warning letter related to
violation of effluent limitations, a notice of violation, or be the subject of
an active enforcement action, upon issuance of the letter or notice, or
initiation of the enforcement action the monitoring frequency shall revert to
1/3 months and remain in effect until the permit's expiration date.
8. Monitoring results shall be reported using the same
number of significant digits as listed in the permit. Regardless of the rounding
convention used by the permittee (e.g., five always rounding up or to the
nearest even number), the permittee shall use the convention consistently and
shall ensure that consulting laboratories employed by the permittee use the
same convention.
9. Discharges to waters with an approved "total
maximum daily load" (TMDL). Owners of facilities that are a source of the
specified pollutant of concern to waters where an approved TMDL has been
established shall implement measures and controls that are consistent with the
assumptions and requirements of the TMDL.
10. Notice of termination.
a. The owner may terminate coverage under this general
permit by filing a complete notice of termination. The notice of termination
may be filed after one or more of the following conditions have been met:
(1) Operations have ceased at the facility and there are no
longer cooling water discharges from the facility;
(2) A new owner has assumed responsibility for the facility
(NOTE: A notice of termination does not have to be submitted if a VPDES Change
of Ownership Agreement form has been submitted);
(3) All cooling water discharges associated with this
facility have been covered by an individual VPDES permit or an alternative
VPDES permit; or
(4) Termination of coverage is being requested for another
reason, provided the board agrees that coverage under this general permit is no
longer needed.
b. The notice of termination shall contain the following
information:
(1) Owner's name, mailing address, telephone number, and
email address (if available);
(2) Facility name and location;
(3) VPDES cooling water discharges general permit number;
and
(4) The basis for submitting the notice of termination,
including:
(a) A statement indicating that a new owner has assumed
responsibility for the facility;
(b) A statement indicating that operations have ceased at
the facility and there are no longer cooling water discharges from the
facility;
(c) A statement indicating that all cooling water
discharges have been covered by an individual VPDES permit; or
(d) A statement indicating that termination of coverage is
being requested for another reason (state the reason).
c. The following certification: "I certify under
penalty of law that all cooling water discharges from the identified facility
that are authorized by this VPDES general permit have been eliminated, or
covered under a VPDES individual or alternative permit, or that I am no longer
the owner of the facility, or permit coverage should be terminated for another
reason listed above. I understand that by submitting this notice of termination
that I am no longer authorized to discharge cooling water in accordance with
the general permit, and that discharging pollutants in cooling water to surface
waters is unlawful where the discharge is not authorized by a VPDES permit. I
also understand that the submittal of this notice of termination does not
release an owner from liability for any violations of this permit or the Clean
Water Act."
d. The notice of termination shall be signed in accordance
with Part II K.
e. The notice of termination shall be submitted to the DEQ
regional office serving the area where the cooling water discharge is located.
11. The discharges authorized by this permit shall be controlled
as necessary to meet applicable water quality standards.
12. Approval for coverage under this general permit does
not relieve any owner of the responsibility to comply with any other federal,
state, or local statute, ordinance, or regulation.
Part II
Conditions Applicable to All VPDES Permits
A. Monitoring.
1. Samples and measurements taken as required by this permit
shall be representative of the monitored activity.
2. Monitoring shall be conducted according to procedures
approved under 40 CFR Part 136 or alternative methods approved by the U.S.
Environmental Protection Agency, unless other procedures have been specified in
this permit.
3. The permittee shall periodically calibrate and perform
maintenance procedures on all monitoring and analytical instrumentation at
intervals that will ensure accuracy of measurements.
4. Samples taken as required by this permit shall be
analyzed in accordance with 1VAC30-45, Certification for Noncommercial
Environmental Laboratories, or 1VAC30-46, Accreditation for Commercial
Environmental Laboratories.
B. Records.
1. Records of monitoring information shall include:
a. The date, exact place and time of sampling or measurements;
b. The individual(s) who performed the sampling or
measurements;
c. The date(s) and time(s) analyses were performed;
d. The individual(s) who performed the analyses;
e. The analytical techniques or methods used; and
f. The results of such analyses.
2. Except for records of monitoring information required by
this permit related to the permittee's sewage sludge use and disposal
activities, which shall be retained for a period of at least five years, the
permittee shall retain records of all monitoring information, including all
calibration and maintenance records and all original strip chart recordings for
continuous monitoring instrumentation, copies of all reports required by this
permit, and records of all data used to complete the registration statement for
this permit, for a period of at least three years from the date of the sample,
measurement, report or request for coverage. This period of retention shall be
extended automatically during the course of any unresolved litigation regarding
the regulated activity or regarding control standards applicable to the
permittee or as requested by the board.
C. Reporting monitoring results.
1. The permittee shall submit the results of the monitoring
required by this permit not later than the 10th day of the month after
monitoring takes place, unless another reporting schedule is specified
elsewhere in this permit. Monitoring results shall be submitted to the
department's regional office.
2. Monitoring results shall be reported on a Discharge
Monitoring Report (DMR) or on forms provided, approved or specified by the
department.
3. If the permittee monitors any pollutant specifically
addressed by this permit more frequently than required by this permit using
test procedures approved under 40 CFR Part 136 or using other test procedures
approved by the U.S. Environmental Protection Agency or using procedures
specified in this permit, the results of this monitoring shall be included in
the calculation and reporting of the data submitted in the DMR or reporting form
specified by the department.
4. Calculations for all limitations which require averaging of
measurements shall utilize an arithmetic mean unless otherwise specified in
this permit.
D. Duty to provide information. The permittee shall furnish
to the department, within a reasonable time, any information which the board
may request to determine whether cause exists for modifying, revoking and
reissuing, or terminating this permit or to determine compliance with this
permit. The board may require the permittee to furnish, upon request, such
plans, specifications, and other pertinent information as may be necessary to
determine the effect of the wastes from his discharge on the quality of state
waters, or such other information as may be necessary to accomplish the
purposes of the State Water Control Law. The permittee shall also furnish to
the department upon request copies of records required to be kept by this
permit.
E. Compliance schedule reports. Reports of compliance or
noncompliance with, or any progress reports on, interim and final requirements
contained in any compliance schedule of this permit shall be submitted no later
than 14 days following each schedule date.
F. Unauthorized discharges. Except in compliance with this
permit or another permit issued by the board, it shall be unlawful for any
person to:
1. Discharge into state waters sewage, industrial wastes,
other wastes, or any noxious or deleterious substances; or
2. Otherwise alter the physical, chemical or biological
properties of such state waters and make them detrimental to the public health,
to animal or aquatic life, to the use of such waters for domestic or industrial
consumption, for recreation, or for other uses.
G. Reports of unauthorized discharges. Any permittee who
discharges or causes or allows a discharge of sewage, industrial waste, other
wastes or any noxious or deleterious substance into or upon state waters in
violation of Part II F, or who discharges or causes or allows a discharge that
may reasonably be expected to enter state waters in violation of Part II F,
shall notify the department of the discharge immediately upon discovery of the
discharge, but in no case later than 24 hours after said discovery. A written
report of the unauthorized discharge shall be submitted to the department
within five days of discovery of the discharge. The written report shall
contain:
1. A description of the nature and location of the discharge;
2. The cause of the discharge;
3. The date on which the discharge occurred;
4. The length of time that the discharge continued;
5. The volume of the discharge;
6. If the discharge is continuing, how long it is expected to
continue;
7. If the discharge is continuing, what the expected total
volume of the discharge will be; and
8. Any steps planned or taken to reduce, eliminate and prevent
a recurrence of the present discharge or any future discharges not authorized
by this permit.
Discharges reportable to the department under the immediate
reporting requirements of other regulations are exempted from this requirement.
H. Reports of unusual or extraordinary discharges. If any
unusual or extraordinary discharge including a bypass or upset should occur
from a treatment works and the discharge enters or could be expected to enter
state waters, the permittee shall promptly notify, in no case later than 24
hours, the department by telephone after the discovery of the discharge. This
notification shall provide all available details of the incident, including any
adverse affects on aquatic life and the known number of fish killed. The
permittee shall reduce the report to writing and shall submit it to the
department within five days of discovery of the discharge in accordance with
Part II I 2. Unusual and extraordinary discharges include but are not limited
to any discharge resulting from:
1. Unusual spillage of materials resulting directly or
indirectly from processing operations;
2. Breakdown of processing or accessory equipment;
3. Failure or taking out of service some or all of the
treatment works; and
4. Flooding or other acts of nature.
I. Reports of noncompliance. The permittee shall report any
noncompliance which may adversely affect state waters or may endanger public
health.
1. An oral report shall be provided within 24 hours from the
time the permittee becomes aware of the circumstances. The following shall be
included as information which shall be reported within 24 hours under this
subsection:
a. Any unanticipated bypass; and
b. Any upset which causes a discharge to surface waters.
2. A written report shall be submitted within five days and
shall contain:
a. A description of the noncompliance and its cause;
b. The period of noncompliance, including exact dates and
times, and if the noncompliance has not been corrected, the anticipated time it
is expected to continue; and
c. Steps taken or planned to reduce, eliminate, and prevent
reoccurrence of the noncompliance.
The board may waive the written report on a case-by-case basis
for reports of noncompliance under Part II I if the oral report has been
received within 24 hours and no adverse impact on state waters has been
reported.
3. The permittee shall report all instances of noncompliance
not reported under Part II I 1 or 2, in writing, at the time the next
monitoring reports are submitted. The reports shall contain the information
listed in Part II I 2.
NOTE: The immediate (within 24 hours) reports required in
Parts II G, H and I may be made to the department's regional office. Reports
may be made by telephone or by fax, FAX, or online at http://www.deq.virginia.gov/Programs/PollutionResponsePreparedness/PollutionReportingForm.aspx.
For reports outside normal working hours, leave a message and this shall
fulfill the immediate reporting requirement. For emergencies, the Virginia
Department of Emergency Services maintains a 24-hour telephone service at
1-800-468-8892.
J. Notice of planned changes.
1. The permittee shall give notice to the department as soon
as possible of any planned physical alterations or additions to the permitted
facility. Notice is required only when:
a. The permittee plans alteration or addition to any building,
structure, facility, or installation from which there is or may be a discharge
of pollutants, the construction of which commenced:
(1) After promulgation of standards of performance under § 306
of Clean Water Act which are applicable to such source; or
(2) After proposal of standards of performance in accordance
with § 306 of Clean Water Act which are applicable to such source, but only if
the standards are promulgated in accordance with § 306 within 120 days of their
proposal;
b. The alteration or addition could significantly change the
nature or increase the quantity of pollutants discharged. This notification
applies to pollutants which are subject neither to effluent limitations nor to
notification requirements specified elsewhere in this permit; or
c. The alteration or addition results in a significant change
in the permittee's sludge use or disposal practices, and such alteration,
addition, or change may justify the application of permit conditions that are
different from or absent in the existing permit, including notification of
additional use or disposal sites not reported during the permit application
process or not reported pursuant to an approved land application plan.
2. The permittee shall give advance notice to the department
of any planned changes in the permitted facility or activity which may result
in noncompliance with permit requirements.
K. Signatory requirements.
1. Registration statements. All registration statements shall
be signed as follows:
a. For a corporation: by a responsible corporate officer. For
the purpose of this section, a responsible corporate officer means: (i) a
president, secretary, treasurer, or vice-president of the corporation in charge
of a principal business function, or any other person who performs similar
policy-making or decision-making functions for the corporation, or (ii) the
manager of one or more manufacturing, production, or operating facilities,
provided the manager is authorized to make management decisions that govern the
operation of the regulated facility including having the explicit or implicit
duty of making major capital investment recommendations, and initiating and
directing other comprehensive measures to assure long-term environmental
compliance with environmental laws and regulations; the manager can ensure that
the necessary systems are established or actions taken to gather complete and
accurate information for permit application requirements; and where authority
to sign documents has been assigned or delegated to the manager in accordance
with corporate procedures;
b. For a partnership or sole proprietorship: by a general
partner or the proprietor, respectively; or
c. For a municipality, state, federal, or other public agency:
by either a principal executive officer or ranking elected official. For
purposes of this section, a principal executive officer of a public agency
includes: (i) the chief executive officer of the agency, or (ii) a senior
executive officer having responsibility for the overall operations of a
principal geographic unit of the agency.
2. Reports, etc. All reports required by permits, and other
information requested by the board shall be signed by a person described in
Part II K 1, or by a duly authorized representative of that person. A person is
a duly authorized representative only if:
a. The authorization is made in writing by a person described
in Part II K 1;
b. The authorization specifies either an individual or a
position having responsibility for the overall operation of the regulated
facility or activity such as the position of plant manager, operator of a well
or a well field, superintendent, position of equivalent responsibility, or an
individual or position having overall responsibility for environmental matters
for the company (a duly authorized representative may thus be either a named
individual or any individual occupying a named position); and
c. The written authorization is submitted to the department.
3. Changes to authorization. If an authorization under Part II
K 2 is no longer accurate because a different individual or position has
responsibility for the overall operation of the facility, a new authorization
satisfying the requirements of Part II K 2 shall be submitted to the department
prior to or together with any reports or information to be signed by an
authorized representative.
4. Certification. Any person signing a document under Part II
K 1 or 2 shall make the following certification:
"I certify under penalty of law that this document and
all attachments were prepared under my direction or supervision in accordance
with a system designed to assure that qualified personnel properly gather and
evaluate the information submitted. Based on my inquiry of the person or
persons who manage the system, or those persons directly responsible for
gathering the information, the information submitted is, to the best of my
knowledge and belief, true, accurate, and complete. I am aware that there are
significant penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations."
L. Duty to comply. The permittee shall comply with all
conditions of this permit. Any permit noncompliance constitutes a violation of
the State Water Control Law and the Clean Water Act, except that noncompliance
with certain provisions of this permit may constitute a violation of the State
Water Control Law but not the Clean Water Act. Permit noncompliance is grounds
for enforcement action; for permit termination, revocation and reissuance, or
modification; or denial of a permit renewal application.
The permittee shall comply with effluent standards or
prohibitions established under § 307(a) of the Clean Water Act for toxic
pollutants and with standards for sewage sludge use or disposal established
under § 405(d) of the Clean Water Act within the time provided in the
regulations that establish these standards or prohibitions or standards for
sewage sludge use or disposal, even if this permit has not yet been modified to
incorporate the requirement.
M. Duty to reapply. If the permittee wishes to continue an
activity regulated by this permit after the expiration date of this permit, the
permittee shall apply for and obtain a new permit. All permittees with a
currently effective permit shall submit a new registration statement at least 90
30 days before the expiration date of the existing permit, unless
permission for a later date has been granted by the board. The board shall not
grant permission for registration statements to be submitted later than the
expiration date of the existing permit.
N. Effect of a permit. This permit does not convey any
property rights in either real or personal property or any exclusive
privileges, nor does it authorize any injury to private property or invasion of
personal rights, or any infringement of federal, state or local law or
regulations.
O. State law. Nothing in this permit shall be construed to
preclude the institution of any legal action under, or relieve the permittee
from any responsibilities, liabilities, or penalties established pursuant to
any other state law or regulation or under authority preserved by § 510 of the
Clean Water Act. Except as provided in permit conditions on bypass (Part II U)
and upset (Part II V), nothing in this permit shall be construed to relieve the
permittee from civil and criminal penalties for noncompliance.
P. Oil and hazardous substance liability. Nothing in this
permit shall be construed to preclude the institution of any legal action or
relieve the permittee from any responsibilities, liabilities, or penalties to
which the permittee is or may be subject under §§ 62.1-44.34:14 through
62.1-44.34:23 of the State Water Control Law.
Q. Proper operation and maintenance. The permittee shall at
all times properly operate and maintain all facilities and systems of treatment
and control (and related appurtenances) which are installed or used by the
permittee to achieve compliance with the conditions of this permit. Proper
operation and maintenance also includes effective plant performance, adequate
funding, adequate staffing, and adequate laboratory and process controls,
including appropriate quality assurance procedures. This provision requires the
operation of back-up or auxiliary facilities or similar systems which are
installed by the permittee only when the operation is necessary to achieve
compliance with the conditions of this permit.
R. Disposal of solids or sludges. Solids, sludges or other
pollutants removed in the course of treatment or management of pollutants shall
be disposed of in a manner so as to prevent any pollutant from such materials
from entering state waters.
S. Duty to mitigate. The permittee shall take all reasonable
steps to minimize or prevent any discharge or sludge use or disposal in
violation of this permit which has a reasonable likelihood of adversely
affecting human health or the environment.
T. Need to halt or reduce activity not a defense. It shall
not be a defense for a permittee in an enforcement action that it would have
been necessary to halt or reduce the permitted activity in order to maintain
compliance with the conditions of this permit.
U. Bypass.
1. "Bypass" means the intentional diversion of waste
streams from any portion of a treatment facility. The permittee may allow any
bypass to occur which does not cause effluent limitations to be exceeded, but
only if it also is for essential maintenance to ensure efficient operation.
These bypasses are not subject to the provisions of Part II U 2 and U 3.
2. Notice.
a. Anticipated bypass. If the permittee knows in advance of
the need for a bypass, prior notice shall be submitted, if possible at least 10
days before the date of the bypass.
b. Unanticipated bypass. The permittee shall submit notice of
an unanticipated bypass as required in Part II I.
3. Prohibition of bypass.
a. Bypass is prohibited, and the board may take enforcement
action against a permittee for bypass, unless:
(1) Bypass was unavoidable to prevent loss of life, personal
injury, or severe property damage;
(2) There were no feasible alternatives to the bypass, such as
the use of auxiliary treatment facilities, retention of untreated wastes, or
maintenance during normal periods of equipment downtime. This condition is not
satisfied if adequate back-up equipment should have been installed in the
exercise of reasonable engineering judgment to prevent a bypass which occurred
during normal periods of equipment downtime or preventive maintenance; and
(3) The permittee submitted notices as required under Part II
U 2.
b. The board may approve an anticipated bypass, after
considering its adverse effects, if the board determines that it will meet the
three conditions listed in Part II U 3 a.
V. Upset.
1. An upset constitutes an affirmative defense to an action
brought for noncompliance with technology based permit effluent limitations if
the requirements of Part II V 2 are met. A determination made during
administrative review of claims that noncompliance was caused by upset, and
before an action for noncompliance, is not a final administrative action
subject to judicial review.
2. A permittee who wishes to establish the affirmative defense
of upset shall demonstrate, through properly signed, contemporaneous operating
logs, or other relevant evidence that:
a. An upset occurred and that the permittee can identify the
cause(s) of the upset;
b. The permitted facility was at the time being properly
operated;
c. The permittee submitted notice of the upset as required in
Part II I; and
d. The permittee complied with any remedial measures required
under Part II S.
3. In any enforcement proceeding the permittee seeking to
establish the occurrence of an upset has the burden of proof.
W. Inspection and entry. The permittee shall allow the
director, or an authorized representative, upon presentation of credentials and
other documents as may be required by law, to:
1. Enter upon the permittee's premises where a regulated
facility or activity is located or conducted, or where records must be kept
under the conditions of this permit;
2. Have access to and copy, at reasonable times, any records
that must be kept under the conditions of this permit;
3. Inspect at reasonable times any facilities, equipment
(including monitoring and control equipment), practices, or operations
regulated or required under this permit; and
4. Sample or monitor at reasonable times, for the purposes of
assuring permit compliance or as otherwise authorized by the Clean Water Act
and the State Water Control Law, any substances or parameters at any location.
For purposes of this subsection, the time for inspection
shall be deemed reasonable during regular business hours, and whenever the
facility is discharging. Nothing contained herein shall make an inspection
unreasonable during an emergency.
X. Permit actions. Permits may be modified, revoked and
reissued, or terminated for cause. The filing of a request by the permittee for
a permit modification, revocation and reissuance, or termination, or a
notification of planned changes or anticipated noncompliance does not stay any
permit condition.
Y. Transfer of permits.
1. Permits are not transferable to any person except after
notice to the department. Except as provided in Part II Y 2, a permit may be
transferred by the permittee to a new owner or operator only if the permit has
been modified or revoked and reissued, or a minor modification made, to
identify the new permittee and incorporate such other requirements as may be
necessary under the State Water Control Law and the Clean Water Act.
2. As an alternative to transfers under Part II Y 1, this
permit may be automatically transferred to a new permittee if:
a. The current permittee notifies the department at least
within 30 days in advance of the proposed transfer of the
title to the facility or property;
b. The notice includes a written agreement between the
existing and new permittees containing a specific date for transfer of permit
responsibility, coverage, and liability between them; and
c. The board does not notify the existing permittee and the
proposed new permittee of its intent to modify or revoke and reissue the
permit. If this notice is not received, the transfer is effective on the date
specified in the agreement mentioned in Part II Y 2 b.
Z. Severability. The provisions of this permit are severable.
If any provision of this permit or the application of any provision of this
permit to any circumstance is held invalid, the application of such provision
to other circumstances and the remainder of this permit shall not be affected
thereby.
VA.R. Doc. No. R11-2742; Filed September 28, 2012, 4:53 p.m.
Proposed Regulation
Title of Regulation: 9VAC25-600. Eastern Virginia
Ground Water Management Area (amending 9VAC25-600-10, 9VAC25-600-20).
Statutory Authority: § 62.1-256 of the Code of
Virginia.
Public Hearing Information:
November 26, 2012 - 1:30 p.m. - James City County, Board
Room, Building F, 101 Mounts Bay Road, Williamsburg, VA
December 4, 2012 - 2 p.m. - Spotsylvania County, Holbert
Building, Board of Supervisors Meeting Room, 9104 Courthouse Road,
Spotsylvania, VA
Public Comment Deadline: January 11, 2013.
Agency Contact: Melissa Porterfield, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4234, FAX (804) 698-4346, or email
melissa.porterfield@deq.virginia.gov.
Basis: Section 62.1-256 of the Code of Virginia authorizes
the Board of Health to adopt regulations to administer and enforce the Ground
Water Management Act of 1992 (§ 62.1-254 et seq.) of the Code of Virginia.
The designation process is outlined in 9VAC25-610-70 and 9VAC25-610-80.
Purpose: Groundwater levels in the undesignated portion
of Virginia's coastal plain are continuing to decline. Impacts from groundwater
withdrawals are propagating along the fall line into the undesignated portion
of Virginia's coastal plain and have the potential to interfere with wells in
these areas without assigned mitigation responsibilities. Given current
groundwater declines, the entire coastal plain aquifer system must be managed
to maintain a sustainable future supply of groundwater for the protection of
the health, safety, or welfare of the citizens in the Eastern Virginia
Groundwater Management Area.
Substance: The regulations are being amended to expand
the groundwater management area to include localities that are included in
Virginia's coastal plain, with boundaries extending westward to Interstate 95.
The term "ground water" is being revised in the regulation to the
term "groundwater" to be consistent with common usage and the use of
the term by United States Geological Survey (USGS).
Issues: The primary advantage to the public will be that
these regulations will manage groundwater resources sustainably within the
entire coastal plain. This will ensure that Virginia's groundwater resources
are being managed in order to maintain resource availability for future
Virginians. There are no disadvantages to the public from managing the
groundwater resource.
The primary advantage to the Commonwealth is that groundwater
resources will be comprehensively managed. There are no disadvantages to the
Commonwealth from managing the groundwater resource.
With the expansion of the groundwater management area,
additional withdrawers of groundwater will be required to obtain groundwater
withdrawal permits. These permits are issued based on demonstrated need for
groundwater, require water conservation and mitigation of impacts, and specify
maximum amounts of groundwater that may be withdrawn. All withdrawers of
groundwater, unless exempted by statute, are required to obtain a permit, which
places additional regulations on withdrawers of groundwater occurring within
the management area.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The State
Water Control Board proposes to expand the Eastern Virginia Groundwater
Management Area to include the counties of Essex, Gloucester, King George, King
and Queen, Lancaster, Mathews, Middlesex, Northumberland, Richmond, and
Westmoreland, and the areas of Arlington, Caroline, Fairfax, Prince William,
Spotsylvania, and Stafford counties east of Interstate 95.
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. The State Water Control Board
proposes to expand the Eastern Virginia Groundwater Management Area to include
the counties of Essex, Gloucester, King George, King and Queen, Lancaster,
Mathews, Middlesex, Northumberland, Richmond, and Westmoreland, and the areas
of Arlington, Caroline, Fairfax, Prince William, Spotsylvania, and Stafford
counties east of Interstate 95. The proposed expansion is quite large which is
about the size of the current management area.1
Groundwater is a valuable economic resource due to its many
beneficial uses. These include, but are not limited to provision of drinking
water; provision of water for crop irrigation, for livestock, for industrial
and commercial processes, for aquaculture, for fire protection, and for drought
relief; provision of non-use services (e.g. wetlands supported by groundwater,
bequest motivations); and provision of supplemental discharge to surface water
supplies.
According to Department of Environmental Quality (DEQ)
groundwater levels in the proposed expansion areas are continuing to decline
two to four feet per year. Since the entire coastal plain aquifer system is
interconnected, the system must be managed as a whole to maintain a sustainable
future groundwater supply.
With the proposed changes, entities withdrawing 300,000 gallons
or more of groundwater per month will be required to obtain a permit. The
permits will be for a period of ten years. The levels of initial permitted
withdrawals will be based on the historical withdrawal levels to make sure the
current users are not forced to reduce their usage for a period of ten years.
After the initial ten-year period, the current users may be required to reduce
their usage or no permit may be issued depending on the review of the
application.
The proposed regulations will introduce compliance costs on the
regulated users of groundwater. There will be an application fee of $1,200 for
initial permits based on historic groundwater withdrawals for a ten-year permit
term. No fees are required for agricultural withdrawals. Since 111 known
entities are expected to be affected, approximately $133,200 in total
application fees will be paid by the regulated entities during the initial
ten-year period. After the initial ten-year period, application fee for a
subsequent permit is $6,000.
In some cases an aquifer test may be required. This test is
needed when an applicant disagrees with the area of impact determined by DEQ or
the model used for evaluating drawdown impacts is known to have problems
predicting drawdowns in a specific area. The cost of an aquifer test typically
ranges from $10,000 to $25,000.
The new users are required to provide a geophysical log which
is estimated to cost approximately $1,200, but may vary depending on the depth
of the well. If a camera survey is required, costs may range from $1,000 to
$2,000 depending on whether the pump must be removed and the depth of the well.
When there is enough uncertainty whether a proposed withdrawal
can meet the drawdown criteria, monitoring wells may be required. The cost of
monitoring wells can range from $50,000 to $100,000 depending on the depth and
number of wells.
In cases where no permits can be issued, the users will have to
absorb the cost differences between the groundwater and the alternate water
source chosen. Alternate water sources may include development of surface water
reservoirs, withdrawals from existing lakes or rivers, desalination of salt
water, reuse of water for non-potable uses, or water conservation measures. The
size of the economic effects in these cases will primarily depend on the
differential cost of the alternate water source and the quantity of water
needed.
Also, according to DEQ, there are 27 known local government
withdrawals. These local governments may pass some or all of the additional
compliance costs onto their end users. The ability of an entity passing
additional regulatory compliance costs on their customers is generally
determined by the strength of the demand for the product, which is groundwater
in this case.
The proposed regulations will also introduce administrative
costs on DEQ due to the additional permit workload anticipated. DEQ estimates
that approximately six full-time staff will be needed to accommodate the
additional workload. At a cost of $40,000 per full-time position, the total staffing
costs is expected to be about $240,000 per year. However, since the current
users will be able to continue to withdraw their historical usage levels, DEQ
anticipates that the need for the additional staff may be phased in over time.
The main benefit of the proposed regulations is to achieve a
sustainable future groundwater supply. As mentioned before, DEQ estimates that
the groundwater levels in the proposed expansion areas are continuing to
decline two to four feet per year. The recharge rate, on the other hand, is
estimated to be 1/10th of an inch per year for some aquifers. Thus, it takes a
very long time for groundwater to recharge to its pre-withdrawal levels.
Furthermore, significant reductions in groundwater levels may lead to
dewatering of aquifers, which causes irreversible damage to the aquifers.
Also, since the entire coastal plain aquifer system is
interconnected, withdrawals from one well may affect others. According to DEQ,
the mechanics of Virginia's coastal plain aquifer system is such that
groundwater levels start declining along the fall line first (approximately
Interstate 95 line) and propagate toward the Atlantic Ocean. For example, a
major users withdrawal in the Tidewater region may reduce the level of
groundwater first in Richmond area and then in Tidewater area. Thus, the
protection of groundwater levels is anticipated to benefit the areas closer to
the fall line more than the others since they are at more risk.
Furthermore, the proposed regulations are expected to mitigate
negative externalities that could exist in an unregulated groundwater
management area and lead to an improved allocation of groundwater among
different users. When actions of an individual impose involuntary costs on
somebody else, a negative externality is said to exist. In the example given, a
groundwater user in Tidewater may force the user in Richmond to develop
alternate water sources and impose involuntary costs.
A negative externality obscures the true price of a commodity
and consequently leads to inefficient allocation of that resource. For example,
the user in Tidewater would not pay the full cost of his or her usage and would
tend to consume more groundwater than he or she would if he or she was paying
the full price, which would include the costs imposed on the user in Richmond.
On the other hand, the user in Richmond would tend to consume less than the
optimal level as he or she is paying more than what the resource would have
cost if there were no externalities. As the proposed regulations will reduce
negative externalities and bring the actual cost of groundwater closer to its
true cost, an improvement in the efficient allocation of groundwater resources
in the proposed groundwater management areas and possibly in some of the
current management areas may be expected.
Businesses and Entities Affected. There are 111 known users of
groundwater withdrawing 300,000 gallons or more in the proposed expansion area.
Of these, 27 are local governments.
Localities Particularly Affected. The proposed expansion of the
Eastern Virginia Groundwater Management Area includes the counties of Essex,
Gloucester, King George, King and Queen, Lancaster, Mathews, Middlesex,
Northumberland, Richmond, and Westmoreland, and the areas of Arlington,
Caroline, Fairfax, Prince William, Spotsylvania, and Stafford counties east of
Interstate 95.
Projected Impact on Employment. The demand for labor to review
applications by DEQ and to prepare the applications for the users by the
consultants is expected to increase. It is conceivable that a sustainable
future supply of groundwater may lead to a sustainable economic activity and
have a positive impact on demand for labor in the long term. However, the
withdrawals of new users or of existing users after the initial ten-year period
may be limited or prohibited in the expanded management area. If such reduction
or prohibition of groundwater withdrawals causes some economic activities to
slow down or cease, a reduction in demand for labor may result.
Effects on the Use and Value of Private Property. Similarly,
the permit fees and compliance costs may reduce the use and value of private
property in the proposed expansion areas. It is conceivable that a sustainable
future supply of groundwater may preserve the use and value of private property
in the long term. However, the withdrawals of new users or of existing users
after the initial ten-year period may be limited or prohibited in the expanded
management area. If such reduction or prohibition of groundwater withdrawals
occurs, a negative impact on the use and value of private property may be
expected.
Small Businesses: Costs and Other Effects. Of the 111 known
entities using more than 300,000 gallons of groundwater, 8 are estimated to be
small businesses. The costs and other effects on the small businesses are the
same as the ones discussed above which include permit fees and costs and added
cost of alternate source of water if no permit is issued for groundwater.
Small Businesses: Alternative Method that Minimizes Adverse
Impact. There is no known alternative that accomplishes the same goals.
Real Estate Development Costs. If a real estate development
project relies on groundwater as a resource, permit fees, other permit costs,
and the added cost of alternate source of water may contribute to the
development costs of the real estate project. Otherwise, no significant effect
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.
____________________________________
1 Current Eastern Virginia Groundwater Management Area
includes the counties of Charles City, Isle of Wight, James City, King William,
New Kent, Prince George, Southampton, Surry, Sussex, and York; the areas of
Chesterfield, Hanover, and Henrico east of Interstate 95; and the cities of
Chesapeake, Franklin, Hampton, Hopewell, Newport News, Norfolk, Poquoson, Portsmouth,
Suffolk, Virginia Beach, and Williamsburg.
Agency's Response to Economic Impact Analysis: The
department has reviewed the economic impact analysis prepared by the Department
of Planning and Budget and has no comment.
Summary:
The proposed amendments expand the Eastern Virginia
Groundwater Management Area to include the counties of Essex, Gloucester, King
George, King and Queen, Lancaster, Mathews, Middlesex, Northumberland,
Richmond, and Westmoreland, and those areas of Arlington, Caroline, Fairfax,
Prince William, Spotsylvania, and Stafford counties that lie east of Interstate
95.
CHAPTER 600
EASTERN VIRGINIA GROUND WATER GROUNDWATER MANAGEMENT AREA
9VAC25-600-10. 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 Groundwater Ground Water
Management Act of 1992 (§ 62.1-254 et seq. of the Code of Virginia).
"Area" means the Eastern Virginia Groundwater
Management Area.
"Board" means the State Water Control Board.
"Ground water "Groundwater management
area" means a geographically defined ground water groundwater
area in which the board has deemed the levels, supply or quality of ground
water groundwater to be adverse to public welfare, health and
safety.
"Ground water" "Groundwater"
means any water, except capillary moisture, beneath the land surface in the
zone of saturation or beneath the bed of any stream, lake, reservoir or other
body of surface water wholly or partially within the boundaries of this
Commonwealth, whatever may be the subsurface geologic structure in which
such water stands, flows, percolates or otherwise occurs.
9VAC25-600-20. Declaration of ground water groundwater
management area.
A. The board hereby orders the declaration of the eastern
part of Virginia as a ground water groundwater management area.
This area shall be known as the Eastern Virginia Groundwater Management Area.
B. The area encompasses the counties of Charles City, Essex,
Gloucester, Isle of Wight, James City, King George, King and Queen,
King William, Lancaster, Mathews, Middlesex, New Kent, Northumberland,
Prince George, Richmond, Southampton, Surry, Sussex, Westmoreland,
and York; the areas of Arlington, Caroline, Chesterfield, Fairfax,
Hanover, and Henrico, Prince William, Spotsylvania, and Stafford
counties east of Interstate 95; and the cities of Chesapeake, Franklin,
Hampton, Hopewell, Newport News, Norfolk, Poquoson, Portsmouth, Suffolk,
Virginia Beach, and Williamsburg.
C. All aquifers located between the land surface and basement
rock within the geographic area defined will be included in the area and will
be subject to the corrective controls set forth in Act.
VA.R. Doc. No. R09-1782; Filed October 1, 2012, 1:43 p.m.
Proposed Regulation
Title of Regulation: 9VAC25-610. Groundwater
Withdrawal Regulations (amending 9VAC25-610-10, 9VAC25-610-20,
9VAC25-610-40, 9VAC25-610-50, 9VAC25-610-60, 9VAC25-610-70, 9VAC25-610-80,
9VAC25-610-90, 9VAC25-610-100, 9VAC25-610-110, 9VAC25-610-120, 9VAC25-610-130,
9VAC25-610-140, 9VAC25-610-150, 9VAC25-610-160, 9VAC25-610-170, 9VAC25-610-190,
9VAC25-610-220, 9VAC25-610-240, 9VAC25-610-250, 9VAC25-610-260, 9VAC25-610-270,
9VAC25-610-280, 9VAC25-610-290, 9VAC25-610-300, 9VAC25-610-310, 9VAC25-610-320,
9VAC25-610-330, 9VAC25-610-340, 9VAC25-610-350, 9VAC25-610-370, 9VAC25-610-380,
9VAC25-610-390; adding 9VAC25-610-85, 9VAC25-610-92, 9VAC25-610-94,
9VAC25-610-96, 9VAC25-610-98, 9VAC25-610-102, 9VAC25-610-104, 9VAC25-610-106,
9VAC25-610-108; repealing 9VAC25-610-400).
Statutory Authority: § 62.1-256 of the Code of
Virginia.
Public Hearing Information:
November 26, 2012 - 1:30 p.m. - James City County, Board
Room, Building F, 101 Mounts Bay Road, Williamsburg, VA
December 4, 2012 - 2 p.m. - Spotsylvania County, Holbert
Building, Board of Supervisors Meeting Room, 9104 Courthouse Road,
Spotsylvania, VA
Public Comment Deadline: January 11, 2013.
Agency Contact: Melissa Porterfield, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4238, FAX (804) 698-4346, or email
melissa.porterfield@deq.virginia.gov.
Basis: Section 62.1-256 of the Code of Virginia
authorizes the State Water Control Board to adopt regulations to administer and
enforce the Ground Water Management Act of 1992 (§ 62.1-254 et seq.) of the
Code of Virginia.
Purpose: The proposed amendments are necessary to
protect the health, safety, or welfare of citizens in both the Eastern Virginia
and Eastern Shore Ground Water Management Areas in order to ensure the
availability of ground water for current and future beneficial uses.
Groundwater levels in parts of the coastal plain are declining to the point
that they are nearing aquifer tops in a number of localities along the fall
line. In addition, levels are declining generally throughout the rest of the
coastal plain. The declines in groundwater levels in the current Eastern
Virginia Ground Water Management Area have created a situation in which many
existing permitted users are unable to renew their withdrawal permits at
permitted amounts when they exceed current use. Also, new or expanded
applications are a challenge to permit. Withdrawing groundwater to the point
that it falls below the top of the aquifer can lead to subsidence or impair the
aquifer's ability to store water in the future, potentially impacting the
availability of groundwater for existing users and severely compromising growth
and development potential throughout the management area.
Over the years our understanding of the coastal plain aquifer
system has changed. In addition, we need to address what constitutes an
adequate margin of safety and what technical criteria are defensible for
determining whether or not to issue a permit and for what amounts.
Substance: The regulations are amended for consistency
with other water permit program regulations. The application requirements for
different types of permits and situations have been separated into different
regulatory sections to provide more clarity concerning the requirements for
complete applications. Previously, different types of permits were listed in
one section, making the regulations confusing and difficult to use.
Throughout the regulation, the term "ground water"
has been changed to the term "groundwater" to be consistent with
common usage and terminology of the U.S. Geological Survey. The terms
"amend," "amended," and "amendment" have been
changed to the terms "modify," "modified," and
"modification" throughout the regulation to be consistent with the
use of these terms in other water permit programs.
Preapplication meetings are now required prior to submitting a
permit application for a withdrawal. This will reduce the number of revisions
it takes for the applicant to achieve a complete application and will reduce
the number of re-reviews required to be conducted by agency staff. A provision
has been added to the regulations that would allow the agency the ability to not
require information to be submitted by applicants as part of a permit
application if the agency already has the same information in their possession
and the information has not changed over the course of the previous permit
term. This information would be discussed and validated at preapplication
meetings.
New sections have been added to address surface water and
groundwater conjunctive use permits and supplemental drought relief permits.
Conjunctive use permits will address the balance between available surface
water sources and the need to withdraw supplemental groundwater to meet water
demand. A section has been added to the regulations to address the requirements
for supplemental drought relief permits. Supplemental drought relief permits
are permits to withdraw groundwater to meet human consumption after mandatory
water use restrictions have been implemented.
The water conservation and management plan section has been
revised to specify the conservation measures and requirements that must be met,
depending on the use of the groundwater. This allows the agency to specify
specific water conservation measures that must be addressed in water
conservation and management plans for specific uses. Due to the finite nature
of the groundwater resource, conservation measures are required to be
implemented through the development of water conservation and management plans.
Conservation measures of high volume water consumers on municipal and
nonmunicipal public water supplies shall be discussed in plans to ensure that
conservation measures are being implemented and applied. Water conservation and
management plans will become an enforceable part of the permit.
The regulations now identify information to be provided to
ensure that the need for the groundwater has been documented and that
alternatives to using groundwater have been investigated and considered.
Previously there was limited information provided to applicants concerning
their justification of need. The regulations should provide more consistency
for applicants concerning the information they provide to justify their need to
withdraw groundwater. Projected demand information developed as part of water
supply plans developed to comply with 9VAC25-780 may be used to meet some of
the justification of need requirements.
A section has been added to allow for the agency to estimate an
area of impact of a small withdrawal based on information available instead of
requiring geotechnical investigations to occur. Adding this approach will allow
some applicants to accept a default area of impact in lieu of conducting
geotechnical investigations. The geotechnical investigations add to the cost of
applying for a groundwater withdrawal permit. Applicants will retain the
ability to conduct geotechnical investigations in lieu of accepting the
agency's default area of impact.
The regulations are also being revised to be consistent with
current agency guidance concerning the 80% drawdown criteria evaluation. This
change is needed because additional information concerning the geologic
structure of the coastal plain aquifer system and its effects on evaluating
withdrawal impacts have been discovered since the regulations were last
updated.
For consistency, additional permit conditions that will be
applicable to all permits are being specified in the regulations. These changes
will provide the applicant with knowledge of minimum permit conditions that
they will be required to comply with before they apply for a permit and will
increase certainty to the regulated community.
Issues: The primary advantage to the public will be that
these regulations manage groundwater resources to maintain resource
availability for future Virginians. There may be financial savings and
processing time benefits for some applicants. There are no disadvantages to the
public from managing the groundwater resource.
The primary advantage to the Commonwealth is that groundwater
resources will be comprehensively managed. There are no disadvantages to the
Commonwealth from managing the groundwater resource.
This regulatory revision addresses conjunctive use systems as
well as supplemental drought relief wells. These types of water uses are
currently described in statute; however, the regulatory revision provides
details concerning the requirements for these permits. These regulations are
important to all localities that are regulated by these regulations. With the
expansion of the groundwater management area, which is regulated under a
separate regulation, additional localities will be required to obtain groundwater
withdrawal permits. These permits are issued based on demonstrated need for
groundwater, require water conservation and mitigation of impacts, and specify
maximum amounts of groundwater that may be withdrawn. All withdrawers of
groundwater, unless exempted by statute, are required to obtain a permit, which
places additional regulations on withdrawers of groundwater occurring within
the management area.
The Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The State
Water Control Board proposes to 1) require that the need for groundwater
withdrawal is documented, 2) require preapplication meetings prior to permit
application for groundwater withdrawals, 3) allow the Department of
Environmental Quality the ability to not require information if the agency
already has the same information, 4) to allow for the Department of
Environmental Quality to estimate an area of impact of a small withdrawal, and
5) clarify and format numerous requirements in the regulations or in the Code
of Virginia that already exist.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. The State Water Control Board is
proposing to include details in the regulations concerning how the need for a
groundwater withdrawal is documented and that alternatives to using groundwater
have been investigated and considered. This requirement is currently included
in statute and is described in agency guidance. According to the Department of
Environmental Quality (DEQ), the need for groundwater may be documented by
using certain publicly available demographic information such as population
growth projections and comprehensive plans for localities. DEQ estimates that
the cost of the need documentation may add $2,000 to $4,000 to the permit
costs, and that information developed as part of regional water supply plans
may be used as part of this documentation. Since the regulations provide more
details concerning the need for the groundwater withdrawal and the alternative
water supplies considered, this information will provide more certainty to the
review process. This requirement will increase the amount of information that
will have to be reviewed and considered, however providing these requirements
in regulation should reduce the number of revisions required to the permit
application concerning the needs determination.
The compliance costs associated with this requirement would be
more significant where the need for groundwater cannot be justified and
documented. In those cases, applicants may be denied a permit and may have to
abandon their plans or revert to an alternate source for their water demand.
For example, a locality may be interested in obtaining a permit to withdraw
more groundwater than can be used by the locality and then marketing the
groundwater not needed by the locality to other users. Since the need for
groundwater would not be supported by the demographic information for the
locality, a permit may be denied. In those cases, applicants may have to give
up their plans to sell groundwater or revert to alternate sources. The main
benefit of this requirement is to make sure that groundwater is conserved, is
sustainable and that aquifers are protected from degradation. Statute prohibits
the issuance of permits for more water than can be applied to a proposed
beneficial use.
Also, since the entire coastal plain aquifer system is
interconnected, withdrawals from one well may affect others. According to DEQ,
the mechanics of Virginias coastal plain aquifer system is such that
groundwater levels start declining along the fall line first (approximately
Interstate 95 line) and propagate toward the Atlantic Ocean. For example, a
major users withdrawal in the Tidewater area may reduce the level of
groundwater first in the Richmond area and then in Tidewater. When actions of
an individual impose involuntary costs on somebody else, a negative externality
is said to exist. In the example given, a groundwater user in Tidewater may force
the user in Richmond to develop alternate water sources and impose involuntary
costs. The over pumping of groundwater by a groundwater user has the potential
to exacerbate the size of negative externalities associated with groundwater
consumption. Thus, the proposed need documentation is expected to help justify
the amount of groundwater needed by a groundwater user and help mitigate the
negative externalities on other users wanting to use groundwater.
The board also proposes to require preapplication meetings
prior to permit application for groundwater withdrawals. According to DEQ,
preapplication meetings will be informative for the applicants and help them
achieve a complete application package with a reduced number of revisions and
re-reviews required to be conducted by DEQ staff. The main benefit of this
proposed change is a more streamlined permit process with a reduced number of
meetings, visits, reduced application processing time, and consequently reduced
administrative costs for the permit applicant and DEQ.
Another change will allow DEQ to not require certain
information from the permit applicants if DEQ already has the information. This
change is expected to reduce permit application costs that would be associated
with reproduction of already existing information and its submittal to DEQ.
One of the proposed changes will allow DEQ to estimate an area
of impact of a small withdrawal from the information already available instead
of requiring an aquifer test. The applicants will have a right to conduct their
own geotechnical investigations instead of accepting the default area of impact
estimated by DEQ. The cost of the aquifer test typically ranges from $10,000 to
$25,000. Thus, the proposed change is expected to reduce the permit application
costs by $10,000 to $25,000 if the default area of impact is accepted. DEQ does
not expect a significant increase in staff time to develop a default estimate
as most of this work is currently done.
The remaining changes are generally related to formatting of
the regulations and clarification of existing requirements and are not expected
to create significant economic effects other than possibly reducing the
likelihood of costly mistakes that could arise from unclear regulatory
language.
Businesses and Entities Affected. There are 394 known users of
groundwater withdrawing 300,000 gallons or more in the Eastern Virginia and
Eastern Shore Groundwater Management Areas. Of these entities, 111 are located
in the expanded part of the Eastern Virginia Groundwater Management Area which
is at the proposed stage of the rulemaking process at this time.
Localities Particularly Affected. Eastern Shore Groundwater
Management Area includes the counties of Accomack and Northampton.
Current Eastern Virginia Groundwater Management Area includes
the counties of Charles City, Isle of Wight, James City, King William, New
Kent, Prince George, Southampton, Surry, Sussex, and York; the areas of
Chesterfield, Hanover, and Henrico east of Interstate 95; and the cities of
Chesapeake, Franklin, Hampton, Hopewell, Newport News, Norfolk, Poquoson,
Portsmouth, Suffolk, Virginia Beach, and Williamsburg.
The proposed expansion of the Eastern Virginia Groundwater
Management Area includes the counties of Essex, Gloucester, King George, King
and Queen, Lancaster, Mathews, Middlesex, Northumberland, Richmond, and
Westmoreland, and the areas of Arlington, Caroline, Fairfax, Prince William,
Spotsylvania, and Stafford counties east of Interstate 95.
Projected Impact on Employment. The proposed preapplication
meetings, no longer requiring submission of existing information, and allowing
DEQ to estimate a default area of impact are expected to reduce the demand for
labor by the applicants and the agency. However, the proposed need
documentation is expected to increase the demand for labor by the agency and
the applicants.
It is also conceivable that where the need cannot be justified
and documented and therefore no permit can be issued, the proposed need
documentation may reduce or slow down economic activity and cause a reduction
in demand for labor. On the other hand, a permit denial may help preserve
groundwater resources of other localities and help them maintain a sustainable
future supply of groundwater which may lead to a sustainable economic activity and
have a positive impact on demand for labor in the long term.
Effects on the Use and Value of Private Property. Similarly,
the proposed preapplication meetings, no longer requiring submission of
existing information, and allowing DEQ to estimate a default area of impact are
expected to reduce compliance costs of the private entities and could add to
their asset values. However, the proposed need documentation is expected to
increase compliance costs and could reduce their asset values.
It is also conceivable that where the need cannot be justified
and documented and therefore no permit can be issued, the proposed need
documentation may reduce the use and value of private property. On the other
hand, a permit denial may help preserve groundwater resources of other
localities and help them maintain a sustainable future supply of groundwater
which may lead to a sustainable economic activity and have a positive impact on
the use and value of private property in the long term.
Small Businesses: Costs and Other Effects. Of the 394 known
entities using more than 300,000 gallons of groundwater, 111 are estimated to
be small businesses. The costs and other effects on the small businesses are
the same as the ones discussed above which include the costs of the proposed need
documentation.
Small Businesses: Alternative Method that Minimizes Adverse
Impact. There is no known alternative that accomplishes the same goals.
Real Estate Development Costs. If a real estate development
project relies on groundwater as a resource, the costs of the need
documentation as discussed above may contribute to the development costs of the
real estate project. Otherwise, no significant effect 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
department has reviewed the economic impact analysis prepared by the Department
of Planning and Budget and has no comment.
Summary:
The regulations are amended to be more consistent with
current administrative and application processing practices of other water
permit program regulations. The application requirements for different types of
permits and situations are separated into different regulatory sections to
provide more clarity concerning the requirements for complete applications. New
sections are added to address surface water and groundwater conjunctive use
permits and supplemental drought relief permits. The water conservation and
management plan section is revised to specify the conservation measures and
requirements that must be met depending on the use of the groundwater. The
regulations also now identify information to be provided to ensure that the
need for the groundwater is documented and that alternatives to using
groundwater are investigated and considered. A section is added allowing the
agency to estimate an area of impact for mitigation of a small withdrawal based
on available modeled information instead of requiring geotechnical
investigations to occur. The regulations are also revised to be consistent with
current agency guidance concerning the 80% drawdown criteria evaluation.
Additional permit conditions are specified in the regulations that will be
applicable to all permits, which will clarify the requirements that groundwater
withdrawers must meet.
CHAPTER 610
GROUND WATER GROUNDWATER WITHDRAWAL REGULATIONS
Part I
General
9VAC25-610-10. Definitions.
Unless a different meaning is required by the context, the
following terms as used in this chapter shall have the following meanings:
"Act" means the Ground Water Management Act of
1992, Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 of the Code of Virginia.
"Adverse impact" means reductions in ground
water groundwater levels or changes in ground water groundwater
quality that limit the ability of any existing ground water groundwater
user lawfully withdrawing or authorized to withdraw ground water groundwater
at the time of permit or special exception issuance to continue to withdraw the
quantity and quality of ground water groundwater required by the
existing use. Existing groundwater users include all those persons who
have been granted a ground water groundwater withdrawal permit
subject to this chapter and all other persons who are excluded from permit
requirements by 9VAC25-610-50.
"Agricultural use" means utilizing groundwater for
the purpose of agricultural, silvicultural, horticultural, or aquacultural
operations. Agricultural use includes withdrawals for turf farm operations, but
does not include withdrawals for landscaping activities or turf installment and
maintenance associated with landscaping activities.
"Applicant" means a person filing an application to
initiate or enlarge a ground water groundwater withdrawal in a ground
water groundwater management area.
"Area of impact" means the areal extent of each
aquifer where more than one foot of drawdown is predicted to occur due to a
proposed withdrawal.
"Beneficial use" includes, but is not limited to
domestic (including public water supply), agricultural, commercial, and
industrial uses.
"Board" means the State Water Control Board.
"Consumptive use" means the withdrawal of ground
water groundwater, without recycle of said waters to their source of
origin.
"Department" means the Department of Environmental
Quality.
"Draft permit" means a prepared document indicating
the board's tentative decision relative to a permit action.
"Director" means the director of the Department of
Environmental Quality.
"Geophysical investigation" means any hydrogeologic
evaluation to define the hydrogeologic framework of an area or determine the
hydrogeologic properties of any aquifer or confining unit to the extent that
withdrawals associated with such investigations do not result in unmitigated
adverse impacts to existing ground water groundwater users.
Geophysical investigations include, but are not limited to, pump tests and
aquifer tests.
"Ground water" "Groundwater"
means any water, except capillary moisture, beneath the land surface in the
zone of saturation or beneath the bed of any stream, lake, reservoir or other
body of surface water wholly or partially within the boundaries of this
Commonwealth, whatever the subsurface geologic structure in which such water
stands, flows, percolates or otherwise occurs.
"Historic prepumping water levels" means ground
water groundwater levels in aquifers prior to the initiation of any ground
water groundwater withdrawals. For the purpose of this chapter, in
the Eastern Virginia and Eastern Shore Ground Water Groundwater
Management Areas, historic prepumping water levels are defined as water levels
present in aquifers prior to 1890.
"Human consumption" means the use of water for
drinking, bathing, showering, cooking, dishwashing, and maintaining oral
hygiene.
"Human consumptive use" means the withdrawal of
ground water for private residential domestic use and that portion of ground
water withdrawals in a public water supply system that support residential
domestic uses and domestic uses at commercial and industrial establishments.
"Mitigate" means to take actions necessary to
assure that all existing ground water groundwater users at the
time of issuance of a permit or special exception who experience adverse
impacts continue to have access to the amount and quality of ground water
groundwater needed for existing uses.
"Permit" means a ground water groundwater
withdrawal permit issued by the board under the Ground Water
Management Act of 1992 permitting the withdrawal of a specified quantity of
ground water groundwater under specified conditions in a ground
water groundwater management area.
"Permittee" means a person who currently has an
effective ground water groundwater withdrawal permit issued by
the board under the Ground Water Act of 1992.
"Person" means any and all persons, including
individuals, firms, partnerships, associations, public or private institutions,
municipalities or political subdivisions, governmental agencies, or private or
public corporations organized under the laws of this Commonwealth or any other
state or country.
"Practicable" means available and capable of
being done after taking into consideration cost, existing technology, and
logistics in light of overall project purposes.
"Public hearing" means a fact finding proceeding
held to afford interested persons an opportunity to submit factual data, views
and comments to the board pursuant to the board's Procedural Rule No. 1.
§ 62.1-44.15:02 of the Code of Virginia.
"Salt water intrusion" means the encroachment of
saline waters in any aquifer that create adverse impacts to existing ground
water groundwater users or is counter to the public interest.
"Special exception" means a document issued by the
board for withdrawal of ground water groundwater in unusual
situations where requiring the user to obtain a ground water groundwater
withdrawal permit would be contrary to the purpose of the Ground Water
Management Act of 1992. Special exceptions allow the withdrawal of a specified
quantity of ground water groundwater under specified conditions
in a ground water groundwater management area.
"Supplemental drought relief well" means a well
permitted to withdraw a specified amount of groundwater to meet human
consumption needs during declared drought conditions after mandatory water use
restrictions have been implemented.
"Surface water and ground water groundwater
conjunctive use system" means an integrated water supply system wherein
surface water is the primary source and ground water groundwater
is a supplemental source that is used to augment the surface water source when
the surface water source is not able to produce the amount of water necessary
to support the annual water demands of the system.
"Well" means any artificial opening or artificially
altered natural opening, however made, by which ground water groundwater
is sought or through which ground water groundwater flows under
natural pressure or is intended to be withdrawn.
"Withdrawal system" means (i) one or more wells or
withdrawal points located on the same or contiguous properties under common
ownership for which the withdrawal is applied to the same beneficial use or
(ii) two or more connected wells or withdrawal points which are under common
ownership but are not necessarily located on contiguous properties.
9VAC25-610-20. Purpose.
The Groundwater Ground Water Management Act of
1992 recognizes and declares that the right to reasonable control of all ground
water groundwater resources within the Commonwealth belongs to the
public and that in order to conserve, protect and beneficially utilize the ground
water groundwater resource and to ensure the public welfare, safety
and health, provisions for management and control of ground water groundwater
resources are essential. This chapter delineates the procedures and
requirements to be followed when establishing Groundwater Management Areas and
the issuance of Groundwater Withdrawal Permits by the board pursuant to the Groundwater
Ground Water Management Act of 1992.
9VAC25-610-40. Prohibitions and requirements for ground
water groundwater withdrawals.
A. No person shall withdraw, attempt to withdraw, or allow
the withdrawal of ground water groundwater within a ground
water groundwater management area, except as authorized pursuant to
a ground water groundwater withdrawal permit, or as excluded in
9VAC25-610-50.
B. No permit or special exception shall be issued for more ground
water groundwater than can be applied to the proposed beneficial
use.
9VAC25-610-50. Exclusions.
The following do not require a ground water groundwater
withdrawal permit:
1. Withdrawals of less than 300,000 gallons per month;
2. Withdrawals associated with temporary construction
dewatering that do not exceed 24 months in duration;
3. Withdrawals associated with a state-approved ground
water groundwater remediation that do not exceed 60 months in
duration;
4. Withdrawals for use by a ground water groundwater
source heat pump where the discharge is reinjected into the aquifer from which
it was withdrawn;
5. Withdrawals from ponds recharged by ground water groundwater
without mechanical assistance;
6. Withdrawals for the purpose of conducting geophysical
investigations, including pump tests;
7. Withdrawals coincident with exploration for and extraction
of coal or activities associated with coal mining regulated by the Department
of Mines, Minerals, and Energy;
8. Withdrawals coincident with the exploration for or
production of oil, gas or other minerals other than coal, unless such
withdrawal adversely impacts aquifer quantity or quality or other ground
water groundwater users within a ground water groundwater
management area;
9. Withdrawals in any area not declared to be a ground
water groundwater management area;
10. Withdrawal of ground water groundwater
authorized pursuant to a special exception issued by the board; and
11. Withdrawal of ground water groundwater
discharged from free flowing springs where the natural flow of the spring has
not been increased by any method.
9VAC25-610-60. Effect of a permit.
A. Compliance with a ground water groundwater
withdrawal permit constitutes compliance with the permit requirements of the Groundwater
Ground Water Management Act of 1992.
B. The issuance of a permit does not convey any property
rights in either real or personal property, or any exclusive privileges, nor
does it authorize injury to private property or any invasion of personal rights
or any infringement of federal, state or local law or regulation.
Part II
Declaration of Ground Water Management Areas
9VAC25-610-70. Criteria for consideration of a ground water
groundwater management area.
The board upon its own motion, or in its discretion, upon
receipt of a petition by any county, city or town within the area in question,
may initiate a ground water groundwater management area
proceeding, whenever in its judgment there is reason to believe that any one of
the four following conditions exist:
1. Ground water Groundwater levels in the area
are declining or are expected to decline excessively;
2. The wells of two or more ground water groundwater
users within the area are interfering or may be reasonably expected to
interfere substantially with one another;
3. The available ground water groundwater supply
has been or may be overdrawn; or
4. The ground water groundwater in the area has
been or may become polluted.
9VAC25-610-80. Declaration of ground water groundwater
management areas.
A. If the board finds that any of the conditions listed in
9VAC25-610-70 exist, and further determines that the public welfare, safety and
health require that regulatory efforts be initiated, the board shall declare
the area in question a ground water groundwater management area,
by regulation.
B. Such regulations shall be promulgated in accordance with
the agency's Public Participation Guidelines (9VAC25-10-10 et seq.) (9VAC25-11)
and the Administrative Process Act (§ 9-6.14:1 et seq. of the Code of
Virginia) (§ 2.2-4000 et seq. of the Code of Virginia).
C. The regulation shall define the boundaries of the ground
water groundwater management area, and identify the aquifers to be
included in the ground water groundwater management area. Any
number of aquifers that either wholly or partially overlie one another may be
included within the same ground water groundwater management
area.
D. After adoption the board shall mail a copy of the
regulation to the mayor or chairman of the governing body of each county, city
or town within which any part of the ground water groundwater
management area lies.
Part III
Permit Application and Issuance
9VAC25-610-85. Preapplication meeting.
A. The applicant and owner or operator intending to apply
for a new or expanded application for a groundwater withdrawal or reapply for a
current permitted withdrawal shall schedule a meeting with the department prior
to submitting their permit application. The purpose of the meeting is to have a
mutual exchange of information on the proposed application and applicable
regulatory requirements. If the preapplication meeting is being held for a
public water supply system, the Virginia Department of Health may participate
in the preapplication meeting by providing information and guidance to assist
the applicant with meeting Virginia Department of Health regulatory
requirements.
B. For applicants reapplying for a current permitted
withdrawal, during the preapplication meeting, the department shall discuss
information provided in previous permit applications and regular submittals
that may or may not be resubmitted as part of the permit application.
Part III
Permit Application and Issuance
9VAC25-610-90. Application for a permit by groundwater users
in existing groundwater management areas withdrawing prior to July 1, 1992.
A. Persons withdrawing ground water groundwater
or who have rights to withdraw ground water groundwater prior to
July 1, 1992, in the Eastern Virginia or Eastern Shore Ground Water Groundwater
Management Areas and not excluded from requirements of this chapter by
9VAC25-610-50 shall apply for a permit.
1. Any person who was issued a certificate of ground water
groundwater right or a permit to withdraw ground water groundwater
prior to July 1, 1991, and who was withdrawing ground water groundwater
pursuant to said permit or certificate on July 1, 1992, shall file an
application on or before December 31, 1992, to continue said withdrawal. The
applicant shall demonstrate the claimed prior withdrawals through withdrawal
reports required by the existing certificate or permit or by reports required
by Water Withdrawal Reporting Regulations (9VAC25-200-10 et seq.).
2. Any person who was issued a certificate of ground water
groundwater right or a permit to withdraw ground water groundwater
prior to July 1, 1991, and who had not initiated the withdrawal prior to July
1, 1992, may initiate a withdrawal on or after July 1, 1992, pursuant to the
terms and conditions of the certificate or permit and shall file an application
for a ground water groundwater withdrawal permit on or before
December 31, 1995, to continue said withdrawal. The applicant shall demonstrate
the claimed prior withdrawals through withdrawal reports required by the
existing certificate or permit or by reports required by Water Withdrawal
Reporting Regulations (9VAC25-200-10 et seq.).
3. Any person who was issued a permit to withdraw ground
water groundwater on or after July 1, 1991, and prior to July 1,
1992, shall not be required to apply for a ground water groundwater
withdrawal permit until the expiration of the permit to withdraw ground
water groundwater or 10 years from the date of issuance of the
permit to withdraw ground water, groundwater whichever occurs
first. Such persons shall reapply for a ground water groundwater
withdrawal permit as described in subsection D of this section 9VAC25-610-96.
4. Any person withdrawing ground water groundwater
for agricultural or livestock watering purposes on or before July 1, 1992,
shall file an application for a ground water groundwater
withdrawal permit on or before December 31, 1993. The applicant shall
demonstrate the claimed prior withdrawals by voluntary withdrawal reports
required by Water Withdrawal Reporting Regulations (9VAC25-200-10 et seq.)
when such reports have been filed with the board. When such reports are not
available, estimates of withdrawal will be accepted that are based on the area
irrigated, depth of irrigation, and annual number of irrigations; pumping
capacity and annual pumping time; annual energy consumption for pumps, energy
consumption per hour, and pumping capacity; number and type of livestock
watered annually; number and type of livestock where water is used for cooling
purposes; or other methods approved by the board.
5. Any political subdivision, or authority serving a political
subdivision, holding a certificate of ground water groundwater
right or a permit to withdraw ground water groundwater issued
prior to July 1, 1992, for the operation of a public water supply well for the
purpose of providing supplemental water during drought conditions, shall file
an application on or before December 31, 1992. Any political subdivision, or
authority serving a political subdivision, shall submit, as part of the
application, a water conservation and management plan as described in
9VAC25-610-100 B.
6. Any person who is required to apply in subdivision 1, 2, or
5 of this subsection section and who uses the certificated or
permitted withdrawal to operate a public water supply system shall provide a
copy of the waterworks operation permit, or equivalent, with the required
application for a ground water groundwater withdrawal permit.
7. Any person described in subdivision 1, 2, 3, or 5 of this subsection
section who files a complete application by the date required may
continue to withdraw ground water groundwater pursuant to the
existing certificate or permit until such time as the board takes action on the
outstanding application for a ground water groundwater withdrawal
permit.
8. Any person described in subdivision 4 of this subsection
section who files a complete application by the date required may
continue his existing withdrawal until such time as the board takes action on
the outstanding application for a ground water groundwater
withdrawal permit.
9. Any person described in subdivision 1, 2, 3, 4, or 5 of
this subsection section who files an incomplete application by
the date required may continue to withdraw ground water groundwater
as described in subdivisions 7 and 8 of this subsection section
provided that all information required to complete the application is provided
to the board within 60 days of the board's notice to the applicant of
deficiencies. Should such person not provide the board the required information
within 60 days, he shall cease withdrawals until he provides any additional
information to the board and the board concurs that the application is
complete.
10. A complete application for those persons described in
subdivision 1, 2, 3, 4, or 5 of this subsection section shall
contain:
a. A ground water withdrawal permit application completed
in its entirety. Application forms shall be submitted in a format specified by
the board. Such application forms are available from the Department of
Environmental Quality;
b. Well construction documentation for all wells associated
with the application;
c. Locations of all wells associated with the application
shown on United States Geological Survey 7-1/2 minute topographic maps or
copies of such maps;
d. Withdrawal reports required by the existing certificate
or permit, reports required by Water Withdrawal Reporting Regulations
(9VAC25-200-10 et seq.), or estimates of withdrawals as described in
subdivision 4 of this subsection to support any claimed prior withdrawal; and
e. A copy of the Virginia Department of Health waterworks
operation permit, or equivalent, where applicable.
f. Persons described in subdivision 5 of this subsection
shall submit a water conservation and management plan as described in
9VAC25-610-100.
g. The application shall have an original signature as
described in 9VAC25-610-150.
a. The permit fee as required by the Fees for Permits and
Certificates Regulations (9VAC25-20);
b. A groundwater withdrawal permit application completed in
its entirety with all maps, attachments, and addenda that may be required.
Application forms shall be submitted in a format specified by the board. Such
application forms are available from the Department of Environmental Quality;
c. A signature as described in 9VAC25-610-150;
d. Well construction documentation for all wells associated
with the application submitted on the Water Well Completion Report, Form GW2,
which includes the following information:
(1) The depth of the well;
(2) The diameter, top and bottom, and material of each
cased interval;
(3) The diameter, top and bottom, for each screened
interval; and
(4) The depth of pump intake.
e. Locations of all wells associated with the application
shown on United States Geological Survey 7-1/2 minute topographic maps. The
applicant shall provide the latitude and longitude coordinates in a datum
specified by the department for each existing and proposed well. The detailed
location map shall be of sufficient detail such that all wells may be easily
located for site inspection;
f. A map identifying the service areas for public water
supplies;
g. Information on surface water and groundwater conjunctive
use systems as described in 9VAC25-610-104 if applicable.
h. Persons described in subdivision 5 of this section shall
submit a water conservation and management plan as described in 9VAC25-610-100;
i. Withdrawal reports required by the existing groundwater
certificate or permit, reports required by Water Withdrawal Reporting
Regulations (9VAC25-200), or estimates of withdrawals as described in
subdivision 4 of this section to support any claimed prior withdrawal; and
j. A copy of the Virginia Department of Health waterworks
operation permit, or equivalent, where applicable.
11. The board may waive the requirement for information
listed in subdivision 10 of this section to be submitted if it has access to
substantially identical information that remains accurate and relevant to the
permit application.
11. 12. Any person described in subdivision 1,
2, 3, or 5 of this subsection section who fails to file an
application by the date required creates the presumption that all claims to ground
water groundwater withdrawal based on historic use have been
abandoned. Should any such person wish to rebut the presumption that claims to ground
water groundwater withdrawal based on historic use have been
abandoned, he shall have filed an application with a letter of explanation to
the board by November 21, 1993. Any such person failing to rebut the
presumption that claims to ground water groundwater withdrawal
based on historic use have been abandoned who wishes to withdraw ground
water groundwater shall apply for a new withdrawal as described in subsection
C of this section 9VAC25-610-94.
12. 13. Any person described in subdivision 4 of
this subsection section who fails to file an application by the
date required creates the presumption that all claims to ground water groundwater
withdrawal based on historic use have been abandoned. Should any such person
wish to rebut the presumption that claims to ground water groundwater
withdrawal based on historic use have been abandoned, he may do so by filing an
application with a letter of explanation to the board within 60 days of the
original required date or within 60 days of January 1, 1999, whichever is
later. Any such person failing to rebut the presumption that claims to ground
water groundwater withdrawal based on historic use have been
abandoned who wishes to withdraw ground water groundwater shall
apply for a new withdrawal as described in subsection C of this section 9VAC25-610-94.
B. Persons withdrawing ground water when a ground water
management area is declared or expanded after July 1, 1992, and not excluded
from requirements of this chapter by 9VAC25-610-50 shall apply for a permit.
1. Any person withdrawing ground water in an area that is
declared to be a ground water management area after July 1, 1992, shall file an
application for a ground water within six months of the effective date of the
regulation creating or expanding the ground water management area. The
applicant shall demonstrate the claimed prior withdrawals through withdrawal
reports required by Water Withdrawal Reporting Regulations (9VAC25-200-10 et
seq.). In the case of agricultural ground water withdrawals not required to report
by Water Withdrawal Reporting Regulations, estimates of withdrawal will be
accepted that are based on the area irrigated, depth of irrigation, and annual
number of irrigations; pumping capacity and annual pumping time; annual energy
consumption for pumps, energy consumption per hour, and pumping capacity;
number and type of livestock watered annually; number and type of livestock
where water is used for cooling purposes; or other methods approved by the
board.
2. Any person withdrawing ground water who uses the
withdrawal to operate a public water supply system shall provide a copy of the
waterworks operation permit, or equivalent, with the required application for a
ground water withdrawal permit.
3. Any person who is required to apply for a ground water
withdrawal permit and files a complete application within six months after the
effective date of the regulation creating or expanding a ground water
management area may continue their withdrawal until such time as the board
takes action on the outstanding application for a ground water withdrawal
permit.
4. Any person who is required to apply for a ground water
withdrawal permit and files an incomplete application within six months after
the effective date of the regulation creating or expanding a ground water
management area may continue to withdraw ground water as described in
subdivision 3 of this subsection provided that all the information required to
complete the application is provided to the board within 60 days of the board's
notice to the applicant of deficiencies. Should such person not provide the
board the required information within 60 days, he shall cease withdrawals until
he provides any additional information to the board and the board concurs that
the application is complete.
5. A complete application for those persons described in
subdivision 1 of this subsection shall contain:
a. A ground water withdrawal permit application completed
in its entirety. Application forms shall be submitted in a format specified by
the board. Such application forms are available from the Department of
Environmental Quality;
b. Well construction documentation for all wells associated
with the application;
c. Locations of all wells associated with the application
shown on United States Geological Survey 7-1/2 minute topographic maps or
copies of such maps;
d. Withdrawal reports required by Water Withdrawal
Reporting Regulations (9VAC25-200-10 et seq.) or estimates of withdrawals as
described in subdivision 1 of this subsection to support any claimed prior
withdrawal;
e. A copy of the Virginia Department of Health waterworks
operation permit, where applicable; and
f. The application shall have an original signature as
described in 9VAC25-610-150.
6. Any person who fails to file an application within six
months after the effective date creating or expanding a ground water management
area creates the presumption that all claims to ground water withdrawal based
on historic use have been abandoned. Should any such person wish to rebut the
presumption that claims to ground water withdrawal based on historic use have
been abandoned, they may do so by filing an application with a letter of
explanation to the board within eight months after the date creating or
expanding the ground water management area. Any such person failing to rebut
the presumption that claims to ground water withdrawal based on historic use
have been abandoned who wishes to withdraw ground water shall apply for a new
withdrawal as described in subsection C of this section.
C. Persons wishing to initiate a new withdrawal or expand
an existing withdrawal in any ground water management area and not excluded
from requirements of this chapter by 9VAC25-610-50 shall apply for a permit.
1. A ground water withdrawal permit application shall be
completed and submitted to the board and a ground water withdrawal permit
issued by the board prior to the initiation of any withdrawal not specifically
excluded in 9VAC25-610-50.
2. A complete ground water withdrawal permit application
for a new or expanded withdrawal, at a minimum, shall contain the following:
a. A ground water withdrawal permit application completed
in its entirety with all maps, attachments, and addenda that may be required;
b. The application shall include notification from the
local governing body of the county, city or town in which the withdrawal is to
occur that the location and operation of the withdrawing facility is in
compliance with all ordinances adopted pursuant to Chapter 22 (§ 15.2-2200 et
seq.) of Title 15.2 of the Code of Virginia. If the governing body of any
county, city or town fails to respond within 45 days following receipt of a
written request by certified mail, return receipt requested, by an applicant
for certification that the location and operation of the proposed facility is
consistent with all ordinances adopted pursuant to Chapter 22 (§ 15.2-2200 et
seq.) of Title 15.2 of the Code of Virginia, the location and operation of the
proposed facility shall be deemed to comply with the provisions of such
ordinances for the purposes of this chapter;
c. The application shall have an original signature as
described in 9VAC25-610-150;
d. The application shall include locations of all wells
associated with the application shown on United States Geological Survey 7-1/2
minute topographic maps or copies of such maps and a detailed location map of
each existing and proposed well. The detailed location map shall be of
sufficient detail such that all wells may be easily located for site
inspection;
e. A completed well construction report for all existing
wells associated with the application. Well construction report forms will be
in a format specified by the board and are available from the Department of
Environmental Quality;
f. An evaluation of the lowest quality water needed for the
intended beneficial use;
g. An evaluation of sources of water supply, other than
ground water, including sources of reclaimed water; and
h. A water conservation and management plan as described in
9VAC25-610-100.
3. In addition to requirements contained in subdivision 2
of this subsection, the board may require any or all of the following
information prior to considering an application complete.
a. A plan to mitigate potential adverse impacts due to the
proposed withdrawal on existing ground water users.
b. The installation of monitoring wells and the collection
and analysis of drill cuttings, continuous cores, geophysical logs, water
quality samples or other hydrogeologic information necessary to characterize
the aquifer system present at the proposed withdrawal site.
c. The completion of pump tests or aquifer tests to
determine aquifer characteristics at the proposed withdrawal site.
d. Other information that the board believes is necessary
to evaluate the application.
D. Duty to reapply.
1. Any permittee with an effective permit shall submit a
new permit application at least 270 days before the expiration date of an
effective permit unless permission for a later date has been granted by the
board.
2. Permittees who have effective permits shall submit a new
application 270 days prior to any proposed modification to their activity which
will:
a. Result in an increase of withdrawals above permitted
limits; and
b. Violate or lead to the violation of the terms and
conditions of the permit.
3. The applicant shall provide all information described in
subdivisions C 1 and 2 of this section and may be required to provide any
information described in subdivision C 3 of this section for any reapplication.
E. Where the board considers an application incomplete
under the requirements of this section, the board may require the submission of
additional information after an application has been filed, and may suspend
processing of any application until such time as the applicant has supplied
missing or deficient information and the board considers the application
complete. Further, where the applicant becomes aware that he omitted one or
more relevant facts from a permit application, or submitted incorrect
information in a permit application or in any report to the board, he shall
immediately submit such facts or the correct information.
F. When an application does not accurately describe an
existing or proposed ground water withdrawal system, the board may require the
applicant to amend the existing application, submit a new application, or
submit new applications before the application will be processed.
G. All persons required by this chapter to apply for
ground water withdrawal permits shall submit application forms in a format
specified by the board. Such application forms are available from the
Department of Environmental Quality.
H. No ground water withdrawal permit application shall be
considered complete until a permit fee is submitted as required by regulations
in Fees for Permits and Certificates (9VAC25-20-10 et seq.).
9VAC25-610-92. Application for a permit by existing users when
a groundwater management area is declared or expanded on or after July 1, 1992.
Persons withdrawing groundwater when a groundwater
management area is declared or expanded on or after July 1, 1992, and not
excluded from requirements of this chapter by 9VAC25-610-50 shall apply for a
permit.
1. Any person withdrawing groundwater in an area that is
declared to be a groundwater management area on or after July 1, 1992, shall
file an application for a groundwater permit within six months of the effective
date of the regulation creating or expanding the groundwater management area.
The applicant shall demonstrate the claimed prior withdrawals through
withdrawal reports required by Water Withdrawal Reporting Regulations
(9VAC25-200), or other methods approved by the board if reporting information
pursuant to the Water Withdrawal Reporting Regulations is not available. In the
case of agricultural groundwater withdrawals not required to report by Water
Withdrawal Reporting Regulations, estimates of withdrawal will be accepted that
are based on the area irrigated, depth of irrigation, and annual number of
irrigations; pumping capacity and annual pumping time; annual energy
consumption for pumps, energy consumption per hour, and pumping capacity;
number and type of livestock watered annually; number and type of livestock
where water is used for cooling purposes; or other methods approved by the
board.
2. Any person withdrawing groundwater who uses the
withdrawal to operate a public water supply system shall provide a copy of the
waterworks operation permit, or equivalent, with the required application for a
groundwater withdrawal permit.
3. Any person who is required to apply for a groundwater
withdrawal permit and files a complete application within six months after the
effective date of the regulation creating or expanding a groundwater management
area may continue their existing documented withdrawal until such time as the
board takes action on the outstanding application for a groundwater withdrawal
permit.
4. Any person who is required to apply for a groundwater
withdrawal permit and files an incomplete application within six months after
the effective date of the regulation creating or expanding a groundwater
management area may continue to withdraw groundwater as described in
subdivision 3 of this section provided that all the information required to
complete the application is provided to the board within 60 days of the board's
notice to the applicant of deficiencies. Should such person not provide the
board the required information within 60 days, he shall cease withdrawals until
he provides any additional information to the board and the board concurs that
the application is complete.
5. A complete application for those persons described in
subdivision 1 of this section shall contain:
a. The permit fee as required by the Fees for Permits and
Certificates Regulations (9VAC25-20);
b. A groundwater withdrawal permit application completed in
its entirety with all maps, attachments, and addenda that may be required.
Application forms shall be submitted in a format specified by the board. Such
application forms are available from the Department of Environmental Quality;
c. A signature as described in 9VAC25-610-150;
d. Well construction documentation for all wells associated
with the application submitted on the Water Well Completion Report, Form GW2,
which includes the following information:
(1) The depth of the well;
(2) The diameter, top and bottom, and material of each
cased interval;
(3) The diameter, top and bottom, for each screened
interval; and
(4) The depth of pump intake;
e. Locations of all wells associated with the application
shown on United States Geological Survey 7-1/2 minute topographic maps. The
applicant shall provide the latitude and longitude coordinates in a datum
specified by the department for each existing and proposed well. The detailed
location map shall be of sufficient detail such that all wells may be easily
located for site inspection;
f. A map identifying the service areas for public water
supplies;
g. Information on surface water and groundwater conjunctive
use systems as described in 9VAC25-610-104 if applicable;
h. Withdrawal reports required by Water Withdrawal
Reporting Regulations (9VAC25-200), other documentation demonstrating
historical water use approved by the board to support claimed prior withdrawals
if water Water Withdrawal Reporting information is unavailable or estimates of
withdrawals as described in subdivision 1 of this section to support any
claimed prior withdrawal; and
i. A copy of the Virginia Department of Health waterworks
operation permit where applicable.
6. The board may waive the requirement for information
listed in subdivision 5 of this section to be submitted if it has access to
substantially identical information that remains accurate and relevant to the
permit application.
7. Any person who fails to file an application within six
months after the effective date creating or expanding a groundwater management
area creates the presumption that all claims to groundwater withdrawal based on
historic use have been abandoned. Should any such person wish to rebut the
presumption that claims to groundwater withdrawal based on historic use have
been abandoned, they may do so by filing an application with a letter of
explanation to the board within eight months after the date creating or
expanding the groundwater management area. Any such person failing to rebut the
presumption that claims to groundwater withdrawal based on historic use have
been abandoned who wishes to withdraw groundwater shall apply for a new
withdrawal as described in 9VAC25-610-94.
9VAC25-610-94. Application for a new permit, expansion of an
existing withdrawal, or reapplication for a current permitted withdrawal.
Persons wishing to initiate a new withdrawal, expand an
existing withdrawal, or reapply for a current permitted withdrawal in any
groundwater management area and not excluded from requirements of this chapter
by 9VAC25-610-50 shall apply for a permit.
1. A groundwater withdrawal permit application shall be
completed and submitted to the board and a groundwater withdrawal permit issued
by the board prior to the initiation of any withdrawal not specifically
excluded in 9VAC25-610-50.
2. A complete groundwater withdrawal permit application for
a new or expanded withdrawal, or reapplication for a current withdrawal, shall
contain the following:
a. The permit fee as required by the Fees for Permits and
Certificates Regulations (9VAC25-20);
b. A groundwater withdrawal permit application completed in
its entirety with all maps, attachments, and addenda that may be required.
Application forms shall be submitted in a format specified by the board. Such
application forms are available from the Department of Environmental Quality;
c. A signature as described in 9VAC25-610-150;
d. A completed well construction report for all existing
wells associated with the application submitted on the Water Well Completion
Report, Form GW2;
e. The application shall include locations of all wells
associated with the application shown on United States Geological Survey 7-1/2
minute topographic maps. The applicant shall provide the latitude and longitude
coordinates in a datum specified by the department for each existing and proposed
well. The detailed location map shall be of sufficient detail such that all
wells may be easily located for site inspection;
f. A map identifying the service areas for public water
supplies;
g. Information on surface water and groundwater conjunctive
use systems as described in 9VAC25-610-104 if applicable;
h. A water conservation and management plan as described in
9VAC25-610-100;
i. The application shall include notification from the
local governing body in which the withdrawal is to occur that the location and
operation of the withdrawing facility is in compliance with all ordinances
adopted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2 of the
Code of Virginia. If the governing body fails to respond to the applicant's
request for certification within 45 days of receipt of the written request, the
location and operation of the proposed facility shall be deemed to comply with
the provisions of such ordinances for the purposes of this chapter. The
applicant shall document the local governing body's receipt of the request for
certification through the use of certified mail or other means that establishes
proof of delivery;
j. An alternatives analysis that evaluates sources of water
supply other than groundwater, including sources of reclaimed water, and the
lowest quality of water needed for the intended beneficial use as described in
9VAC25-610-102;
k. Documentation justifying the need for future water
supply as described in 9VAC25-610-102;
l. A plan to mitigate potential adverse impacts from the
proposed withdrawal on existing groundwater users. In lieu of developing
individual mitigation plans, multiple applicants may choose to establish a
mitigation program to collectively develop and implement a cooperative
mitigation plan that covers the entire area of impact of all members of the
mitigation program; and
m. Other relevant information that may be required by the
board to evaluate the application.
3. In addition to requirements contained in subdivision 2
of this section, the board may require any or all of the following information
prior to considering an application complete.
a. The installation of monitoring wells and the collection
and analysis of drill cuttings, continuous cores, geophysical logs, water
quality samples, or other hydrogeologic information necessary to characterize
the aquifer system present at the proposed withdrawal site.
b. The completion of pump tests or aquifer tests to
determine aquifer characteristics at the proposed withdrawal site.
4. The board may waive the requirement for information
listed in subdivision 2 or 3 of this section to be submitted if it has access
to substantially identical information that remains accurate and relevant to
the permit application.
9VAC25-610-96. Duty to reapply for a permit.
A. Any permittee with an effective permit shall submit a
new permit application at least 270 days before the expiration date of an
effective permit unless permission for a later date has been granted by the
board. If a complete application for a new permit has been filed in a timely
manner, and the board is unable, through no fault of the permittee, to issue a
new permit before the expiration date of the previous permit, the permit may be
administratively continued.
B. Permittees who have effective permits shall submit a
new application 270 days prior to any proposed modification to their activity
or withdrawal system that will:
1. Result in an increase of withdrawals above permitted
limits; or
2. Violate or lead to the violation of the terms and
conditions of the permit.
C. The applicant shall provide all information described
in 9VAC25-610-94 for any reapplication. The information may be provided by
referencing information previously submitted to the department that remains
accurate and relevant to the permit application. The board may waive any
requirement of 9VAC25-610-94 if it has access to substantially identical
information.
9VAC25-610-98. Incomplete or inaccurate applications.
A. Where the board finds an application to be incomplete
under the requirements of 9VAC25-610-90, 9VAC25-610-92, or 9VAC25-610-94, the
board shall require the submission of additional information after an
application has been filed, and may suspend processing of the application until
such time as the applicant has supplied the missing or deficient information
and the board finds the application complete. An incomplete permit application
for a new or expanded withdrawal may be suspended from processing 180 days from
the date that the applicant received notification that the application is
deficient. Once an application has been suspended from processing, the
applicant must submit a new complete application; however, no additional permit
fee will be assessed. Further, where the applicant becomes aware that one or
more relevant facts from a permit application were omitted, or that incorrect
information was submitted in a permit application or in any report to the
board, the applicant shall immediately submit such facts or the correct
information.
B. When an application does not accurately describe an
existing or proposed groundwater withdrawal, the board may require the
applicant to revise the existing application or submit a new application before
the application will be processed.
9VAC25-610-100. Water conservation and management plans.
A. Any application to initiate a new withdrawal or expand an
existing withdrawal in any ground water groundwater management
area or the reapplication at the end of a permit cycle for all permits shall
require a water conservation and management plan before the application or
reapplication is considered complete. The board shall review all water
conservation and management plans and assure that such plans contain all
elements required in subsection B of this section. The approved plan shall
become an enforceable part of the approved permit.
B. A water conservation and management plan shall include:
1. Requirements for the use of water saving plumbing and
processes including, where appropriate, the use of water saving fixtures in new
and renovated plumbing as provided in the Uniform Statewide Building Code;
2. A water loss reduction program;
3. A water use education program;
4. An evaluation of potential water reuse options; and
5. Requirements for mandatory water use reductions during
water shortage emergencies declared by the local governing body or director
including, where appropriate, ordinances prohibiting the waste of water
generally and requirements providing for mandatory water use restrictions, with
penalties, during water shortage emergencies.
C. The board shall review all water conservation and
management plans and assure that such plans contain all elements required in
9VAC25-610-100 B. The board shall approve all plans that:
1. Contain requirements that water saving fixtures be used
in all new and renovated plumbing as provided in the Uniform Statewide Building
Code;
2. Contain requirements for making technological,
procedural, or programmatic improvements to the applicant's facilities and
processes to decrease water consumption. These requirements shall assure that
the most efficient use is made of ground water;
3. Contain requirements for an audit of the total amount of
ground water used in the applicant's distribution system and operational
processes during the first two years of the permit cycle. Subsequent
implementation of a leak detection and repair program will be required within
one year of the completion of the audit, when such a program is technologically
feasible;
4. Contain requirements for the education of water users
and employees controlling water consuming processes to assure that water
conservation principles are well known by the users of the resource;
5. Contain an evaluation of potential water reuse options
and assurances that water will be reused in all instances where reuse is
feasible;
6. Contain requirements for mandatory water use
restrictions during water shortage emergencies that prohibit all nonessential
uses such as lawn watering, car washing, and similar nonessential residential,
industrial and commercial uses for the duration of the water shortage
emergency; and
7. Contain penalties for failure to comply with mandatory
water use restrictions.
B. A water conservation and management plan is an
operational plan to be referenced and implemented by the permittee. Water
conservation and management plans shall be consistent with local and regional
water supply plans in the applicant's geographic area developed as required by
9VAC25-780. The water conservation and management plan shall be specific to the
type of water use and include the following:
1. For municipal and nonmunicipal public water supplies:
a. Requirements for the use of water-saving equipment and
processes for all water uses including, technological, procedural, or
programmatic improvements to the facilities and processes to decrease the
amount of water withdrawn or to decrease water demand. These requirements shall
assure that the most practicable use is made of groundwater. If these options
are not implemented in the plan, information on the water-saving alternatives
examined and the water savings associated with the alternatives shall be
provided. Water conservation and management plans shall discuss high volume
water consumption by users on the system and where conservation measures have
previously been implemented and shall be applied. Also, where appropriate, the
use of water-saving fixtures in new and renovated plumbing as provided in the
Uniform Statewide Building Code (13VAC5-63) shall be identified in the plan;
b. A water loss reduction program, which defines the
applicant's leak detection and repair program. The water loss reduction program
shall include requirements for an audit of the total amount of groundwater used
in the distribution system and operational processes during the first two years
of the permit cycle. Implementation of a leak detection and repair program
shall be required within one year of the date the permit is issued. The program
shall include a schedule for inspection of equipment and piping for leaks;
c. A water use education program that contains requirements
for the education of water users and training of employees controlling water
consuming processes to assure that water conservation principles are well known
by the users of the resource. The program shall include a schedule for
information distribution and the type of materials used;
d. An evaluation of water reuse options and assurances that
water shall be reused in all instances where reuse is practicable. Potential
for expansion of the existing reuse practices or adoption of additional reuse
practices shall also be included; and
e. Requirements for mandatory water use reductions during
water shortage emergencies declared by the local governing body or water
authority consistent with §§ 15.2-923 and 15.2-924 of the Code of
Virginia. This shall include, where appropriate, ordinances in municipal
systems prohibiting the waste of water generally and requirements providing for
mandatory water use restrictions in accordance with drought response and
contingency ordinances implemented to comply with 9VAC25-780-120 during water
shortage emergencies. The water conservation and management plan shall also
contain requirements for mandatory water use restrictions during water shortage
emergencies that restricts or prohibits all nonessential uses such as lawn
watering, car washing, and similar nonessential residential, industrial, and
commercial uses for the duration of the water shortage emergency. Penalties for
failure to comply with mandatory water use restrictions shall be included in
municipal system plans.
2. For nonpublic water supply applicants - commercial and
industrial users:
a. Requirements for the use of water-saving equipment and
processes for all water uses including, technological, procedural, or
programmatic improvements to the facilities and processes to decrease the
amount of water withdrawn or to decrease water demand. These requirements shall
assure that the most practicable use is made of groundwater. If these options
are not implemented in the plan, information on the water-saving alternatives
examined and the water savings associated with the alternatives shall be
provided. Also, where appropriate, the use of water-saving fixtures in new and
renovated plumbing as provided in the Uniform Statewide Building Code
(13VAC5-63) shall be identified in the plan;
b. A water loss reduction program, which defines the
applicant's leak detection and repair program. The water loss reduction program
shall include requirements for an audit of the total amount of groundwater used
in the distribution system and operational processes during the first two years
of the permit cycle. Implementation of a leak detection and repair program
shall be required within one year of the date the permit is issued. The program
shall include a schedule for inspection of equipment and piping for leaks;
c. A water use education program that contains requirements
for the education of water users and training of employees controlling water
consuming processes to assure that water conservation principles are well known
by the users of the resource. The program shall include a schedule for
information distribution and the type of materials used;
d. An evaluation of water reuse options and assurances that
water shall be reused in all instances where reuse is practicable. Potential
for expansion of the existing reuse practices or adoption of additional reuse
practices shall also be included; and
e. Requirements for complying with mandatory water use
reductions during water shortage emergencies declared by the local governing
body or water authority in accordance with §§ 15.2-923 and 15.2-924 of the
Code of Virginia. This shall include, where appropriate, ordinances prohibiting
the waste of water generally and requirements providing for mandatory water use
restrictions in accordance with drought response and contingency ordinances
implemented to comply with 9VAC25-780-120 during water shortage emergencies.
The water conservation and management plan shall also contain requirements for
mandatory water use restrictions during water shortage emergencies that restricts
or prohibits all nonessential uses such as lawn watering, car washing, and
similar nonessential industrial and commercial uses for the duration of the
water shortage emergency.
3. For nonpublic water supply applicants - agricultural
users:
a. Requirements for the use of water-saving plumbing and
processes to decrease the amount of water withdrawn or to decrease water
demand. Plans submitted for the use of groundwater for irrigation shall
identify the specific type of irrigation system that will be utilized, the
efficiency rating of the irrigation system in comparison to less efficient
systems, the irrigation schedule used to minimize water demand, and the crop
watering requirements. Multiple types of irrigation methods may be addressed in
the plan. For livestock watering operations, plans shall include livestock
watering requirements (per head) and processes to minimize waste of water.
These requirements shall assure that the most practicable use is made of
groundwater. If these options are not implemented in the plan, information on
the water-saving alternatives examined and the water savings associated with
the alternatives shall be provided;
b. A water loss reduction program, which defines the
applicant's leak detection and repair program. The water loss reduction program
shall include requirements for an audit of the total amount of groundwater used
in the distribution system and operational processes during the first two years
of the permit cycle. Implementation of a leak detection and repair program shall
be required within one year of the date the permit is issued. The program shall
include a schedule for inspection of equipment and piping for leaks;
c. A water use education program that contains requirements
for the training of employees controlling water consuming processes to assure
that water conservation principles are well known by the users of the resource.
The program shall include a schedule for training employees. This requirement
may be met through training employees on water use requirements contained in
irrigation management plans or livestock management plans;
d. An evaluation of potential water reuse options and
assurances that water shall be reused in all instances where reuse is
practicable and not prohibited by other regulatory programs; Potential for
expansion of the existing reuse practices or adoption of additional reuse
practices shall also be included; and
e. Requirements for mandatory water use reductions during
water shortage emergencies and compliance with ordinances prohibiting the waste
of water generally. This shall include requirements providing for mandatory
water use restrictions in accordance with drought response and contingency
ordinances implemented to comply with 9VAC25-780-120 during water shortage
emergencies.
f. The permittee may submit portions of Agricultural
Management Plans or Irrigation Management Plans developed to comply with
requirements of federal or state laws, regulations, or guidelines to
demonstrate the requirements of subdivisions B 3 a through d of this section
are being achieved.
9VAC25-610-102. Evaluation of need for withdrawal and
alternatives.
A. The applicant shall identify the purpose of the
proposed withdrawal by providing a narrative description of the water supply
issues that form the basis of the proposed withdrawal.
B. The applicant shall subsequently demonstrate to the
satisfaction of the board that the withdrawal meets an established water supply
need.
1. In establishing local need for a public water supply,
the applicant shall provide the following information:
a. Existing supply sources, yields and demands, including:
(1) Peak day and average daily withdrawal;
(2) Total consumptive use component of the withdrawal,
including identification of the amount needed for human consumption;
(3) Types of water uses; and
(4) Existing water conservation measures and drought
response plan, including what conditions trigger their implementation.
b. Projected demands in 10 year increments over a minimum
30-year planning period that includes the following:
(1) Projected demand contained in the local or regional
water supply plan developed in accordance with 9VAC25-780 or for the project
service area if such area is smaller than the planning area; or
(2) Statistical population (growth) trends, projected demands
by use type including projected demand with and without water conservation
measures.
2. In establishing need for agricultural water supply, the
applicant shall provide the following information:
a. For crop irrigation: crop, acreage, crop spacing, crop
watering requirements for the particular crop (crop rooting depth), soil types,
soil holding capacity (available water capacity), allowable soil water
depletion, historic precipitation records (precipitation contribution), peak
irrigation months, irrigation scheduling approaches (tensiometers vs. feel
method), irrigation type (drip, overhead, center pivot etc.), and irrigation
system efficiency rating.
b. For livestock watering: kind and size of animal, rate
and composition of gain, presence of pregnant animals or lactating animals,
type of diet, level of dry matter intake, level of activity, quality of the
water, temperature of the water offered, and surrounding air temperature.
3. In establishing need for commercial water supply, the
applicant shall provide the following information:
a. Number of employees by month for an average year;
b. Average gallons per day used per month;
c. Average daily water use rate per employee per month; and
d. Identification of peak month of water demand.
4. In establishing need for industrial water supply, the
applicant shall provide the following information:
a. SIC or NAICS industry code;
b. Number of employees by month for an average year;
c. Average gallons per day used per month;
d. Average daily water use rate per employee per month;
e. Identification of peak month of water demand;
f. Amount of withdrawal per unit of output or similar
metric identified by the user; and
g. Monthly amount of water used for industrial processes.
C. The applicant shall provide an alternatives analysis
that evaluates sources of water supply other than groundwater and the
availability and use of lower qualities of groundwater that can still be put to
beneficial use. For all proposed withdrawals, the applicant shall demonstrate to
the satisfaction of the board:
1. Opportunities to reduce and minimize the use of
groundwater have been identified and the requested amount is the minimum amount
of groundwater necessary for the proposed activity;
2. The project utilizes the lowest quality water for the
proposed activity;
3. Alternate sources of supply other than groundwater,
including surface water and water reuse, were considered for use in the
proposed activity particularly for consumptive use purposes; and
4. Practicable alternatives, including design alternatives,
have been evaluated for the proposed activity. Measures that would avoid or
result in less adverse impact to high quality groundwater shall be considered
to the maximum extent practicable.
D. Any alternatives analysis conducted specifically for
public water supply projects shall include:
1. All applicable alternatives contained in the local or
regional water supply plan developed in accordance with 9VAC25-780;
2. Alternatives that are practicable that had not been
identified in the local or regional water supply plan developed in accordance
with 9VAC25-780;
3. Water conservation measures that could be considered as
a means to reduce demand for each alternative considered by the applicant; and
4. A narrative description that outlines the opportunities
and status of regionalization efforts undertaken by the applicant, including
the interconnectivity of water systems and the ability for applicants to
purchase water from other water supplies.
E. The alternatives analysis shall discuss the criteria
used to evaluate each alternative including, but not limited to:
1. Demonstration that the proposed alternative meets the
project purpose and project demonstrated need;
2. Availability of the alternative to the applicant;
3. Evaluation of interconnectivity of water supply systems
and the ability to purchase water from other supplies when applicable (both
existing and proposed); and
4. Evaluation of the cost of the alternative on an
equivalent basis.
9VAC25-610-104. Surface water and groundwater conjunctive
use systems.
A. Surface water and groundwater conjunctive use systems
for public water supplies.
1. Applicants proposing to withdraw groundwater as part of
a surface water and groundwater conjunctive use system for public water
supplies shall provide the following information to the board in addition to
information required by 9VAC25-610-90, 9VAC25-610-92, or 9VAC25-610-94 as part
of their permit application:
a. A detailed description of the surface water and
groundwater conjunctive use system, including:
(1) Identification of all surface water sources, including
pond and reservoir volumes where applicable;
(2) Identification of the wells used on a continual basis
to supplement surface water supply needs and wells to be utilized in periods of
reduced surface water availability. Well construction information for all wells
shall be submitted on the Water Well Completion Report, Form GW2, which
includes the following information:
(a) The depth of the well;
(b) The diameter, top and bottom, and material of each
cased interval;
(c) The diameter, top and bottom, for each screened
interval; and
(d) The depth of pump intake.
(3) A description of the storage system, excluding surface
water sources described in subdivision 1 a (1) of this subsection;
(4) A copy of the Engineering Description Sheet developed
by the Virginia Department of Health for the withdrawal; and
(5) A line drawing of the water supply system illustrating
the water balance of the system.
b. Records documenting the amount of water withdrawn on a
daily basis for each water source during average weather conditions and during
drought conditions;
c. Documentation of the seasonal supply of surface water
during both average and drought conditions;
d. Documentation of any seasonal changes in demand that
occur during an annual cycle of the specified beneficial use or uses; and
e. Other relevant information that may be required by the
board to evaluate the application.
2. The applicant shall demonstrate that the groundwater
withdrawal will originate from the aquifer that contains the lowest quality
water that will support the proposed beneficial use or uses.
3. The board shall evaluate the proposed groundwater
withdrawal for consistency with criteria specified in 9VAC25-610-110.
4. In addition to conditions established in 9VAC25-610-100,
9VAC25-610-110, 9VAC25-610-120, 9VAC25-610-130, and 9VAC25-610-140, the permit
shall specify the maximum amount of groundwater that may be withdrawn during
the term of the permit and shall address variations in the groundwater
withdrawal amounts that may occur.
5. The board may issue any permit with terms, conditions,
or limitations necessary to protect the public welfare, safety, and health, or
to protect the resource.
6. Applicants may request approval to withdraw groundwater
amounts that exceed the withdrawal limits established in subdivision 4 of this
section from wells that are part of a conjunctive use system to meet human
consumption needs during periods of drought by applying for a supplemental drought
relief permit as described in 9VAC25-610-106.
B. Surface water and groundwater conjunctive use systems
for uses other than public water supplies.
1. Applicants proposing to withdraw groundwater as part of
a surface water and groundwater conjunctive use system for uses other than
public water supplies shall provide the following information to the board in
addition to information required by 9VAC25-610-90, 9VAC25-610-92, or
9VAC25-610-94 as part of their permit application:
a. A detailed description of the surface water and
groundwater conjunctive use system, including:
(1) Identification of all surface water sources, including
pond and reservoir volumes where applicable;
(2) Identification of the wells used on a continual basis
to supplement surface water supply needs and wells to be utilized in periods of
reduced surface water availability. Well construction information for all wells
shall be submitted on the Water Well Completion Report, Form GW2, which
includes the following information:
(a) The depth of the well;
(b) The diameter, top and bottom, and material of each
cased interval;
(c) The diameter, top and bottom, for each screened
interval; and
(d) The depth of pump intake.
(3) A description of the storage system, excluding surface
water sources described in subdivision 1 a (1) of this subsection; and
(4) A map delineating the area in which the water will be
beneficially used.
b. Records documenting the amount of water withdrawn on a
monthly basis and annual basis for each water source during average weather
conditions and during drought conditions;
c. Documentation of the seasonal supply of surface water
during both average and drought conditions;
d. Documentation of any seasonal changes in demand that
occur during an annual cycle of the specified beneficial use or uses;
e. Other relevant information that may be required by the
board to evaluate the application.
2. The applicant shall demonstrate that the groundwater
withdrawal will originate from the aquifer that contains the lowest quality water
that will support the proposed beneficial use or uses.
3. The board shall evaluate the proposed groundwater
withdrawal for consistency with criteria specified in 9VAC25-610-110.
4. In addition to conditions established in 9VAC25-610-100,
9VAC25-610-110, 9VAC25-610-130, and 9VAC25-610-140, the permit shall specify
the maximum amount of groundwater that may be withdrawn during the term of the
permit and shall address variations in the groundwater withdrawal amounts that
may occur.
5. The board may issue any permit with terms, conditions,
or limitations necessary to protect the public welfare, safety, and health, or
to protect the resource.
9VAC25-610-106. Supplemental drought relief wells.
A. Public water supplies wishing to withdraw groundwater
for human consumption during periods of drought through the use of supplemental
drought relief wells in any groundwater management area and not excluded from
requirements of this chapter by 9VAC25-610-50 shall apply for a permit.
B. A groundwater withdrawal permit application shall be
completed and submitted to the board and a groundwater withdrawal permit issued
by the board prior to the initiation of any withdrawal not specifically
excluded in 9VAC25-610-50.
C. A complete groundwater withdrawal permit application for
supplemental drought relief wells shall contain the following:
1. The permit fee as required by the Fees for Permits and
Certificates Regulations (9VAC25-20);
2. A groundwater withdrawal permit application completed in
its entirety with all maps, attachments, and addenda that may be required.
Application forms shall be submitted in a format specified by the board. Such
application forms are available from the Department of Environmental Quality;
3. A signature as described in 9VAC25-610-150;
4. Well construction documentation for all wells associated
with the application submitted on the Water Well Completion Report, Form GW2,
which includes the following information:
(1) The depth of the well;
(2) The diameter, top and bottom, and material of each cased
interval;
(3) The diameter, top and bottom, for each screened
interval; and
(4) The depth of pump intake.
5. The application shall include locations of all wells
associated with the application shown on United States Geological Survey 7-1/2
minute topographic maps. The applicant shall provide the latitude and longitude
coordinates in a datum specified by the department for each existing and
proposed well. The detailed location map shall be of sufficient detail such
that all wells may be easily located for site inspection;
6. A map identifying the service areas for public water
supplies;
7. Information on surface water and groundwater conjunctive
use systems as described in 9VAC25-610-104 if applicable;
8. A water conservation and management plan as described in
9VAC25-610-100;
9. The application shall include notification from the
local governing body in which the withdrawal is to occur that the location and
operation of the withdrawing facility is in compliance with all ordinances
adopted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2 of the
Code of Virginia. If the governing body fails to respond to the applicant's
request for certification within 45 days of receipt of the written request, the
location and operation of the proposed facility shall be deemed to comply with
the provisions of such ordinances for the purposes of this chapter. The
applicant shall document the local governing body's receipt of the request for
certification through the use of certified mail or other means that establishes
proof of delivery;
10. A plan to mitigate potential adverse impacts from the
proposed withdrawal on existing groundwater users. In lieu of developing
individual mitigation plans, multiple applicants may choose to establish a
mitigation program to collectively develop and implement a cooperative
mitigation plan that covers the entire area of impact of all members of the
mitigation program;
11. Documentation on the maximum amount of groundwater
needed annually to meet human consumption needs; and
12. Other relevant information that may be required by the
board to evaluate the application.
D. Permits issued by the board for groundwater withdrawals
from supplemental drought relief wells shall include the following permit
conditions:
1. Permits shall include a maximum amount of groundwater
allowed to be withdrawn over the term of the permit.
2. The permit shall specify an annual limit on the amount
of groundwater to be withdrawn based on the amount of groundwater needed
annually to meet human consumption needs. Groundwater withdrawals from
supplemental drought relief wells shall be subject to monthly groundwater
withdrawal limits.
3. Permits shall specify that groundwater withdrawn from
supplemental drought relief wells shall be used to meet human consumption
needs.
4. Permits shall specify that groundwater shall only be
withdrawn from supplemental drought relief wells after mandatory water
restrictions have been implemented pursuant to approved water conservation and
management plans as required by § 62.1-265 of the Code of Virginia.
5. A permit shall contain the total depth of each permitted
well in feet.
6. A permit shall specify the screened intervals of wells
authorized for use by the permit;
7. A permit shall contain the designation of the aquifers
to be utilized.
8. A permit may contain conditions limiting the withdrawal
amount of a single well or a group of wells within a withdrawal system to a
quantity specified by the board.
9. A groundwater withdrawal permit for a public water
supply shall contain a condition allowing daily withdrawals at a level
consistent with the requirements and conditions contained in the waterworks
operation permit, or equivalent, issued by the Virginia Department of Health.
This requirement shall not limit the authority of the board to reduce or
eliminate groundwater withdrawals by public water suppliers if necessary to
protect human health or the environment.
10. The permit shall state that no pumps or water intake
devices are to be placed lower than the top of the uppermost confined aquifer
that a well utilizes as a groundwater source or lower than the bottom of an
unconfined aquifer that a well utilizes as a groundwater source in order to
prevent dewatering of a confined aquifer, loss of inelastic storage, or damage
to the aquifer from compaction.
11. All permits shall specify monitoring requirements as
conditions of the permit.
a. Permitted users shall install in-line totalizing flow
meters to read gallons, cubic feet, or cubic meters on each permitted well
prior to beginning the permitted use. Such meters shall produce volume
determinations within plus or minus 10% of actual flows. A defective meter or
other device must be repaired or replaced within 30 days. A defective meter is
not grounds for not reporting withdrawals. During any period when a meter is
defective, generally accepted engineering methods shall be used to estimate
withdrawals and the period during which the meter was defective must be clearly
identified in groundwater withdrawal reports. An alternative method for
determining flow may be approved by the board on a case-by-case basis.
b. Permits shall contain requirements concerning the proper
use, maintenance, and installation, when appropriate, of monitoring equipment
or methods when required as a condition of the permit.
c. Permits shall contain required monitoring including
type, intervals, and frequency sufficient to yield data that are representative
of the monitored activity and including, when appropriate, continuous
monitoring and sampling.
d. Each permitted well shall be equipped in a manner such
that water levels can be measured during pumping and nonpumping periods without
dismantling any equipment. Any opening for tape measurement of water levels
shall have an inside diameter of at least 0.5 inches and be sealed by a
removable plug or cap. The permittee shall provide a tap for taking raw water
samples from each permitted well.
12. All permits shall prohibit withdrawals from wells not
authorized in the permit.
13. All permits shall include requirements to report the
amount of water withdrawn from each permitted well or well system on forms
provided by the board with a frequency dependent on the nature and effect of
the withdrawal, but in no case less than once per year.
14. Groundwater withdrawal permits issued under this
chapter shall have an effective and expiration date that will determine the
life of the permit. Groundwater withdrawal permits shall be effective for a
fixed term not to exceed 10 years. Permit duration of less than the maximum
period of time may be recommended in areas where hydrologic conditions are
changing or are not adequately known. The term of any permit shall not be
extended by modification beyond the maximum duration. Extension of permits for
the same activity beyond the maximum duration specified in the original permit
will require reapplication and issuance of a new permit.
15. Each permit shall have a condition allowing the
reopening of the permit for the purpose of modifying the conditions of the
permit to meet new regulatory standards duly adopted by the board.
16. Each well that is included in a groundwater withdrawal
permit shall have affixed to the well casing, in a prominent place, a permanent
well identification plate that records the Department of Environmental Quality
well identification number, the groundwater withdrawal permit number, the total
depth of the well, and the screened intervals in the well, at a minimum. Such
well identification plates shall be in a format specified by the board and are
available from the Department of Environmental Quality.
E. The permit shall address variations in the groundwater
withdrawal amounts that may occur.
F. In addition to the permit conditions listed in
subsection D of this section, the board may issue any permit with terms,
conditions, or limitations necessary to protect the public welfare, safety, and
health, or to protect the resource.
G. The board shall evaluate the application for
supplemental drought relief wells based on the following criteria:
1. The applicant demonstrates that no pumps or water intake
devices are placed lower than the top of the uppermost confined aquifer that a
well utilizes as a groundwater source or lower than the bottom of an unconfined
aquifer that a well utilizes as a groundwater source in order to prevent
dewatering of a confined aquifer, loss of inelastic storage, or damage to the
aquifer from compaction.
2. The applicant demonstrates that the amount of
groundwater withdrawal requested is the smallest amount of withdrawal necessary
to support human consumption when mandatory water use restrictions have been
implemented.
3. The applicant provides a water conservation and
management plan as described in 9VAC25-610-100 and implements the plan as an
enforceable condition of the groundwater withdrawal permit.
4. The applicant provides certification by the local
governing body that the location and operation of the withdrawing facility is
in compliance with all ordinances adopted pursuant to Chapter 22 (§ 15.2-2200
et seq.) of Title 15.2 of the Code of Virginia.
5. The board's technical evaluation demonstrates that the
area of impact of the proposed withdrawal will remain on property owned by the
applicant or that there are no existing groundwater withdrawers within the area
of impact of the proposed withdrawal.
In cases where the area of impact does not remain on the
property owned by the applicant or existing groundwater withdrawers will be
included in the area of impact, the applicant shall provide and implement a
plan to mitigate all adverse impacts on existing groundwater users. Approvable
mitigation plans shall, at a minimum, contain the following features and
implementation of the mitigation plan shall be included as enforceable permit
conditions:
a. The rebuttable presumption that water level declines
that cause adverse impacts to existing wells within the area of impact are due
to the proposed withdrawal;
b. A commitment by the applicant to mitigate undisputed
adverse impacts due to the proposed withdrawal in a timely fashion;
c. A speedy, nonexclusive, low-cost process to fairly
resolve disputed claims for mitigation between the applicant and any claimant;
and
d. The requirement that the claimant provide documentation
that he is the owner of the well; documentation that the well was constructed
and operated prior to the initiation of the applicant's withdrawal; the depth
of the well, the pump, and screens, and any other construction information that
the claimant possesses; the location of the well with enough specificity that
it can be located in the field; the historic yield of the well, if available;
historic water levels for the well, if available; and the reasons the claimant
believes that the applicant's withdrawals have caused an adverse impact on the
well.
6. The board conducts a technical evaluation of the
stabilized effects of the proposed withdrawal with the stabilized cumulative
effects of all existing lawful withdrawals to identify if the withdrawal will
lower water levels in any confined aquifer below a point that represents 80% of
the distance between the historical prepumping water levels in the aquifer and
the top of the aquifer.
7. The board's technical evaluation demonstrates that the
proposed groundwater withdrawal will not result in salt water intrusion or the
movement of waters of lower quality to areas where such movement would result
in adverse impacts on existing groundwater users or the groundwater resource.
This provision shall not exclude the withdrawal of brackish water provided that
the proposed withdrawal will not result in unmitigated adverse impacts.
9VAC25-610-108. Estimating area of impact for qualifying groundwater
withdrawals.
A. For groundwater withdrawals where available information
indicates the area of impact for the withdrawal will be less than 12 square
miles, the director may estimate, through the use of modeling techniques, the
area of impact of a withdrawal for use by the applicant in developing a
mitigation plan.
B. The applicant may choose to use the area of impact
estimated by the department or the applicant may conduct a geophysical
investigation to gather site-specific information to be used as the basis for
identifying the area of impact of the withdrawal.
C. The area of impact, whether estimated or identified
through an evaluation of a geophysical evaluation, shall be included in the
permit's mitigation plan if a plan is required by 9VAC25-610-110 D 3 g.
D. Mitigation plans for all surface water and groundwater
conjunctive use system permits and supplemental drought relief permits shall
address the area of impact associated with the maximum groundwater withdrawal
allowed by such permits.
9VAC25-610-110. Criteria for issuance of permits Evaluation
criteria for permit applications.
A. The board shall not issue any permit for more ground
water groundwater than will be applied to the proposed beneficial
use.
B. The board shall issue ground water groundwater
withdrawal permits to persons withdrawing ground water groundwater
or who have rights to withdraw ground water groundwater prior to
July 1, 1992, in the Eastern Virginia or Eastern Shore Ground Water Groundwater
Management Areas and not excluded from requirements of this chapter by
9VAC25-610-50 based on the following criteria:
1. The board shall issue a ground water groundwater
withdrawal permit for persons meeting the criteria of subdivision 1 of
9VAC25-610-90 A 1 for the total amount of ground water groundwater
withdrawn in any consecutive 12-month period between July 1, 1987, and June 30,
1992; however, with respect to a political subdivision, an authority serving a
political subdivision or a community waterworks regulated by the Department of
Health, the board shall issue a ground water groundwater
withdrawal permit for the total amount of water withdrawn in any consecutive
12-month period between July 1, 1980, and June 30, 1992.
2. The board shall issue a ground water groundwater
withdrawal permit for persons meeting the criteria of subdivision 2 of
9VAC25-610-90 A 2, for the total amount of ground water groundwater
withdrawn and applied to a beneficial use in any consecutive 12-month period
between July 1, 1992, and June 30, 1995.
3. The board shall issue a ground water groundwater
withdrawal permit for persons meeting the criteria of subdivision 4 of
9VAC25-610-90 A 4 for the total amount of ground water groundwater
withdrawn in any consecutive 12-month period between July 1, 1983, and June 30,
1993. The board shall evaluate all estimates of ground water groundwater
withdrawal based on projected water demands for crops and livestock as
published by the Virginia Cooperative Extension Service, the United States
Natural Resources Conservation Service, or other similar references and make a
determination whether they are reasonable. In all cases only reasonable
estimates will be used to document a permit limit.
4. The board shall issue a ground water groundwater
withdrawal permit for persons meeting the criteria of subdivision 5 of
9VAC25-610-90 A 5 for the amount of ground water groundwater
withdrawal needed to annually meet human consumption needs as proven in the
water conservation and management plan approved by the board. The board shall
include conditions in such permits that require the implementation of mandatory
use restrictions before such withdrawals can be exercised.
5. When requested by persons described in subdivisions 1,
2, and 4 of 9VAC25-610-90 A 1, 2 and 4, the board shall may
issue ground water groundwater withdrawal permits that include
withdrawal amounts in excess of those which an applicant can support based on
historic usage. These additional amounts shall be based on documentation of
water savings achieved through water conservation measures. The applicant shall
demonstrate withdrawals prior to implementation of water conservation measures,
type of water conservation measure implemented, and withdrawals after
implementation of water conservation measures. The applicant shall provide
evidence of withdrawal amounts through metered withdrawals and estimated
amounts shall not be accepted to claim additional withdrawal amounts due to
water conservation. Decreases in withdrawal amounts due to production declines,
climatic conditions, population declines, or similar events shall not be used
as a basis to claim additional withdrawal amounts based on water conservation.
C. The board shall issue ground water groundwater
withdrawal permits to persons withdrawing ground water groundwater
when a ground water groundwater management area is declared or
expanded after July 1, 1992, and not excluded from requirements of this chapter
by 9VAC25-610-50 based on the following criteria:
1. The board shall issue a ground water groundwater
withdrawal permit to nonagricultural users for the total amount of ground
water groundwater withdrawn in any consecutive 12-month period
during the five years preceding the effective date of the regulation creating
or expanding the ground water groundwater management area.
2. The board shall issue a ground water groundwater
withdrawal permit to agricultural users for the total amount of ground water
groundwater withdrawn in any consecutive 12-month period during the 10
years preceding the effective date of the regulation creating or expanding the ground
water groundwater management area. The board shall evaluate all
estimates of ground water groundwater withdrawal based on
projected water demands for crops and livestock as published by the Virginia
Cooperative Extension Service, the United States Natural Resources Conservation
Service, or other similar references and make a determination whether they are
reasonable. In all cases only reasonable estimates will be used to document a
permit limit.
3. When requested by the applicant the board shall may
issue ground water groundwater withdrawal permits that include
withdrawal amounts in excess of those which an applicant can support based on
historic usage. These additional amounts shall be based on documentation of
water savings achieved through water conservation measures. The applicant shall
demonstrate withdrawals prior to implementation of water conservation measures,
type of water conservation measure implemented, and withdrawals after
implementation of water conservation measures. The applicant shall provide
evidence of withdrawal amounts through metered withdrawals and estimated
amounts shall not be accepted to claim additional withdrawal amounts due to
water conservation. Decreases in withdrawal amounts due to production declines,
climatic conditions, population declines, or similar events shall not be used
as a basis to claim additional withdrawal amounts based on water conservation.
D. The board shall issue ground water groundwater
withdrawal permits to persons wishing to initiate a new withdrawal or,
expand an existing withdrawal, or reapply for a current withdrawal in
any ground water groundwater management area who have submitted
complete applications and are not excluded from requirements of this chapter by
9VAC25-610-50 based on the following criteria:
1. The applicant shall provide all information required in 9VAC25-610-90
C 2 subdivision 2 of 9VAC25-610-94 prior to the board's
determination that an application is complete. The board may require the
applicant to provide any information contained in 9VAC25-610-90 C 3 subdivision
3 of 9VAC25-610-94 prior to considering an application complete based on
the anticipated impact of the proposed withdrawal on existing ground water
groundwater users or the ground water groundwater
resource.
2. The board shall perform a technical evaluation to determine
the areas of any aquifers that will experience at least one foot of water level
declines due to the proposed withdrawal and may evaluate the potential for the
proposed withdrawal to cause salt water intrusion into any portions of any
aquifers or the movement of waters of lower quality to areas where such movement
would result in adverse impacts on existing ground water groundwater
users or the ground water groundwater resource. Prior to public
notice of a draft permit developed in accordance with the findings of the
technical evaluation and at the request of the applicant, the results of the
technical evaluation, including all assumptions and input, will be provided to
the applicant for review.
3. The board shall issue a ground water groundwater
withdrawal permit when it is demonstrated, by a complete application and the
board's technical evaluation, to the board's satisfaction that the maximum safe
supply of ground water groundwater will be preserved and
protected for all other beneficial uses and that the applicant's proposed
withdrawal will have no significant unmitigated impact on existing ground
water groundwater users or the ground-water groundwater
resource. In order to assure that the applicant's proposed withdrawal complies
with the above stated requirements, the demonstration shall include, but not be
limited to, compliance with the following criteria:
a. The applicant demonstrates that no other sources of water
supply, including reclaimed water, are viable.
b. The applicant demonstrates that the ground water groundwater
withdrawal will originate from the aquifer that contains the lowest quality
water that will support the proposed beneficial use.
c. The applicant demonstrates that no pumps or water intake
devices are placed below lower than the top of the uppermost
confined aquifer that a well utilizes as a ground water groundwater
source or below lower than the bottom of an unconfined aquifer
that a well utilizes as a ground water groundwater source in
order to prevent dewatering of a confined aquifer, loss of inelastic storage,
or damage to the aquifer from compaction.
d. The applicant demonstrates that the amount of ground
water groundwater withdrawal requested is the smallest amount of
withdrawal necessary to support the proposed beneficial use and that the amount
is representative of the amount necessary to support similar beneficial uses
when adequate conservation measures are employed.
e. The applicant provides a water conservation and management
plan as described in 9VAC25-610-100 and implements the plan as an enforceable
condition of the ground water groundwater withdrawal permit.
f. The applicant provides certification by the local governing
body that the location and operation of the withdrawing facility is in
compliance with all ordinances adopted pursuant to Chapter 22 (§ 15.2-2200 et
seq.) of Title 15.2 of the Code of Virginia.
g. The board's technical evaluation demonstrates that the area
of impact of the proposed withdrawal will remain on property owned by the
applicant or that there are no existing ground water groundwater
withdrawers within the area of impact of the proposed withdrawal.
In cases where the area of impact does not remain on the
property owned by the applicant or existing ground water groundwater
withdrawers will be included in the area of impact, the applicant shall provide
and implement a plan to mitigate all adverse impacts on existing ground
water groundwater users. Approvable mitigation plans shall, at a
minimum, contain the following features and implementation of the mitigation
plan shall be included as enforceable permit conditions:
(1) The rebuttable presumption that water level declines that
cause adverse impacts to existing wells within the area of impact are due to
the proposed withdrawal;
(2) A commitment by the applicant to mitigate undisputed
adverse impacts due to the proposed withdrawal in a timely fashion;
(3) A speedy, nonexclusive, low-cost process to fairly resolve
disputed claims for mitigation between the applicant and any claimant; and
(4) The requirement that the claimant provide documentation
that he is the owner of the well; documentation that the well was constructed
and operated prior to the initiation of the applicant's withdrawal; the depth
of the well, the pump, and screens and any other construction information that
the claimant possesses; the location of the well with enough specificity that
it can be located in the field; the historic yield of the well, if available;
historic water levels for the well, if available; and the reasons the claimant
believes that the applicant's withdrawals have caused an adverse impact on the
well.
h. The board's technical evaluation demonstrates that the stabilized
effects from the proposed withdrawal in combination with the stabilized
combined effects of all existing lawful withdrawals will not lower water
levels, in any confined aquifer that the withdrawal impacts, below a point that
represents 80% of the distance between the historical prepumping water levels
in the aquifer and the top of the aquifer. Compliance with the 80% drawdown
criterion will be determined at the points that are halfway between the
proposed withdrawal site and the predicted one-foot drawdown contour based on
the predicted stabilized effects of the proposed withdrawal.
i. The board's technical evaluation demonstrates that the
proposed ground water groundwater withdrawal will not result in
salt water intrusion or the movement of waters of lower quality to areas where
such movement would result in adverse impacts on existing ground water groundwater
users or the ground water groundwater resource. This provision
shall not exclude the withdrawal of brackish water so long as provided
that the proposed withdrawal will not result in unmitigated adverse
impacts.
4. The board may also take the following factors into
consideration when evaluating a ground water groundwater
withdrawal permit application or special conditions associated with a ground
water groundwater withdrawal permit:
a. The nature of the use of the proposed withdrawal;
b. The proposed use of innovative approaches such as aquifer
storage and recovery systems, surface water and ground water groundwater
conjunctive use systems, multiple well systems that blend withdrawals from
aquifers that contain different quality ground water groundwater
in order to produce potable water, and desalinization of brackish ground
water groundwater;
c. Climatic cycles;
d. Economic cycles;
e. The unique requirements of nuclear power stations;
f. Population and water demand projections during the term of
the proposed permit;
g. The status of land use and other necessary approvals; and
h. Other factors that the board deems appropriate.
E. When proposed uses of ground water groundwater
are in conflict or available supplies of ground water groundwater
are not sufficient to support all those who desire to use them, the board shall
prioritize the evaluation of applications in the following manner:
1. Applications for human consumptive use consumption
shall be given the highest priority;
2. Should there be conflicts between applications for human consumptive
uses consumption, applications will be evaluated in order based on
the date that said applications were considered complete; and
3. Applications for all uses, other than human consumption,
will be evaluated following the evaluation of proposed human consumptive
uses consumption in order based on the date that said applications
were considered complete.
F. Criteria for reissuance review of permits
reapplications for groundwater withdrawal permit.
1. The board shall consider all criteria for
reissuance of a ground water withdrawal permit described in subsection D of
this section prior to reissuing a groundwater withdrawal permit.
Existing permitted withdrawal amounts shall not be the sole basis for
determination of the appropriate withdrawal amounts when a permit is reissued.
2. The board shall reissue a permit to any public water
supply user for an annual amount no less than the amount equal to that portion
of the permitted withdrawal that was used by said system to support human consumptive
uses consumption during 12 consecutive months of the previous term
of the permit.
9VAC25-610-120. Public water supplies.
The board shall evaluate all applications for ground water
groundwater withdrawals for public water supplies as described in
9VAC25-610-110. The board shall make a preliminary decision on the application
and prepare a draft ground water groundwater withdrawal permit
and forward the draft permit to the Virginia Department of Health. The board
shall not issue a final ground water groundwater withdrawal permit
until such time as the Virginia Department of Health issues a waterworks
operation permit, or equivalent. The board shall establish withdrawal limits
for such permits as described in 9VAC25-610-140 A 3 and 4 and 5.
Under the Virginia Department of Health's Waterworks Regulation any proposed
use of reclaimed, reused, or recycled water contained in a ground water groundwater
withdrawal application to support a public water supply is required to be
approved by the Virginia Department of Health.
9VAC25-610-130. Conditions applicable to all groundwater
permits.
A. Duty to comply. The permittee shall comply with all
conditions of the permit. Nothing in this chapter shall be construed to relieve
the ground water groundwater withdrawal permit holder of the duty
to comply with all applicable federal and state statutes and regulations
prohibitions. At a minimum, a person must obtain a well construction
permit or a well site approval letter from the Virginia Department of Health
prior to the construction of any well for any withdrawal authorized by DEQ.
Any permit noncompliance is a violation of the Act and is a
violation of the law, and is grounds for enforcement action, permit
termination, revocation, amendment, modification, or denial of a
permit renewal application.
B. Duty to cease or confine activity. It shall not be a
defense for a permittee in an enforcement action that it would have been
necessary to halt or reduce the activity for which a permit has been granted in
order to maintain compliance with the conditions of the permit.
C. Duty to mitigate. The permittee shall take all reasonable
steps to:
1. Avoid all adverse impacts to lawful ground water groundwater
users which could result from the withdrawal; and
2. Where impacts cannot be avoided, provide mitigation of the
adverse impact as described in 9VAC25-610-110 D 3 g.
D. Inspection and entry. Upon presentation of credentials, the
permittee shall allow the board or any duly authorized agent of the board or
department may, at reasonable times and under reasonable circumstances:,
to conduct actions listed in this section. For the purpose of this section, the
time for inspection shall be deemed reasonable during regular business hours.
Nothing contained herein shall make an inspection time unreasonable during an
emergency.
1. Enter Entry upon any permittee's property,
public or private, and have access to, inspect and copy any records that must
be kept as part of the permit conditions;
2. Inspect any facilities, operations or practices (including
monitoring and control equipment) regulated or required under the permit; and
3. Sample or monitor any substance, parameter or activity for
the purpose of assuring compliance with the conditions of the permit or as
otherwise authorized by law.
E. Duty to provide information. The permittee shall furnish
to the board, within a reasonable time, any information which that
the board may request to determine whether cause exists for amending modifying
or revoking, reissuing, or terminating the permit, or to determine
compliance with the permit. The permittee shall also furnish to the board, upon
request, copies of records required to be kept by the permittee.
F. Monitoring and records requirements.
1. Monitoring of parameters, other than pollutants,
shall be conducted according to approved analytical methods as specified in the
permit. Analysis of pollutants will be conducted according to 40 CFR Part
136 (2000), Guidelines Establishing Test Procedures for the Analysis of
Pollutants.
2. Samples and measurements taken for the purpose of
monitoring shall be representative of the monitored activity.
3. The permittee shall retain records of all monitoring
information, including all calibration and maintenance records and all original
strip chart or electronic recordings for continuous monitoring instrumentation,
copies of all reports required by the permit, and records of all data used to
complete the application for the permit, for a period of at least three years
from the date of the expiration of a granted permit. This period may be
extended by request of the board at any time.
4. Records of monitoring information shall include as
appropriate:
a. The date, exact place and time of sampling or measurements;
b. The name of the individuals who performed the sampling or
measurements;
c. The date the analyses were performed;
d. The name of the individuals who performed the analyses;
e. The analytical techniques or methods supporting the
information such as observations, readings, calculations and bench data used; and
f. The results of such analyses; and
g. Chain of custody documentation.
G. Permit action.
1. A permit may be amended modified or
revoked as set forth in Part VI (9VAC25-610-170 et seq.) of this chapter.
2. If a permittee files a request for permit amendment
modification or revocation, or files a notification of planned changes,
or anticipated noncompliance, the permit terms and conditions shall remain
effective until the request is acted upon by the board makes a final
case decision. This provision shall not be used to extend the expiration
date of the effective permit.
3. Permits may be amended modified or
revoked upon the request of the permittee, or upon board initiative, to reflect
the requirements of any changes in the statutes or regulations.
9VAC25-610-140. Establishing applicable standards, limitations
or other permit conditions.
A. In addition to the conditions established in
9VAC25-610-100, 9VAC25-610-110, 9VAC25-610-120, and 9VAC25-610-130, each
permit shall include conditions with the following requirements:
1. A permit shall contain the total depth of each permitted
well in feet;
2. A permit shall specify the screened intervals of wells
authorized for use by the permit;
2. 3. A permit shall contain the designation of
the aquifers to be utilized;
3. 4. A permit shall contain conditions limiting
the withdrawal amount of a single well or a group of wells that comprise a
withdrawal system to a quantity specified by the board. A permit shall contain
a maximum annual withdrawal and a maximum monthly groundwater withdrawal
limit;
4. 5. A ground water groundwater
withdrawal permit for a public water supply shall contain a condition allowing
daily withdrawals at a level consistent with the requirements and conditions
contained in the waterworks operation permit, or equivalent, issued by the
Virginia Department of Health. This requirement shall not limit the authority
of the board to reduce or eliminate ground water groundwater
withdrawals by public water suppliers if necessary to protect human health or
the environment;
5. 6. The permittee shall not place a pump
permit shall state that no pumps or water intake device devices
are to be placed lower than the top of the uppermost confined aquifer that
a well utilizes as a ground water groundwater source or lower
than the bottom of an unconfined aquifer that a well utilizes as a ground
water groundwater source; in order to prevent dewatering
of a confined aquifer, loss of inelastic storage, or damage to the aquifer from
compaction.
6. 7. All permits shall specify monitoring
requirements as conditions of the permit.
a. Permitted users who are issued ground water groundwater
withdrawal permits based on 9VAC25-610-110 B 3 and C 2 shall install either
in-line totalizing flow meters or hour meters that record the hours of
operation of withdrawal pumps on each permitted well prior to beginning the
permitted use. Flow meters shall produce volume determinations within plus or
minus 10% of actual flows. Hour meters shall produce run times within plus or
minus 10% of actual run times. Hour meter readings will be multiplied by the
maximum capacity of the withdrawal pump to determine withdrawal amounts. A
defective meter or other device must be repaired or replaced within 30 days. A
defective meter is not grounds for not reporting withdrawals. During any period
when a meter is defective, generally accepted engineering methods shall be used
to estimate withdrawals and the period during which the meter was defective
must be clearly identified in ground water groundwater withdrawal
reports. An alternative method for determining flow may be approved by the
board on a case-by-case basis.
b. Permitted users who are issued ground water groundwater
withdrawal permits based on any section of this chapter not included in
subdivision 6 a 7 a of this subsection shall install in-line
totalizing flow meters to read gallons, cubic feet or cubic meters on each
permitted well prior to beginning the permitted use. Such meters shall produce
volume determinations within plus or minus 10% of actual flows. A defective
meter or other device must be repaired or replaced within 30 days. A defective
meter is not grounds for not reporting withdrawals. During any period when a
meter is defective, generally accepted engineering methods shall be used to
estimate withdrawals and the period during which the meter was defective must
be clearly identified in ground water groundwater withdrawal
reports. An alternative method for determining flow may be approved by the
board on a case-by-case basis.
c. Permits shall contain requirements concerning the proper
use, maintenance and installation, when appropriate, of monitoring equipment or
methods when required as a condition of the permit.
d. Permits shall contain required monitoring including type,
intervals, and frequency sufficient to yield data which are representative of
the monitored activity and including, when appropriate, continuous monitoring
and sampling.
e. Each permitted well shall be equipped in a manner such that
water levels can be measured during pumping and nonpumping periods without
dismantling any equipment. Any opening for tape measurement of water levels
shall have an inside diameter of at least 0.5 inches and be sealed by a removable
plug or cap. The permittee shall provide a tap for taking raw water samples
from each permitted well.
8. All permits shall prohibit withdrawals from wells not
authorized in the permit.
7. 9. All permits shall include requirements to
report the amount of water withdrawn from each permitted well and well system
on forms provided by the board with a frequency dependent on the nature and
effect of the withdrawal, but in no case less than once per year.
8. 10. Ground water Groundwater
withdrawal permits issued under this chapter shall have an effective and
expiration date which will determine the life of the permit. Ground water
Groundwater withdrawal permits shall be shall be effective for a fixed
term not to exceed 10 years. Permit duration of less than the maximum period of
time may be recommended in areas where hydrologic conditions are changing or
are not adequately known. The term of any permit shall not be extended by amendment
modification beyond the maximum duration. Extension of permits for the
same activity beyond the maximum duration specified in the original permit will
require reapplication and issuance of a new permit.
9. 11. Each permit shall have a condition
allowing the reopening of the permit for the purpose of amending modifying
the conditions of the permit to meet new regulatory standards duly adopted by
the board. Cause for reopening permits include but is not limited to a
determination that the circumstances under which the previous permit was based
have materially and substantially changed, or special studies conducted by the
board or the permittee show material and substantial change, since the time the
permit was issued and thereby constitute cause for permit amendment or
revocation.
10. 12. Each well that is included in a ground
water groundwater withdrawal permit shall have affixed to the well
casing, in a prominent place, a permanent well identification plate that
records the Department of Environmental Quality well identification number, the
ground water groundwater withdrawal permit number, the total
depth of the well and the screened intervals in the well, at a minimum. Such
well identification plates shall be in a format specified by the board and are
available from the Department of Environmental Quality.
B. In addition to the conditions established in
9VAC25-610-100, 9VAC25-610-110, 9VAC25-610-120, 9VAC25-610-130, and subsection
A of this section, each permit may include conditions with the following
requirements where applicable:
1. A withdrawal limit may be placed on all or some one
or more of the wells which that constitute a withdrawal
system;
2. A permit may contain quarterly, monthly, or daily
withdrawal limits or withdrawal limits based on any other frequency as
determined by the board;
3. A permit may contain conditions requiring water quality and
water levels monitoring at specified intervals in any wells deemed appropriate
by the board;
4. A permit may contain conditions specifying water levels
and water quality action levels in pumping and observation/monitoring wells
to protect against or mitigate water quality levels or aquifer
degradation. The board may require permitted users to initiate control measures
which include, but are not limited to, the following:
a. Pumping arrangements to reduce ground water groundwater
withdrawal in areas of concentrated pumping;
b. Location of wells to eliminate or reduce ground water
groundwater withdrawals near saltwater-freshwater interfaces;
c. Requirement of selective withdrawal from other available aquifers
than those presently used or proposed;
d. Selective curtailment, reduction or cessation of ground
water groundwater withdrawals to protect the public welfare, safety,
or health or to protect the resource;
e. Conjunctive use of freshwater and saltwater aquifers, or
waters of less desirable quality where water quality of a specific character is
not essential;
f. Construction and use of observation or monitoring wells,
drilled into aquifers between areas of ground water withdrawal (or proposed
areas of ground water withdrawal) and sources of lower quality water including
saltwater;
g. Prohibiting Well construction techniques that
prohibit the hydraulic connection of aquifers that contain different
quality waters, such as gravel packing, that could result in
deterioration of water quality in an aquifer; and
h. Such other necessary control or abatement techniques as are
technically feasible practicable to protect and beneficially utilize
the groundwater resource.
5. A permit may contain conditions limiting water level
declines in pumping wells and observation wells; and
6. All permits may include requirements to report water
quality and water level information on forms provided by the board with a
frequency dependent on the nature and effect of the withdrawal, but in no case
less than once per year; and
7. Permits shall require implementation of water
conservation and management plans developed to comply with requirements of
9VAC25-610-100.
C. In addition to conditions described in 9VAC25-610-130 and
subsections A and B of this section, the board may issue any groundwater
withdrawal permit with any terms, conditions and limitations necessary to
protect the public welfare, safety, and health or to protect the
resource.
9VAC25-610-150. Signatory requirements.
Any application, report, or certification shall be signed
as follows:
1. Application.
a. For a corporation: by a responsible corporate official.
For purposes of this section, a responsible corporate official means (i) a
president, secretary, treasurer, or vice president of the corporation in charge
of a principal business function, or any other person who performs similar
policy or decision-making functions for the corporation, or (ii) the manager of
one or more manufacturing, production, or operating facilities employing more
than 250 persons or having gross annual sales or expenditures exceeding
$25,000,000 (in second-quarter 1980 dollars), if authority to sign documents
has been assigned or delegated to the manager in accordance with corporate procedures.
b. For a municipality, state, federal or other public
agency by either a principal executive officer or ranking elected official. (A
principal executive officer of a federal, municipal, or state agency includes
the chief executive officer of the agency or head executive officer having
responsibility for the overall operation of a principal geographic unit of the
agency).
c. For a partnership or sole proprietorship, by a general
partner or proprietor respectively.
d. Any application for a permit under this regulation must
bear the signatures of the responsible party and any agent acting on the
responsible party's behalf.
A. Application. Any application for a permit under this
chapter must bear the applicant's signature or the signature of a person acting
in the applicant's behalf with the authority to bind the applicant. Electronic
submittals containing the original signature page, such as that contained in a
scanned document file, are acceptable.
2. B. Reports. All reports required by permits
and other information requested by the board shall be signed by:
a. One of the persons described in subdivision 1 a, b or c
of this section 1. The permittee; or
b. 2. A duly authorized representative of that
person. A person is a duly authorized representative only if:
(1) a. The authorization is made in writing to
the board by a person described in subdivision 1 a, b, or c subsection
A of this section; and
(2) b. The authorization specifies either an
individual or a position having responsibility for the overall operation of the
regulated withdrawal facility system or activity, such as the
position of plant manager, superintendent, or position of equivalent
responsibility. A duly authorized representative may thus be either a named
individual or any individual occupying a named position.
(3) If an authorization is no longer accurate because a
different individual or position has responsibility for the overall operation
of the facility, a new authorization must be submitted to the board prior to or
together with any separate information, or applications to be signed by an
authorized representative.
3. C. Certification of application and reports.
Any person signing a document under subdivision 1 or 2 subsection A
or B of this section shall make the following certification: I certify under
penalty of law that this document and all attachments were prepared under
my direction or supervision in accordance with a system designed to assure that
qualified personnel properly gather and evaluate the information submitted. Based
on my inquiry of the person or persons who manage the system or those persons
directly responsible for gathering the information, the information submitted
is to the best of my knowledge and belief true, accurate, and complete. I am
aware that there are significant penalties for submitting false information
including the possibility of fine and imprisonment for knowing violations.
9VAC25-610-160. Draft permit.
A. Upon receipt of a complete application for a new or
expanded withdrawal or a complete application to amend modify an
existing withdrawal, the board shall make a tentative decision to issue or deny
the application permit. If a tentative decision is to issue the
permit then a draft permit shall be prepared in advance of public notice. The
following tentative determinations shall be incorporated into a draft permit:
1. Conditions, withdrawal limitations, standards and other
requirements applicable to the permit;
2. Monitoring and reporting requirements;
3. Requirements for mitigation of adverse impacts; and
4. Requirements for a water conservation and management plan.
B. If the tentative decision is to deny the application
permit, the board shall do so in accordance with 9VAC25-610-340.
Part IV
Special Exception Application and Issuance
9VAC25-610-170. Application for a special exception.
A. Any person who wishes to initiate a ground water groundwater
withdrawal in any ground water groundwater management area and is
not exempted from the provisions of this chapter by 9VAC25-610-50 may apply for
a special exception in unusual cases where requiring the proposed user to
obtain a ground water groundwater withdrawal permit would be
contrary to the purpose of the Groundwater Ground Water
Management Act of 1992.
B. A special exception application shall be completed and
submitted to the board and a special exception issued by the board prior to the
initiation of any withdrawal not specifically excluded in 9VAC25-610-50 of
this chapter. Special exception application forms shall be in a format
specified by the board and are available from the Department of Environmental
Quality.
C. Due to the unique nature of applications for special
exceptions the board shall determine the completeness of an application on a
case-by-case basis. The board may require any information required in 9VAC25-610-90
C 2 or 3 9VAC25-610-90, 9VAC25-610-92, or 9VAC25-610-94, prior to
considering an application for a special exception complete.
D. Where the board considers finds an
application incomplete, the board may shall require the
submission of additional information after an application has been filed, and
may suspend processing of any application until such time as the applicant has
supplied missing or deficient information and the board considers finds
the application complete. An incomplete permit application for a special
exception may be suspended from processing 180 days from the date that the
applicant received notification that the application is deficient. Further,
where the applicant becomes aware that he omitted one or more relevant facts
from a special exception application, or submitted incorrect information in a
special exception application or in any report to the board, he shall
immediately submit such facts or the correct information.
9VAC25-610-190. Criteria for the issuance of special
exceptions.
A. The board shall issue special exceptions only in unusual
situations where the applicant demonstrates to the board's satisfaction that
requiring the applicant to obtain a ground water groundwater
withdrawal permit would be contrary to the intended purposes of the Groundwater
Ground Water Management Act of 1992.
B. The board may require compliance with any criteria
described in 9VAC25-610-110.
9VAC25-610-220. Establishing applicable standards, limitations
or other special exception conditions.
The board may issue special exceptions which include any
requirement for permits as described in 9VAC25-610-140. Special exceptions
shall not be renewed, except in the case of special exceptions that have been
issued to allow ground water groundwater withdrawals associated
with state-approved ground water groundwater remediation
activities. In the case of reissuance of a special exception for a
state-approved ground water groundwater remediation activity, the
board may require the holder of the special exception to submit any information
required in 9VAC25-610-90 C 2 or 3 9VAC25-610-90, 9VAC25-610-92, and
9VAC25-610-94, and may require compliance with any criteria described in
9VAC25-610-110. In the case where any other activity that is being supported by
the specially excepted withdrawal will require that the withdrawal extend
beyond the term of the existing special exception, the ground water groundwater
user shall apply for a permit to withdraw ground water groundwater.
9VAC25-610-240. Draft special exception.
A. Upon receipt of a complete application, the board shall
make a tentative decision to issue or deny the application special
exception. If a tentative decision is to issue the special exception then a
draft special exception shall be prepared in advance of public notice. The
following tentative determinations shall be incorporated into a draft special
exception:
1. Conditions, withdrawal limitations, standards and other
requirements applicable to the special exception;
2. Monitoring and reporting requirements; and
3. Requirements for mitigation of adverse impacts.
B. If the tentative decision is to deny the application
special exception, the board shall return the application to the
applicant. The applicant may then apply for a ground water groundwater
withdrawal permit for the proposed withdrawal in accordance with Part III (9VAC25-610-85
et seq.) of this chapter.
Part V
Public Involvement
9VAC25-610-250. Public notice of permit or special exception
action and public comment period.
A. Every draft permit described in 9VAC25-610-160 A and draft
special exception shall be given public notice in a form prescribed by the
board and, paid for by the owner applicant, by
publication once in a newspaper of general circulation in the area affected by
the withdrawal.
B. Notice of each draft permit described in 9VAC25-610-160 A
and draft special exception will be mailed by the board to each local governing
body within the ground water groundwater management area within
which the proposed withdrawal will occur on or before the date of public
notice.
C. The board shall allow a period of at least 30 days
following the date of the public notice for interested persons to submit
written comments on the tentative decision and to request an informal a
public hearing.
D. The contents of the public notice of a draft permit or
draft special exception action shall include:
1. Name and address of the applicant. If the location of the
proposed withdrawal differs from the address of the applicant the notice shall
also state the location in sufficient detail such that the specific location
may be easily identified;
2. Brief description of the beneficial use that the ground
water groundwater withdrawal will support;
3. The name and depth below ground surface of the aquifer that
will support the proposed withdrawal;
4. The amount of ground water groundwater
withdrawal requested expressed as an average gallonage per day;
5. A statement of the tentative determination to issue or deny
a permit or special exception;
6. A brief description of the final determination procedure;
7. The address, email address, and phone number of a
specific person or persons at the department's office from whom further
information may be obtained; and
8. A brief description on how to submit comments and request a
public hearing.
E. Public notice shall not be required for submission or
approval of plans and specifications or conceptual engineering reports not
required to be submitted as part of the application or for draft permits for
existing ground water groundwater withdrawals when such draft
permits are based solely on historic withdrawals.
F. When a permit or special exception is denied the board
will do so in accordance with 9VAC25-610-340.
9VAC25-610-260. Public access to information.
All information pertaining to permit and special exception
application and processing shall be available to the public groundwater
permit processing or in reference to any activity requiring a groundwater
permit under this chapter shall be available to the public unless the applicant
has made a showing that the information is protected by the applicant as a
trade secret covered by § 62.1-44.21 of the Code of Virginia. All
information claimed confidential must be identified as such at the time of
submission to the board.
9VAC25-610-270. Public comments and public hearing.
A. All written comments submitted during the 30-day
comment period described in 9VAC25-610-250 C shall be retained by the board and
considered during the board's final decision on the permit or special
exception.
B. A. The director shall consider all written
comments and requests for an informal a public hearing received
during the comment period, and shall make a determination on the necessity of an
informal a public hearing in accordance with 9VAC25-230-50
§ 62.1-44.15:02 of the Code of Virginia. All proceedings, informal
public hearings, and decisions from them it will be
in accordance with Procedural Rule No. 1 § 62.1-44.15:02 of the
Code of Virginia.
C. Should the director, in accordance with Procedural Rule
No. 1, determine to dispense with the informal hearing, he may grant the permit
or special exception, or, at his discretion, transmit the application or
request, together with all written comments thereon and relevant staff
documents and staff recommendations, if any, to the board for its decision.
D. B. Any owner applicant or
permittee aggrieved by any an action of the board or
director taken without a formal hearing or inaction of the board or director
may request in writing a formal hearing pursuant to Procedural Rule No. 1
§ 62.1-44.25 of the Code of Virginia.
9VAC25-610-280. Public notice of hearing.
A. Public notice of any informal public hearing
held pursuant to 9VAC25-610-270 shall be circulated as follows:
1. Notice shall be published once in a newspaper of general
circulation in the area affected by the proposed withdrawal at least 30 days
in advance of the public hearing; and
2. Notice of the informal public hearing shall
be sent to all persons and government agencies which received a copy of the
public notice of the draft permit or special exception and to those persons
requesting an informal a public hearing or having commented in
response to the public notice in accordance with § 62.1-44.15:02
of the Code of Virginia.
B. Notice shall be effected pursuant to subdivisions A 1
and A 2 of this section, upon mailing, at least 30 days in advance of the
informal hearing. The cost of public notice shall be paid by the
applicant.
C. The content of the public notice of any informal public
hearing held pursuant to 9VAC25-610-270 shall include at least the following:
1. Name and address of each person whose application will be
considered at the informal public hearing, the amount of ground
water groundwater withdrawal requested expressed as an average
gallonage per day, and a brief description of the beneficial use that will be
supported by the proposed ground water groundwater withdrawal.
2. The precise location of the proposed withdrawal and the
aquifers that will support the withdrawal. The location should be described,
where possible, with reference to route numbers, road intersections, map
coordinates or similar information.
3. A brief reference to the public notice issued for the
permit or special exception application and draft permit or special exception,
including identification number and date of issuance unless the public notice
includes the informal public hearing notice.
4. Information regarding the time and location for the informal
public hearing.
5. The purpose of the informal public hearing.
6. A concise statement of the relevant issues raised by the
persons requesting the informal public hearing.
7. Contact person and the address mailing address,
email address, phone number, and name of the Department of Environmental
Quality office at which interested persons may obtain further information or
request a copy of the draft permit or special exception.
8. A brief reference to the rules and procedures to be
followed at the informal public hearing.
D. Public notice of any formal hearing held pursuant to
9VAC25-610-270 D C shall be in accordance with Procedural Rule
No.1 (9VAC25-230).
Part VI
Permit and Special Exception Amendment Modification, Revocation
and Denial
9VAC25-610-290. Rules for amendment modification
and revocation.
Permits and special exceptions shall be amended modified
or revoked only as authorized by this part of this chapter as follows:
1. A permit or special exception may be amended modified
in whole or in part, or revoked;
2. Permit or special exception amendments modifications
shall not be used to extend the term of a permit or special exception; and
3. Amendment Modification or revocation may be
initiated by the board, on at the request of the permittee, or
other person at the board's discretion under applicable laws or the provisions
of this chapter.
9VAC25-610-300. Causes for revocation.
A. After public notice and opportunity for a formal hearing
pursuant to 9VAC25-230-100 a permit or special exception can be revoked for
cause. Causes for revocation are as follows:
1. Noncompliance with any condition of the permit or special
exception;
2. Failure to fully disclose all relevant facts or
misrepresentation of a material fact in applying for a permit or special
exception, or in any other report or document required by the Act, this chapter
or permit or special exception conditions;
3. The violation of any regulation or order of the board, or
any order of a court, pertaining to ground water groundwater
withdrawal;
4. A determination that the withdrawal authorized by the
permit or special exception endangers human health or the environment and can
not be regulated to acceptable levels by permit or special exception amendment
modification;
5. A material change in the basis on which the permit or
special exception was issued that requires either a temporary or permanent
reduction, application of special conditions or elimination of any ground
water groundwater withdrawal controlled by the permit or special
exception.
B. After public notice and opportunity for a formal hearing
pursuant to 9VAC25-230-100 a permit or special exception can may
be revoked when any of the developments described in 9VAC25-610-310 occur and
the holder of the permit or special exception agrees to or requests the
revocation.
9VAC25-610-310. Causes for amendment modification.
A. A permit or special exception may, at the board's
discretion, be amended modified for any cause as described in
9VAC25-610-300.
B. A permit or special exception may be amended modified
when any of the following developments occur:
1. When new information becomes available about the ground
water groundwater withdrawal covered by the permit or special
exception, or the impact of the withdrawal, which was not available at permit
or or special exception issuance and would have justified the
application of different conditions at the time of issuance;
2. When ground water groundwater withdrawal
reports submitted by the permittee indicate that the permittee is using less
than 60% of the permitted withdrawal amount for a five-year period;
3. When a change is made in the regulations on which the
permit or special exception was based; or
4. When changes occur which are subject to "reopener
clauses" in the permit or special exception.
9VAC25-610-320. Transferability of permits and special
exceptions.
A. Transfer by amendment modification. Except
as provided for under automatic transfer in subsection B of this section, a
permit or special exception shall be transferred only if the permit has been amended
modified to reflect the transfer.
B. Automatic transfer. Any permit or special exception shall
be automatically transferred to a new owner as allowed by the minor
modification process described in 9VAC25-610-330 B 8 if:
1. The current owner notifies the board within 30 days
in advance of the proposed transfer of ownership;
2. The notice to the board includes a notarized written
agreement between the existing permittee and proposed new owner permittee
containing a specific date of transfer of permit or special exception
responsibility, coverage and liability between them to the new
permittee, or that the existing permittee will retain such responsibility,
coverage, or liability, including liability for compliance with the
requirements of any enforcement activities related to the permitted activity;
and
3. The board does not within the 30-day time period notify the
existing owner permittee and the proposed owner permittee
of its intent to amend modify, revoke, or reissue the permit or
special exception.; and
4. The permit transferor and the permit transferee provide
written notice to the board of the actual transfer date.
9VAC25-610-330. Minor amendment modification.
A. Upon request of the holder of a permit or special
exception, or upon board initiative with the consent of the holder of a permit
or special exception, minor amendments modifications may be made
in the permit or special exception without following the public involvement
procedures.
B. For ground water groundwater withdrawal
permits and special exceptions, minor amendments modifications
may only:
1. Correct typographical errors;
2. Require reporting at a greater frequency than required in
the permit or special exception;
3. Add additional or more restrictive monitoring requirements
than required in the permit or special exception;
4. Replace an existing well so long as provided that
the replacement well is screened in the same aquifer or aquifers as the
existing well, the replacement well is in the same location as near
vicinity of the existing well, the ground water groundwater
withdrawal does not increase, and the area of impact does not increase;
5. Add additional wells so long as the additional wells are
screened in the same aquifer or aquifers as the existing well,
additional wells are in the same location as near vicinity of the
existing well, the total ground water groundwater withdrawal does
not increase, and the area of impact does not increase;
6. Combine the withdrawals governed by multiple permits into
one permit when the systems that were governed by the multiple permits are
physically connected, as long as the interconnection will not result in
additional ground water groundwater withdrawal and the area of
impact will not increase;
7. Change an interim compliance date in a schedule of
compliance to no more than 120 days from the original compliance date and
provided it will not interfere with the final compliance date; and
8. Allow for a change in ownership or operational control when
the board determines that no other change in the permit or special exception is
necessary, provided that a written agreement containing a specific date for
transfer of permit or special exception responsibility, coverage and liability
from the current to the new owner has been submitted to the board.;
and
9. Revise a water conservation and management plan to
update conservation measures being implemented by the permittee that increase
the amount of groundwater conserved.
9VAC25-610-340. Denial of a permit or special exception.
A. The director shall make a decision to tentatively deny
the permit or special exception requested if the requirements of this chapter
are not met. Bases for denial include, but are not limited to, the following:
1. The cumulative stabilized impact of the proposed
withdrawal in combination with all existing lawful withdrawals will lower water
levels in a confined aquifer below a point that represents 80% of the distance
between the historical prepumping water levels in the aquifer and the top of
the aquifer;
2. The groundwater withdrawal amount requested in the
permit application exceeds the amount that can be applied to the proposed
beneficial use;
3. Available supplies of groundwater are insufficient for
all who desire to use them and the preference is being given to use for human
consumption; and
4. Failure to implement a water conservation and management
plan associated with a previously permitted withdrawal.
A. B. The applicant shall be notified by letter
of the department's director's preliminary decision to recommend
to the board denial of tentatively deny the permit or special
exception requested.
B. C. The department shall provide sufficient
information to the applicant regarding the rationale for denial, such that the
applicant may, at his option, modify the application in order to achieve a
favorable recommendation; withdraw his application; or proceed with the
processing on the original application.
C. D. Should the applicant withdraw his
application, no permit or special exception will be issued.
D. E. Should the applicant elect to proceed with
the original project as originally proposed, the staff shall make
its recommendation of denial to the director for determination of the need for
public notice as provided for in Part V of this chapter director shall
advise the applicant of his right to an informal fact finding in accordance
with § 2.2-4019 of the Administrative Process Act to consider the denial.
Part VII
Enforcement
9VAC25-610-350. Enforcement.
The board may enforce the provisions of this chapter
utilizing all applicable procedures under the Groundwater Ground
Water Management Act of 1992 or any other section of the Code of Virginia
that may be applicable.
9VAC25-610-370. Control of naturally flowing wells.
The owner of any well that naturally flows, in any portion of
the Commonwealth, shall either:
1. Permanently abandon the well in accordance with the
Virginia Department of Health's Private Well Construction Regulations; or
2. Equip the well with valves that will completely stop the
flow of ground water groundwater when it is not being applied to
a beneficial use.
9VAC25-610-380. Statewide information requirements.
The board may require any person withdrawing ground water
groundwater for any purpose anywhere in the Commonwealth, whether or not
declared to be a ground water groundwater management area, to
furnish to the board such information that may be necessary to carry out the
provisions of the Groundwater Ground Water Management Act of
1992. Ground water Groundwater withdrawals that occur in
conjunction with activities related to the exploration and production of oil,
gas, coal, or other minerals regulated by the Department of Mines, Minerals and
Energy are exempt from any information reporting requirements.
9VAC25-610-390. Statewide right to inspection and entry.
Upon presentation of credentials the board, or any duly
authorized agent, shall have the power to enter, at reasonable times and under
reasonable circumstances, any establishment or upon any property, public or
private, located anywhere in the Commonwealth for the purposes of obtaining
information, conducting surveys or inspections, or inspecting wells and springs
to ensure compliance with any permits, standards, policies, rules, regulations,
rulings and special orders which the board or department may adopt, issue or
establish to carry out the provisions of the Groundwater Ground Water
Management Act of 1992 and this chapter.
9VAC25-610-400. Evaluation of regulation. (Repealed.)
Within three years after January 1, 1999, the department
shall perform an analysis of this chapter and provide the board with a report
on the results. The analysis shall include (i) the purpose and need for the
chapter, (ii) alternatives which would achieve the stated purpose of this
chapter in a less burdensome and less intrusive manner, (iii) an assessment of
the effectiveness of this chapter, (iv) the results of a review of current
state and federal statutory and regulatory requirements, and (v) the results of
a review as to whether this chapter is clearly written and easily
understandable by affected entities.
Upon review of the department's analysis, the board shall
confirm the need to (i) continue this chapter without amendment, (ii) repeal
this chapter, or (iii) amend this chapter. If the board's decision is to repeal
or amend this chapter, the board shall authorize the department to initiate the
applicable regulatory process to carry out the decision of the board.
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 (9VAC25-610)
Water Division Permit Application Fee.
Application for a Ground Water Withdrawal Permit (with
instructions) (rev. 6/99).
Ground Water Withdrawal Permit Change of Ownership
Agreement Form (eff. 6/99).
Revocation Agreement Form (eff. 6/99).
Water Well Completion Report, Form GW2, (rev. 6/99).
Permit to Withdraw Ground Water (eff. 6/99).
Public Notice Authorization Form—-Authorization for Public
Notice Billing to Ground Water Withdrawal Permit Applicant (eff. 6/99).
Preapplication Meeting Application for a Ground Water
Groundwater Withdrawal Permit (eff. 6/99).
Local and Areawide Planning Requirements (eff. 5/99).
Quarterly Groundwater Withdrawal Report.
Water
Division Permit Application Fee (rev. 9/12).
Application
Instructions for Completing a Groundwater Withdrawal Permit Application
(undated).
Application
for a Groundwater Withdrawal Permit (rev. 9/12).
Groundwater
Withdrawal Permit - Change of Ownership Agreement Form (undated).
Uncontested
Termination Agreement (undated).
Water
Well Completion Report, Form GW2 (undated).
Public
Notice Authorization Form - Authorization for Public Notice Billing to
Groundwater Withdrawal Permit Applicant (undated).
Preapplication
Meeting - Application for a Groundwater Withdrawal Permit (rev. 9/12).
Local
and Areawide Planning Requirements (rev. 9/12).
Quarterly
Groundwater Withdrawal Report.
Mitigation
Plan (undated).
VA.R. Doc. No. R09-1781; Filed October 1, 2012, 1:46 p.m.
Proposed Regulation
Title of Regulation: 9VAC25-740. Water Reclamation
and Reuse Regulation (amending 9VAC25-740-10, 9VAC25-740-30 through
9VAC25-740-180, 9VAC25-740-200; adding 9VAC25-740-45, 9VAC25-740-55,
9VAC25-740-105).
Statutory Authority: § 62.1-44.15 of the Code of
Virginia.
Public Hearing Information:
December 13, 2012 - 2 p.m. - Department of Environmental
Quality, Piedmont Regional Office, Training Room, 4949-Cox Road, Glen Allen, VA
Public Comment Deadline: January 11, 2013.
Agency Contact: William K. Norris, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4022, FAX (804) 698-4347, or email
william.norris@deq.virginia.gov.
Basis: Section 62.1-44.15 of the Code of Virginia
authorizes the State Water Control Board to promulgate regulations necessary to
carry out its powers and duties.
Specific to water reclamation and reuse, § 62.1-44.2 of the
Code of Virginia establishes the purpose of the law, among other things, to
promote and encourage the reclamation and reuse of wastewater in a manner
protective of the environment and public health. More specifically, §§ 62.1-44.15
(10) and 62.1-44.15 (15) give authority to the board to adopt regulations as it
deems necessary to enforce the general water quality management program, and to
promote and establish requirements for the reclamation and reuse of wastewater
that are protective of state waters and public health as an alternative to
directly discharging pollutants into state waters.
Purpose: The primary purpose of this regulatory action
is to amend the Water Reclamation and Reuse Regulation (9VAC25-740), which
became effective October 1, 2008. Since its implementation, both the Department
of Environmental Quality (DEQ) and the public have identified needed changes to
the regulation that would improve the State Water Control Board's ability to
implement a more effective water reclamation and reuse regulatory program for
the protection of public health and safety. Two items that will be addressed
among other changes to improve implementation of the regulation are (i) the
inflexibility of the regulation to accept deviations from design or operational
requirements that may discourage projects capable of producing or distributing
reclaimed water suitable for reuse in a manner protective of the environment
and public health and (ii) the lack of provisions to authorize temporary water
reclamation and reuse without a permit during periods of significant drought to
conserve potable water supply.
Substance: Amendments to the Water Reclamation and Reuse
Regulation:
1. Add provisions to allow design or operational deviations
for facilities still capable of producing or distributing reclaimed water in a
manner protective of the environment and public health;
2. Add provisions for an emergency authorization to reclaim
and reuse wastewater without a permit during periods of significant drought;
3. Add a requirement for an auxiliary or backup plan for conjunctive
wastewater treatment works and reclamation systems that rely primarily or
completely on water reuse for elimination of wastewater;
4. Modify and add requirements to manage pollutants of concern
from significant industrial users for reclamation systems and satellite
reclamation systems that will produce Level 1 reclaimed water, and for
reclamation systems that are part of an indirect potable reuse project;
5. Add design and operational requirements for UV disinfection
of Level 1 and Level 2 reclaimed water;
6. Add or modify several terms and their associated
definitions related to the use of these terms within the context of the
regulation;
7. Modify language to clarify service agreement or contract
requirements for end users of reclaimed water, and alternative permitting
options for reclaimed water distribution systems;
8. Modify activities excluded from the requirements of the
regulation related to alternative onsite sewage systems permitted by the
Virginia Department of Health, utilization of harvested rainwater and storm
water, and indirect non-potable reuse of reclaimed water;
9. Add the Water Withdrawal Reporting Regulation (9VAC25-200)
to the list of other board regulations with which the Water Reclamation and
Reuse Regulation has a relationship;
10. Modify the point of compliance (POC) for reclaimed water
standards to include POCs for certain system storage facilities and reclaimed
water distribution systems, in addition to POCs required for reclamation
systems and satellite reclamation systems;
11. Add reclaimed water monitoring requirements for certain
system storage facilities and reclaimed water distribution systems where
determined necessary by the board;
12. Modify reuses listed in regulation to include irrigation
to establish erosion control and move ship ballast to industrial reuses
requiring a minimum of Level 1 reclaimed water;
13. Modify the description of unlisted reuses and add all
reuses of reclaimed industrial wastewater that will require reclaimed water
standards and monitoring requirements developed on a case-by-case basis;
14. Add permit application, design, construction, and
operation requirements that are specific to indirect potable reuse projects;
15. Add a provision that allows reclaimed water agents to
inspect end users reuses and storage facilities as part of the service
agreement or contract between the reclaimed water agent and an end user;
16. Modify cross-connection and backflow prevention
requirements for reclaimed water distribution systems to be consistent with regulations
of other state agencies (e.g., Uniform State Building Code);
17. Clarify that the requirement for reclaimed water
distribution systems to maintain reclaimed water standards for intended reuses
does not apply to Corrective Action Thresholds, which are operational standards
for only reclamation systems and satellite reclamation systems;
18. Modify Class I reliability requirements for Level 1
reclamation systems and satellite reclamation systems to include associated
pump stations not addressed by the Sewage Collection and Treatment Regulations,
9VAC25-790;
19. Add requirement prohibiting application of reclaimed water
during winds that would cause overspray or aerosol drift into or beyond buffer
zones of setbacks. This requirement is consistent with the prohibition of
reclaimed water runoff from irrigation sites;
20. Revise an existing prohibition that will allow the reuse
of reclaimed water inside residential buildings and structures that are other
than one or two family dwellings;
21. Revise an existing design requirement that allows
non-system storage facilities of reclaimed water to discharge under less
restrictive circumstances;
22. Add provisions to prevent unauthorized discharges and to
recover flush water or reclaimed water for use or reuse from the maintenance of
reclaimed water distribution systems;
23. Add a prohibition against significant adverse impacts to
other beneficial uses that may result from the diversion of source water from a
VPDES permitted surface water discharge to water reclamation and reuse;
24. Add a provision to submit information necessary for an
impact analysis for each VPDES permitted treatment works that proposes a new or
increased diversion of its discharge to reclamation and reuse; and
25. Make minor changes to (i) clarify or make more specific
the language of the regulation, (ii) eliminate redundancy, (iii) relate
separate sections or subdivisions of the regulation, and (iv) correct
grammatical and typographical errors.
Issues: The proposed amendments are not expected to
result in any disadvantages to the public, the regulated community, the agency,
or the Commonwealth. The proposal should have advantages for the regulated
community and the agency through improved implementation of the program.
As stated in the Notice of Intended Regulatory Action for this
regulatory action, the board studied the possible reuse of reclaimed water for
groundwater recharge and presented its findings in a report to the Regulatory
Advisory Panel (RAP) with points for discussion by the panel. Based on
discussions of the RAP and comments received from individual RAP members, there
appears to be general support by the RAP for groundwater recharge with
reclaimed water for subsequent reuse. While DEQ appreciates the input of the
RAP and recognizes the benefits of groundwater recharge with reclaimed water
for reuse, the agency has determined that amendments to the Water Regulation
and Reuse Regulation to address groundwater recharge should follow the
establishment of a new or revised board policy on groundwater recharge, and
should be part of or follow a regulatory action to amend the Groundwater
Regulations (9VAC25-280). Input received from the RAP will provide useful
information to support these efforts in the future.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The State
Water Control Board (the Board) proposes to 1) allow variances from design,
construction, operation or maintenance requirements of this regulation, 2)
allow the production, distribution and reuse of reclaimed water without a
permit when there is a substantial threat to public safety, 3) allow greater
flexibility in the management of pollutants of concern from significant
industrial users, 4) expand the list of approved reuses not requiring
case-by-case approval, 5) expand the reuse of reclaimed water by allowing the
reuse of water in more types of dwellings, 6) allow non-system storage
facilities of reclaimed water to discharge under less restrictive
circumstances, 7) provide facility owners the authority to inspect reuses and
storage facilities of end users with whom they have a service agreement or
contract, 8) require permit applicants to plan for emergencies, 9) establish
that alternative onsite sewage systems regulated by the Virginia Department of
Health (VDH) are required to obtain a separate permit from the Department of
Environmental Quality (DEQ), 10) provide authority to add new points of
compliance downstream for storage facilities and reclaimed water distribution
systems, 11) establish additional monitoring requirements to address reclaimed
water degradation during longer term storage, 12) introduce design requirements
to improve maintenance and compliance with operational requirements of the
regulation for reclaimed water distribution systems, and 13) require that pump
stations meet reliability requirements for Level 1 reclamation systems and
satellite reclamation systems.
Result of Analysis. The benefits likely exceed the costs for
one or more proposed changes. There is insufficient data to accurately compare
the magnitude of the benefits versus the costs for other changes.
Estimated Economic Impact. The Board proposes numerous changes
that will affect water reclamation and reuse facilities and activities in Virginia.
Participation in water reclamation and reuse is voluntary. Thus, these
regulations apply to those who voluntarily participate in water reclamation and
reuse. The proposed changes include many substantive changes as well as many
minor changes such as clarification of the language of the regulation,
elimination of redundancies, formatting of sections or subdivisions of the
regulation, and correction of grammatical and typographical errors. A number of
the substantive changes are expected to provide direct benefits to the water
reclamation and reuse facility owners thereby encouraging reclamation and reuse
while a number of other changes are expected to introduce additional compliance
costs. In almost all cases no reliable information is available to quantify the
size of the expected benefits or expected costs. A description of the likely
economic impacts of substantive changes is as follows.
One of the substantive changes will provide authority to the
Board to issue variances from design, construction, operation, or maintenance
requirements of this regulation. The proposed language describes circumstances
for which a variance may be considered, information to be included in an
application for a variance, the period within which the board must act on a variance
request, minimum factors to be considered by the board when acting upon a
variance request, the Boards disposition of a variance request, effective date
of a variance request when granted, variance nontransferability and
incorporation into the project permit, and circumstances where variance
procedures contained in the other regulations may apply in lieu of the variance
procedures contained in this regulation.
According to DEQ, primarily due to high compliance costs,
applicants have requested exceptions to design or operational requirements of
the regulation, but DEQ was unable to grant such exceptions or variances
without the authority established in law or regulation. With the proposed
changes, DEQ will have greater flexibility where the design, construction,
operation or maintenance of a water reclamation and reuse proposal may not
conform to specific requirements of the regulation. Greater flexibility should
help DEQ accommodate requests for less expensive alternative solutions to
design requirements of the regulation. DEQ does not expect any increased risks
to the environment or public health from this proposed change. Approximately
five variances are expected to be isssued annually.
Another significant change will provide authority to DEQ to allow
the production, distribution and reuse of reclaimed water without a permit when
the board finds that due to drought there is insufficient public water supply
that may result in a substantial threat to public safety. The language
regarding this change describes circumstances under which the board can issue
an emergency authorization, projects that are or are not eligible for emergency
authorization, permit application requirements following the issuance of an
emergency authorization, the effective duration of the emergency authorization,
and public participation requirements for an emergency authorization. This
change will provide only a temporary authorization that will expire
automatically unless an application for a permanent authorization is made within
180 days. DEQ had in the past received requests to temporarily authorize
emergency reuse of reclaimed water during severe droughts without permit
coverage, but was unable to grant such authorization without the authority
established in regulation. The amendment will provide DEQ the authority and
flexibility to temporarily authorize reclamation and specific reuses of
reclaimed wastewater without a permit during periods of significant drought.
This change has the potential to help regulants avoid potentially significant
compliance costs during severe droughts. Several applications for emergency
authorizations may be expected in severe drought years.
The proposed changes will also clarify and simplify
requirements to manage pollutants of concern from significant industrial users
(SIUs) for reclamation systems and satellite reclamation systems that will
produce Level 1 reclaimed water, and for reclamation systems that are part of
an indirect potable reuse project. This change will eliminate unnecessary
reviews and approvals by the board, no longer require pretreatment programs,
and allow greater flexibility in the management of pollutants of concern from
SIUs for the purpose of producing Level 1 reclaimed water reducing monitoring,
administrative, inspection, investigation, and sampling costs.
The proposed changes will also expand the list of approved
reuses not requiring case-by-case approval by DEQ and to include irrigation to
establish erosion control and will move ship ballast to industrial reuses
requiring a minimum of Level 1 reclaimed water. This change will reduce the
time to review and approve reuse involving irrigation to establish erosion
control. It will also make reclaimed water standards required for ship ballast
reuse consistent with US Coast Guard proposed standards for ship ballast
discharges within US waters. Both DEQ and permit holders are expected to
benefit from this change in terms of reduced administrative compliance costs.
The board also proposes to expand the reuse of reclaimed water
by removing a current prohibition that does not allow the reuse of reclaimed
water inside residential buildings and structures that are other than one or
two family dwellings (i.e., single family homes, townhouses and duplexes).
Since this change allows greater use of reclaimed water, some regulants may be
able to take advantage of it and enjoy some savings and reduce their reliance
on potable water supplies.
The proposed regulations will also allow non-system storage
facilities of reclaimed water to discharge under less restrictive
circumstances. Currently, no reclaimed water storage facility can discharge
except in the event of a 25-year, 24-hour storm. The proposed changes will
allow non-system storage facilities of reclaimed water to discharge in the
event of a 10-year, 24-hour storm, reducing the necessary storage capacity of
these facilities. Allowing smaller facilities to be built can reduce
construction and maintenance costs of reclaimed water storage facilities. This
change is expected to benefit end users of reclaimed water that must store the
reclaimed water between periods of reuse, such as for irrigation (e.g., at golf
courses), utilizing existing ponds that predate the design requirements of the
current regulation.
The Board will also require that the applicant or permit holder
must reserve the right to perform routine or periodic inspections of an end
users reclaimed water reuses and storage facilities to ensure compliance with
the regulations. This change will provide reclaimed water agents the authority
to inspect reuses and storage facilities of end users with whom they have a
service agreement or contract. According to DEQ, while reuses and storage
facilities of an end user may be inspected by DEQ, most end users will not be
issued a permit by or have a relationship with DEQ. This change will allow
reclaimed water agents to be more aware of and responsive to problems with end
users, and to exercise more control in the management of reclaimed water within
their service areas. This change may also provide some administrative relief to
DEQ as it may be able to direct some of its resources to other areas as needed.
Despite these expected benefits, the proposed changes may
introduce additional compliance costs also. One of the changes will require
applicants to provide information on specific measures to be immediately
implemented for the management of wastewater and reclaimed water in the event
that primary reuses of reclaimed water generated by specific conjunctive
systems cease or fail. The goal of this change is to address the vulnerability
of specific conjunctive systems with no or limited wastewater management
options other than water reuse in the event that primary reuses of reclaimed
water cease or fail. This change will force permit applicants to plan for
emergencies and come up with an auxiliary or backup plan to manage unused
reclaimed water. While the required planning may be fairly inexpensive to
comply with, there could be significant implementation costs in a crisis
situation. However, the benefits of the planning would also be high in such an
event.
Another proposed change will establish that alternative onsite
sewage systems regulated by VDH are required to obtain a separate permit from
DEQ if water reclamation and reuse is part of the system. This change is
expected to impose additional costs on owners of these systems interested in
making water reclamation and reuse a part of the system. Increased costs may
include the fee of a second permit and costs for additional monitoring,
reporting, and record keeping required for reclamation and reuse. On the other
hand, this change will clarify the applicability of this regulation to VDH
permitted alternative onsite sewage systems and allow the use of such systems
for water reclamation and reuse.
The proposed regulations also provide authority to the Board to
add new points of compliance downstream for storage facilities and reclaimed
water distribution systems. This change will allow the Board to establish
locations for new monitoring requirements where deemed necessary. Depending on
how many and which parameters are analyzed, the cost per sampling event at each
point of compliance may vary from $18 to $96. However, since the decision to
add new points of compliance will be made on a case by case basis, DEQ does not
know the number of cases where a new point of compliance may be established.
Similarly, the proposed regulations will also establish
additional monitoring requirements for reclamation systems where reclaimed
water is held in system storage for a period greater than 24 hours or for
satellite reclamation systems where the system storage facility discharges to a
reclaimed water distribution system, a non-system storage facility, or directly
to a reuse. This change has the potential to create additional monitoring and
reporting costs on system owners. The intent of this change is to mitigate the
environmental and public health risks associated with reclaimed water
degradation during longer term storage. Since the monitoring parameters and
frequencies will be determined on a case-by-case basis, it is not known how
many systems may be required to adopt additional monitoring requirements.
The proposed changes will add a new design requirement that
valves and outlets on reclaimed water distribution system pipelines are placed
where they can be accessed or would allow isolation of pipe sections for
maintenance activities. The goal of this requirement is to improve maintenance
and compliance with operational requirements of the regulation for reclaimed
water distribution systems. This change has the potential to add some
compliance costs as it may result in installation of additional valves or
installation in places where installation would not normally be preferred.
The Board proposes to require that pump stations meet
reliability requirements for Level 1 reclamation systems and satellite reclamation
systems. This change is proposed to ensure that all components of Level 1
reclamation systems, including pump stations, will perform reliably or will
initiate other contingencies in the event of power failure or other disruption
at the facility. This change is expected to reduce the potential discharge of
substandard reclaimed water to reuses and reduce environmental or public safety
risks. However, improving the reliability of pump stations may add to
compliance costs.
Businesses and Entities Affected. According to DEQ, there are
23 facilities currently authorized by individual Virginia Pollution Abatement
(VPA) permits and 1033 facilities authorized by individual Virginia Pollutant
Discharge Elimination System (VPDES) permits that are capable of providing
source water for and/or implementing water reclamation and reuse. Seven water
reclamation and reuse projects currently authorized by either a VPDES or VPA
permit within the state provide reclaimed water to a variety of end users that
range from small to large businesses for cooling, irrigation, fire suppression,
toilet flushing, and car washing. While the need and demand for reclaimed water
in Virginia is anticipated to grow, there is insufficient data and no clear
trends to extrapolate the number and frequency of water reclamation and reuse
projects that will be proposed, and the number and type of end users that will
served by these projects.
Localities Particularly Affected. The proposed regulations
apply throughout the Commonwealth.
Projected Impact on Employment. Taken together, the proposed
changes do not have a clear direct and significant impact on employment in the
Commonwealth.
Effects on the Use and Value of Private Property. The proposed
changes that benefit facility owners are expected to add to the asset value of
their water reclamation and reuse businesses. Conversely, the proposed changes
that may introduce additional compliance costs are expected to negatively
affect the asset value of water reclamation and reuse businesses.
Small Businesses: Costs and Other Effects. According to DEQ,
among the VPA permitted facilities, 13 are privately owned and may be
considered small businesses. Among the VPDES permitted facilities, 299 are
privately owned and may be considered small businesses. The costs and other
effects on small businesses are the same as discussed above.
Small Businesses: Alternative Method that Minimizes Adverse
Impact. There are no known alternative methods that would accomplish the same
goals while minimizing adverse impacts.
Real Estate Development Costs. The proposed changes are not
expected to have a direct 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 DPB's best estimate of these economic impacts.
Agency's Response to Economic Impact Analysis: The
department has reviewed the economic impact analysis prepared by the Department
of Planning and Budget and has no comment.
Summary:
Amendments to the Water Reclamation and Reuse Regulation
(9VAC25-740) address issues to improve the board's ability to effectively
promote and encourage the reclamation and reuse of wastewater in a manner
protective of the environment and public health. Amendments would allow (i)
design or operational deviations for facilities still capable of producing or
distributing reclaimed water in a manner protective of the environment and
public health and (ii) temporary authorization of water reclamation and reuse
without a permit during periods of significant drought. These amendments are
needed to improve implementation of the regulation and to further promote and
encourage water reclamation and reuse.
Part I
Definitions and General Program Requirements
9VAC25-740-10. Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise.
"Beneficial use" means both instream and
offstream uses. Instream beneficial uses include, but are not limited to, the
protection of fish and wildlife resources and habitat, maintenance of waste
assimilation, recreation, navigation, and cultural and aesthetic values. The
preservation of instream flows for purposes of the protection of navigation,
maintenance of waste assimilation capacity, the protection of fish and wildlife
resources and habitat, recreation, or cultural and aesthetic values is an
instream beneficial use of Virginia's waters. Offstream beneficial uses include,
but are not limited to, domestic (including public water supply), agricultural,
electric power generation, commercial, and industrial uses.
"Biological nutrient removal (BNR)" means treatment
that achieves an annual average of 8.0 mg/l total nitrogen (N) and 1.0 mg/l
total phosphorus (P).
"Board" means the Virginia State Water Control
Board or State Water Control Board.
"Bulk irrigation reuse" means reuse of reclaimed
water for irrigation of an area greater than five acres on one contiguous
property.
"Class I reliability" means a measure of
reliability that requires a treatment works design to provide continuous
satisfactory operation during power failures, flooding, peak loads, equipment
failure, and maintenance shut-down. This class includes design features, such
as additional electrical power sources, additional flow storage capacity, and
additional treatment units that provide operation in accordance with the issued
certificate or permit requirements.
"Conjunctive system" means a system consisting of
a wastewater treatment works and reclamation system having no or minimal
separation of treatment processes between the treatment works and the
reclamation system.
"Controlled use" means a use of reclaimed water
authorized in accordance with this chapter.
"Corrective action threshold" or "CAT"
means a bacterial, turbidity or total residual chlorine standard for reclaimed
water at which measures shall be implemented to correct operational problems of
the reclamation system within a specified period, or divert flow from the
reclamation treatment process in accordance with this chapter.
"Design flow" means the capacity at which a
treatment works is designed to reliably treat an average 24-hour influent flow
rate, assessed over a period of a month for all months of operation within a
year, including appropriate peak factors provided to meet applicable
reliability and redundancy requirements. The average 24-hour influent flow rate
shall be based on projected estimates of influent flow to be received by the treatment
works.
"Designated design flow" means the design flow
of a reclamation system that may be some percentage of or equal to the design
flow of a treatment works providing wastewater or partially treated wastewater
to the reclamation system to produce reclaimed water.
"Direct beneficial use" means the use of reclaimed
water in a manner protective of the environment and public health that involves
transport of the reclaimed water from the point of reclamation treatment and
production to the point of use without an intervening discharge to waters of
the state.
"Direct injection" means the discharge of
reclaimed water directly into groundwater.
"Direct potable reuse" means the discharge of
reclaimed water directly into a drinking water treatment facility or into a
drinking water distribution system. This includes storage facilities associated
with the drinking water treatment facility or drinking water distribution
system that are not surface or ground waters of the state.
"Director" means the Director of the Department of
Environmental Quality or an authorized representative.
"Disinfection" means the destruction, inactivation,
or removal of pathogenic microorganisms by chemical, physical, or biological
means. Disinfection may be accomplished by chlorination, ozonation, or other
chemical disinfectants; UV radiation; or other processes.
"Disposal" means the discharge of effluent to
injection wells, effluent outfalls, subsurface drain fields, or other
facilities utilized primarily for the release of effluents into the environment
without deriving a direct beneficial use.
"Domestic sewage" means sewage derived from the
normal family or household activities, including drinking, laundering, bathing,
cooking, heating, cleaning and flushing toilets.
"Drip irrigation" means the slow and uniform
aboveground application of water to individual plants and vegetated cover using
tubing and drip devices or emitters. Drip irrigation may include below-ground
applications of reclaimed water as specified in 9VAC25-740-90 B.
"Effluent," unless specifically stated otherwise,
means treated wastewater that is not reused after flowing out of any treatment
works.
"End user" means a person or entity that directly
uses reclaimed water.
"Filtration" means the passing of wastewater through
a conventional technology, such as sand, anthracite or cloth; or an advanced
technology, such as microfiltration, ultrafiltration, nanofiltration or reverse
osmosis membrane.
"Food crops commercially processed" means food
crops that, prior to sale to the public or others, have undergone chemical or
physical processing sufficient to remove or destroy pathogens.
"Food crops not commercially processed" means food
crops that, prior to sale to the public or others, have not undergone chemical
or physical processing sufficient to remove or destroy pathogens.
"Gray water" means untreated wastewater from
bathtubs, showers, lavatory fixtures, wash basins, washing machines, and
laundry tubs. It does not include wastewater from toilets, urinals, kitchen
sinks, dishwashers, or laundry water from soiled diapers.
"Ground water" "Groundwater"
means any water, except capillary moisture, beneath the land surface in the
zone of saturation or beneath the bed of any stream, lake, reservoir or other
body of surface water wholly or partially within the boundaries of this
Commonwealth, whatever the subsurface geologic structure in which such water
stands, flows, percolates or otherwise occurs.
"Harvested rainwater" means rainwater that has
been collected off of a rooftop through a system that concentrates the rooftop
flow and conveys this to a storage device, container, or vessel with the
intention of using this water before discharge to waterways via sanitary sewer
systems, septic tank or other onsite treatment and disposal systems, or a land
based discharge.
"Indirect nonpotable reuse" means the discharge
of reclaimed water to a receiving surface water for the purpose of
intentionally augmenting a water source, followed by withdrawal from the water
source with or without mixing and transport to the withdrawal location, for
reuse or distribution for reuse other than indirect potable reuse.
"Indirect potable reuse" or "IPR"
means the discharge of reclaimed water to a receiving surface water for the
purpose of intentionally augmenting a water supply source, with subsequent
withdrawal after mixing with the ambient surface water and transport to the
withdrawal location, followed by treatment and distribution for drinking water
and other potable water purposes.
"Indirect reuse" means the use of reclaimed
water subsequent to discharge to surface waters of the state, including
wetlands, pursuant to a VPDES permit.
"Industrial wastewater" means wastewater resulting
from any process of industry, manufacture, trade or business, or from the development
of any natural resources.
"Irrigation" means the application of water to land
for plant use at a rate that undesirable plant water stress does not occur.
"Landscape impoundment" means a body of water that
contains reclaimed water, is not intended for public contact, and is used
primarily for aesthetic enjoyment. Landscape impoundments include, but are not
limited to, decorative pools, fountains, ponds and lagoons; located outdoors or
indoors.
"Level 1" means a degree of treatment at which
reclaimed water has received, at a minimum, secondary treatment with filtration
and higher-level disinfection, and meets all other applicable standards
specified in 9VAC25-740-70.
"Level 2" means a degree of treatment at which
reclaimed water has received, at a minimum, secondary treatment and standard
disinfection, and meets all other applicable standards specified in
9VAC25-740-70.
"Municipal wastewater" means sewage.
"Nonbulk irrigation reuse" means the reuse of
reclaimed water for irrigation of individual areas less than or equal to five
acres.
"Nonpotable water" means any water, including
reclaimed water, not meeting the definition of potable water.
"Nonsystem storage" means storage for reclaimed
water that is other than system storage and is used at a location downstream of
the service connection to the reclaimed water distribution system to equalize
flow to end users.
"Nutrient management plan (NMP)" "Nutrient
management plan" or "NMP" means a plan prepared by a
nutrient management planner certified by the Department of Conservation and
Recreation to manage the amount, placement, timing, and application of plant
nutrients from liquid, solid or semisolid manures, fertilizers, biosolids, or
other materials, for the purpose of producing crops and reducing nutrient loss
to the environment.
"Owner" means the Commonwealth or any of its
political subdivisions including, but not limited to, sanitation district
commissions and authorities, and any public or private institution,
corporation, association, firm or company organized or existing under the laws
of this or any other state or country, or any officer or agency of the United
States, or any person or group of persons acting individually or as a group
that owns, operates, charters, rents, or otherwise exercises control over or is
responsible for the production or distribution of reclaimed water, or any
facility or operation that produces or distributes reclaimed water.
"Permit" means an authorization, certificate,
license, or equivalent control document issued by the board to implement the
requirements of this chapter.
"Point of compliance" or "POC"
means a point at which compliance with the standards of this chapter is
required.
"Pollutants of concern" means any pollutants that
might reasonably be expected to be discharged to a publicly or privately owned
treatment works in sufficient amounts to pass through or interfere with the
works, contaminate sludge generated by the works, cause problems in the
collection system of the works, or jeopardize the health of employees at the
works and the public.
"Potable water" means water fit for human
consumption and domestic use that is sanitary and normally free of minerals,
organic substances, and toxic agents in excess of reasonable amounts for
domestic usage in the area served and normally adequate in quantity and quality
for the minimum health requirements of the persons served.
"Public access area" means an area that is intended
to be accessible to the general public, such as golf courses, cemeteries,
parks, athletic fields, school yards, and landscape areas. Public access areas
include private property that is not open to the public at large, but is
intended for frequent use by many persons. Presence of authorized farm
personnel or other authorized treatment plant, utilities system, or reuse
system personnel does not constitute public access.
"Reclamation" means the treatment of domestic,
municipal or industrial wastewater or sewage to produce reclaimed water for a
water reuse that would not otherwise occur.
"Reclamation system" means a treatment works
that treats domestic, municipal or industrial wastewater or sewage to produce
reclaimed water for a water reuse that would not otherwise occur.
"Reclaimed water" means water resulting from the
treatment of domestic, municipal or industrial wastewater that is suitable for
a water reuse that would not otherwise occur. Specifically excluded from this
definition is "gray water." For the purposes of this chapter,
"harvested rainwater" and "stormwater" are also excluded
from this definition.
"Reclaimed water agent" means a person or entity
that holds a permit to distribute reclaimed water to one or more end users.
"Reclaimed water distribution system" means a network
of pipes, pumping facilities, storage facilities, and appurtenances designed to
convey and distribute reclaimed water from one or more reclamation systems to
one or more end users.
"Reclamation" means the treatment of domestic,
municipal, or industrial wastewater or sewage to produce reclaimed water for a
water reuse that would not otherwise occur.
"Reclamation system" means a treatment works
that treats domestic, municipal, or industrial wastewater or sewage to produce
reclaimed water for a water reuse that would not otherwise occur.
"Reject water storage" means storage for water
diverted by a reclamation system or satellite reclamation system that does not
meet applicable reclaimed water standards.
"Reliability Class I" means a measure of
reliability that requires a treatment works design to provide continuous
satisfactory operation during power failures, flooding, peak loads, equipment
failure, and maintenance shut-down. This class includes design features, such
as additional electrical power sources, additional flow storage capacity, and
additional treatment units that provide operation in accordance with the issued
certificate or permit requirements. The definition of Reliability Class I
contained in this chapter is in addition to but does not supersede the
definition of Reliability Class I contained in the Sewage Collection and
Treatment Regulations (9VAC25-790).
"Reuse" or "water reuse" means the use of
reclaimed water for a direct beneficial use, an indirect potable reuse, an
indirect nonpotable reuse, or a controlled use in accordance with this
chapter.
"Reuse system" means an installation or method of
operation that uses reclaimed water for a water reuse in accordance with this
chapter.
"Restricted access" means limited access by humans
to areas where, nonpotable water, including reclaimed water, is used, resulting
in minimal or no potential for human contact.
"Satellite reclamation system" or
"SRS" means a conjunctive wastewater treatment works and
reclamation system that operates within or parallel to a sewage collection
system to treat a portion of the available wastewater flow in the collection
system to produce reclaimed water for reuse. Satellite reclamation systems do
not have a discharge to surface waters, but may return their treatment process
wastewater and residuals to the sewage collection system.
"Secondary treatment" means a biological treatment
process for wastewater that achieves the minimum level of effluent quality
defined by the federal secondary treatment regulation in 40 CFR § 133.102
(2001).
"Service area" means a geographic area that
receives reclaimed water from a reclaimed water distribution system or directly
from a reclamation system for approved reuses within that area.
"Sewage" means the water-carried human wastes and
nonwater-carried human excrement, kitchen, laundry, shower, bath or lavatory
wastes, separately or together with such underground, surface, storm and other
water and liquid industrial wastes as may be present from residences,
buildings, vehicles, industrial establishments or other places.
"Significant industrial user" or "SIU"
shall have the meaning set forth in the VPDES Permit Regulation (9VAC25-31-10).
"Source water" means untreated or partially
treated wastewater supplied for reclamation.
"State waters" or "waters of the state"
means all water, on the surface and under the ground, wholly or partially
within or bordering the Commonwealth or within its jurisdiction, including
wetlands.
"State Water Control Law or Law" means Chapter 3.1
(§ 62.1-44.2 et seq.) of Title 62.1 of the Code of Virginia.
"Stormwater" means precipitation that is
discharged across the land surface or through conveyances to one or more
waterways and that may include stormwater runoff, snow melt runoff, and surface
runoff and drainage.
"Supplemental irrigation" means irrigation, which
in combination with rainfall, meets but does not exceed the water necessary to
maximize production or optimize growth of the irrigated vegetation.
"Surface waters" means all waters in the
Commonwealth, except ground water groundwater as defined in § 62.1-255
of the Code of Virginia.
"System storage" means storage on or off the site
and considered part of a reclamation system, satellite reclamation system
SRS, or reclaimed water distribution system that is used to store
reclaimed water produced by the reclamation system or satellite reclamation
system SRS and to equalize flow to or within a reclaimed water
distribution system.
"Total maximum daily load" or "TMDL"
shall have the meaning set forth in the Water Quality Planning Regulation
(9VAC25-720).
"Treatment works" means any devices and systems
used for the storage, treatment, recycling or reclamation of sewage or liquid
industrial waste, or other waste, or that are necessary to recycle or reuse
water, including intercepting sewers, outfall sewers, sewage collection
systems, individual systems, pumping, power and other equipment and their
appurtenances, extensions, improvements, remodeling, additions, or alterations
thereof; or any works, including land that will be an integral part of the
treatment process or is used for ultimate disposal of residues resulting from
such treatment; or any other method or system used for preventing, abating,
reducing, storing, treating, separating, or disposing of municipal waste or
industrial waste, including waste in combined sewer water and sanitary sewer
systems.
"Underground aquifer" means an aquifer or
portion of an aquifer that supplies any public water system or that contains a
sufficient quantity of groundwater to supply a public water system, and
currently supplies drinking water for human consumption, or that contains fewer
than 10,000 mg/l total dissolved solids and is not an exempted aquifer.
"Unintentional reuse" means the unintentional or
unplanned use of reclaimed water subsequent to discharge to surface waters of
the state, including wetlands, pursuant to a VPDES permit.
"Unrestricted access" means unlimited or minimally
limited access by humans to areas where nonpotable water, including reclaimed
water, is used, resulting in a high potential for human contact.
"User" means end user.
"Virginia Pollution Abatement (VPA) Permit" "Virginia
Pollution Abatement Permit" or "VPA Permit" means a document
issued by the board, pursuant to the Virginia Pollution Abatement Permit
Regulation (9VAC25-32), authorizing pollutant management activities under
prescribed conditions.
"Virginia Pollutant Discharge Elimination System
(VPDES) Permit" "Virginia Pollutant Discharge Elimination
System Permit" or "VPDES Permit" means a document issued by
the board, pursuant to the Virginia Pollutant Discharge Elimination System
Permit Regulation (9VAC25-31), authorizing, under prescribed conditions the
potential or actual discharge of pollutants from a point source to surface
waters and the use or disposal of sewage sludge. Under the approved state
program, a VPDES permit is equivalent to an NPDES permit.
"Wastewater" means untreated liquid and water
carried water-carried industrial wastes and domestic sewage from
residential dwellings, commercial buildings, industrial and manufacturing
facilities and institutions.
"Water reclamation" means the reclamation of
wastewater or treated effluent for reuse.
"Waterworks" means a system that serves piped
water for drinking or domestic use to (i) the public, (ii) at least 15
connections, or (iii) an average of 25 individuals for at least 60 days out of
the year. The term "waterworks" shall include all structures,
equipment, and appurtenances used in the storage, collection, purification,
treatment, and distribution of pure water, except the piping and fixtures
inside the building where such water is delivered.
9VAC25-740-30. Applicability and transition.
A. The requirements of this chapter shall apply to water
reclamation systems, reclaimed water distribution systems, and water reuse
unless specifically excluded under 9VAC25-740-50 A. The requirements shall
apply to all new water reclamation systems, reclaimed water distribution
systems and, as applicable, water reuses for which Virginia Pollution Abatement
(VPA) or Virginia Pollutant Discharge Elimination System (VPDES) permit
applications are received after October 1, 2008. The requirements may also be
applied to all existing permitted facilities producing, distributing or using
reclaimed water through a permit modification or reissuance procedure and shall
be applied when such facilities are to be modified or expanded unless
specifically excluded under 9VAC25-740-50 A. The owners of existing water reclamation
systems, reclaimed water distribution systems and, as applicable, water reuses
that do not have a VPA or VPDES permit shall submit a complete VPA or VPDES
permit application or other necessary information as prescribed under
9VAC25-740-40 within 180 days of being requested by the board.
B. For the purposes of this chapter:
1. The incorporation of standards, monitoring requirements and
special conditions for water reclamation and reuse into a VPA permit shall be
considered a minor modification unless they alter other conditions of the
permit specifically related to the pollutant management activity for which the
permit was originally issued.
2. Standards, monitoring requirements and special conditions
for water reclamation and reuse may be administratively authorized for a VPDES
permit without a permit modification unless they effectively alter other
conditions of the permit specifically related to the effluent discharge for
which the permit was originally issued. The administrative authorization shall
have the full effect of the VPDES permit until such time that it is
incorporated into the VPDES permit through reissuance or major modification.
3. Minor modification Modification of a VPA or
VPDES permit or the issuance of an administrative authorization
associated with a VPDES permit described in subdivisions 1 and 2 of this
subsection shall require an application for a water reclamation and reuse
project in accordance with 9VAC25-740-100.
9VAC25-740-40. Permitting requirements.
A. The owner of the reclamation system and the owner of the
reclaimed water distribution system or the reclaimed water agent shall obtain a
VPDES or VPA permit to produce and distribute reclaimed water, unless otherwise
excluded from the requirements of this chapter under 9VAC25-740-50 A. Where
both the reclamation system and the reclaimed water distribution system are
under common ownership and management, one permit may be issued to the owner.
Permit coverage may be provided through modification or reissuance of an
existing VPA permit, or reissuance of or administrative authorization for an
existing VPDES permit to include standards, monitoring requirements and special
conditions that address water reclamation and reuse.
B. The owner of a satellite reclamation system (SRS)
shall obtain a VPA permit. Alternatively and at the discretion of the board, a satellite
reclamation system SRS may be authorized under a VPA or VPDES permit
issued to a wastewater treatment works that is under common ownership or
management with the satellite reclamation system SRS and receives
wastewater and residuals discharged by the satellite reclamation system SRS.
C. Each end user shall enter into a service agreement or
contract with all reclaimed water agents from which the end user receives
reclaimed water prior to receipt of such water. Monitoring and management
of individual end users of reclaimed water shall be by the permittee
reclaimed water agents with whom the end users have a service
connection, and through the service agreements or contracts between the permittee
reclaimed water agents and the individual end users unless affected
by a permit issued to an end user as described in subsection F of this section.
D. Where a reclamation system and a reclaimed water
distribution system that receives reclaimed water from the reclamation system
are under separate ownership and management, and the reclaimed water
distribution system does not distribute reclaimed water to end users other than
to the owner or management of that system, the reclaimed water distribution
system shall may not require a permit provided a service
agreement or contract is established between the reclamation system and
the reclaimed water distribution system.
E. A separate permit may be required for end users receiving
reclaimed water directly from more than one reclamation system, satellite
reclamation system SRS, reclaimed water distribution system, or a
combination thereof. An end user may be authorized under the permit issued to
one of the reclamation systems, satellite reclamation systems SRSs,
or reclaimed water distribution systems that supply reclaimed water to the end
user, provided the end user is under common ownership or management with the
permitted system.
F. Property irrigated with reclaimed water from a reclamation
system, satellite reclamation system SRS, or reclaimed water
distribution system under common ownership or management with that property,
shall be regulated by the permit issued to the reclamation system, satellite
reclamation system SRS, or reclaimed water distribution system
providing reclaimed water to the irrigated property.
G. A reclamation system shall not discharge reclaimed or
reject water to surface waters of the state in lieu of providing storage,
discharging to another permitted reuse system, if applicable; returning
reclaimed or reject water to a wastewater treatment works; or suspending
production of reclaimed water; without authorization to discharge under a VPDES
Permit.
9VAC25-740-45. Emergency authorization for the production,
distribution, or reuse of reclaimed water.
A. The board may issue an emergency authorization for the
production, distribution, or reuse of reclaimed water when it finds that due to
drought there is an insufficient public water supply that may result in a
substantial threat to public safety. The emergency authorization may be issued
only after:
1. Conservation measures mandated by local or state
authorities have failed to protect public safety, and
2. The Virginia Department of Health has been notified of
the application to issue an emergency authorization and has been provided not
less than 14 days to submit comments or recommendations to the board on the
application.
B. An emergency authorization may be issued in addition to
an Emergency Virginia Water Protection Permit (9VAC25-210) for a new or
increased public water supply withdrawal.
C. An emergency authorization may be issued to only
existing VPDES or VPA permitted municipal treatment works that:
1. Are not currently authorized to produce, distribute, or
reuse reclaimed water in accordance with 9VAC25-740-40;
2. Are currently capable of producing reclaimed water
meeting minimum standard requirements of 9VAC25-740-90 for proposed reuses
listed in the application for an emergency authorization; and
3. Do not have significant industrial users (SIUs), or do
have SIUs and a pretreatment program developed, approved, and maintained in
accordance with Part VII (9VAC25-31-730 through 9VAC25-31-900) of the VPDES
Permit Regulation.
D. An emergency authorization may be issued for only
reuses of reclaimed water deemed necessary by the board. In no case shall an
emergency authorization be issued in lieu of a VPDES permit action for a reuse
that involves a discharge of reclaimed water to surface waters.
E. An application for an emergency authorization issued
pursuant to this section shall provide the information specified in
9VAC25-740-105. No later than 180 days after the issuance of an emergency
authorization, the holder of the authorization shall apply for coverage under a
VPDES or VPA permit in accordance with 9VAC25-740-40. Thereafter, the emergency
authorization shall remain in effect until the board acts upon the application
for the VPDES or VPA permit in accordance with 9VAC25-740-30 B.
F. There shall be no public comment period for the
issuance of an emergency authorization.
9VAC25-740-50. Exclusions and prohibitions.
A. Exclusions. Exclusion from the requirements of this
chapter does not relieve any owner of the operations identified in this section
of the responsibility to comply with any other applicable federal, state, or
local statutes, regulations, or ordinances. The following are excluded from
the requirements of this chapter:
1. Activities permitted by the Virginia Department of Health (VDH),
such as, but not limited to, septic tank drainfield systems and other on-site
sewage treatment and disposal systems, and water treatment plant recycle flows.
This exclusion does not apply to alternative onsite sewage systems as
defined in 12VAC5-613 (Regulations for Alternative Onsite Sewage Systems) with
an average daily sewage flow in excess of 1,000 gallons per day that are
concurrently permitted by the board and VDH to allow sewage reclamation and
reuse in addition to onsite sewage treatment and disposal.
2. Utilization of gray water, harvested rainwater, or
stormwater.
3. Nonpotable water produced and utilized on-site by the same
treatment works for facilities permitted through a VPDES or VPA permit. This
includes the use of nonpotable water at the treatment works site for incidental
landscape irrigation that is not identified as land treatment defined in the
Sewage Collection and Treatment Regulations (9VAC25-790). The treatment works
site shall include property that is either contiguous to or in the immediate
vicinity of the parcel of land upon which the treatment works is located,
provided such property is under common ownership or management with the
treatment works. This exclusion does not apply to nonpotable water produced by
treatment works authorized by the VPDES General Permit for Domestic Sewage
Discharges Less Than or Equal to 1,000 Gallons Per Day (9VAC25-110).
4. Recycle flows within a treatment works.
5. Industrial effluents or other industrial water streams
created prior to final treatment and used for water re-circulation, recycle, or
reuse systems located on the same property as the industrial facility,
provided:
a. The water used in these systems does not contain or is not
expected to contain pathogens or other constituents in sufficient quantities
and with a potential for human contact as may be harmful to human health;
b. These systems are closed or isolated to prevent worker
contact with the water of the systems; or
c. Other measures are in place, including but not limited to,
applicable federal and state occupational safety and health standards and
requirements, to adequately inform and protect employees from pathogens or
other constituents that may be harmful to human health in the water to be
re-circulated, recycled or reused at the facility.
6. Land treatment systems defined in the Sewage Collection and
Treatment Regulations (9VAC25-790). Such use of wastewater effluent, either
existing or proposed, must be authorized by a VPA or VPDES permit and must be
on land owned or under the direct long-term control of the permittee.
7. Indirect Unintentional reuse with the
exception of indirect potable reuse projects proposed after October 1, 2008 and
indirect nonpotable reuse projects proposed after (effective date of amended
regulation).
8. Existing indirect potable reuse projects that upon October
1, 2008, are authorized by a VPDES permit to discharge to surface waters of the
state, and future expansions of these projects.
9. Direct injection of reclaimed water into any underground
aquifer authorized by EPA under the Safe Drinking Water Act, Underground
Injection Control Program (UIC), 40 CFR Part 144; or other applicable federal
and state laws and regulations.
Exclusion from the requirements of this chapter does not
relieve any owner of the above operations of the responsibility to comply with
any other applicable federal, state or local statute, ordinance or regulations.
B. Prohibitions. The following are prohibited under this
chapter:
1. Direct potable reuse;
2. The reuse of reclaimed water for any purpose inside a
residential or domestic dwelling or a building containing a residential or
domestic unit distributed to one or two family dwellings. This
prohibition does not apply to reuses of reclaimed water outside of and on the
same property as one or two family dwellings where the reclaimed water is not
distributed to such reuses by way of plumbing within the dwellings;
3. The reuse of reclaimed water to fill residential swimming
pools, hot tubs or wading pools;
4. The reuse of reclaimed water for food preparation or
incorporation as an ingredient into food or beverage for human consumption;
5. Bypass of untreated or partially treated wastewater from
the reclamation system or any intermediate unit process to the point of reuse
unless the bypass complies with standards and requirements specified in
9VAC25-740-70 and is for essential maintenance to assure efficient operation; and
6. The return of reclaimed water to the reclaimed water
distribution system after the reclaimed water has been delivered to an end user.;
and
7. Reduction of the discharge from a VPDES permitted
treatment works due to diversion of source water flow for reclamation and reuse
such that the physical, chemical, or biological properties of the receiving
state waters are affected in a manner that would cause a significant adverse
impact to other beneficial uses.
9VAC25-740-55. Variances.
A. The board may grant a variance to this chapter for
design, construction, operation, or maintenance requirements contained in the
chapter by following the appropriate procedures set forth in this section.
B. Any person or entity wishing to initiate a project for
the production, distribution, or reuse of reclaimed water that is not excluded
from the provisions of this chapter by 9VAC25-740-50 may apply for a variance
to the design, construction, operation, or maintenance requirements of this
chapter where requiring the project to comply with such requirements would be
contrary to the purpose of State Water Control Law, specifically § 62.1-44.2 of
the Code of Virginia. The board may grant a variance if it finds that the
hardship imposed, which may be economic, outweighs the benefits of the project
and that the granting of such variance would not adversely impact public health
or the environment.
C. An application for a variance shall be made in writing
and shall include the following:
1. A citation of the regulation from which a variance is
requested;
2. The nature and duration of variance requested;
3. A statement of the hardship to the applicant and the
anticipated impacts to public health and welfare or the environment if a
variance were granted;
4. Suggested conditions that might be imposed on the
granting of a variance that would limit any anticipated detrimental impacts on
public health or the environment;
5. Other information, if any, believed to be pertinent by
the applicant; and
6. Such other information as may be required to make the
determination in accordance with subsection B of this section.
D. The board shall act on any application for a variance
submitted pursuant to this section within 60 days of application receipt. In
the board's decision to grant or deny a variance for a project to produce,
distribute, or reuse reclaimed water, the board shall consider, at a minimum,
the following:
1. The effect that such a variance would have on the
adequate operation of the project, including operator safety (in accordance
with the requirements of the Virginia Department of Labor and Industry,
Occupation Safety and Health Administration);
2. The cost and other economic considerations imposed by
the regulatory requirement for which the variance has been requested; and
3. The effect that such a variance would have on the
protection of public health or the environment.
E. Disposition of a variance request.
1. If the board proposes to deny a variance request
submitted pursuant to this section, the board shall provide the applicant an
opportunity to an informal fact-finding proceeding in accordance with §
2.2-4019 of the Code of Virginia. Thereafter, the board may reject any
application for a variance and shall notify the applicant in writing of this
decision and the basis for the rejection. The board's notice, in this case,
constitutes a case decision.
2. If the board proposes to grant a variance request
submitted pursuant to this section, the applicant shall be notified in writing
of this decision. Such notice shall:
a. Identify the project for which the variance has been
granted;
b. Describe the variance;
c. Specify the period of time for which the variance will
be effective; and
d. State that the variance shall be terminated when the
project comes into compliance with the applicable design, construction,
operation, or maintenance requirements of this chapter and may be terminated
upon a finding by the board that the project has failed to comply with any
requirements or schedules issued in conjunction with the variance.
3. The effective date of a variance described in
subdivision 2 of this subsection shall be 15 days following the date of notice
to the applicant.
F. All variances granted for the design, construction,
operation, or maintenance of a project to produce, distribute, or reuse
reclaimed water are nontransferable. Any requirements of the variance shall
become part of the permit for the project subsequently issued, reissued, or
modified by the board.
G. Where this chapter references the Sewage Collection and
Treatment Regulations (9VAC25-790) for design, construction, operation, or
maintenance requirements affecting components of a project to produce,
distribute, or reuse reclaimed water, an application for a variance to such
requirements shall be in accordance with variance procedures described in
9VAC25-790.
9VAC25-740-60. Relationship to other board regulations.
A. Virginia Pollution Abatement (VPA) Permit Regulation
(9VAC25-32). The VPA Permit Regulation delineates the procedures and
requirements to be followed in connection with the VPA permits issued by the
board pursuant to the State Water Control Law. While any Any
treatment works treating domestic, municipal or industrial wastewater that
produces reclaimed water or a facility that distributes reclaimed water in a
manner that does not result in a discharge to surface waters is required to
shall obtain a VPA permit, this chapter prescribes design,.
Design, operation, and maintenance standards prescribed by this
chapter for water reclamation and water reuse. These requirements
shall be incorporated into the VPA permit application and the VPA permit when
applicable. Water reclamation and reuse requirements contained in a VPA permit
shall be enforced through existing enforcement mechanisms of the VPA
permit.
B. Virginia Pollutant Discharge Elimination System (VPDES)
Permit Regulation (9VAC25-31). The VPDES Permit Regulation delineates the
procedures and requirements to be followed in connection with VPDES permits
issued by the board pursuant to the Clean Water Act and the State Water Control
Law. While any Any treatment works treating domestic, municipal,
or industrial wastewater that produces reclaimed water and has a discharge
to a surface or a facility that distributes reclaimed water in a
manner that results in distribution system that has a discharge to
surface waters is required to shall obtain a VPDES permit,
this chapter prescribes design,. Design, operation, and
maintenance standards for water reclamation and reuse. These requirements
shall be incorporated into the VPDES permit application and the VPDES permit
when applicable. Water reclamation and reuse requirements contained in a VPDES
permit shall be enforced through existing enforcement mechanisms of the VPDES
permit.
C. Sewage Collection and Treatment Regulations (9VAC25-790).
The Sewage Collection and Treatment Regulations establish standards for the
operation, construction, or modification of a sewerage system or treatment
works, including land treatment systems. This chapter prescribes design,
operation and maintenance standards for water reclamation and reuse.
D. Regulation for Nutrient Enriched Waters and Discharges
within the Chesapeake Bay Watershed (9VAC25-40). Sections 62.1-44.19:12 through
62.1-44.19:19 of the Code of Virginia, which establishes the Regulation for
Nutrient Enriched Waters and Discharges within the Chesapeake Bay Watershed
(9VAC25-40), allows for credit to be given for reductions in total nitrogen and
total phosphorus discharged loads through recycle or reuse of wastewater when
determining technology requirements associated with new or expanded discharges.
E. General VPDES Watershed Permit Regulation for Total
Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake
Bay Watershed in Virginia (9VAC25-820). The General VPDES Watershed Permit
Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading
in the Chesapeake Bay Watershed in Virginia regulates point sources of
nutrients and establishes a framework for nutrient credit trading and offsets.
Water reclamation and reuse provides an opportunity to reduce point source
nutrient loads.
F. Local and Regional Water Supply Planning Regulation
(9VAC25-780). The Local and Regional Water Supply Planning Regulation requires
every county, city, and town to develop a water plan in accordance with
established planning criteria. Where appropriate, the plan may consider
nontraditional means of increasing supplies such as interconnection,
desalination, recycling and reuse.
G. Water Withdrawal Reporting Regulation (9VAC25-200). The
Water Withdrawal Reporting Regulation requires industrial VPDES permittees to
annually report to the board the source and location of water withdrawals and
the type of use information specified by 9VAC25-200. Where the VPDES permitted
discharge volume deviates by greater than ± 10% of the water withdrawal volume,
the permittee is required to report the deviation.
Part II
Reclaimed Water Treatment, Standards, Monitoring Requirements and Reuses
9VAC25-740-70. Standards Treatment and standards
for reclaimed water.
A. Standards Treatment and standards for
reclaimed water are as follows: provided in Table 70-A.
1. Level 1:
a. Secondary treatment with filtration and higher-level
disinfection.
b. Bacterial standards:
(1) Fecal coliform*: monthly geometric mean** less than or
equal to 14 colonies/100 ml; corrective action threshold at greater than 49
colonies/100 ml; or
(2) E. coli*: monthly geometric mean** less than or equal
to 11 colonies/100 ml; corrective action threshold at greater than 35
colonies/100 ml; or
(3) Enterococci*: monthly geometric mean** less than or
equal to 11 colonies/100 ml; corrective action threshold at greater than 24
colonies/100 ml.
c. Total Residual Chlorine (TRC)***: corrective action
threshold at less than 1.0 mg/l**** after a minimum contact time of 30 minutes
at average flow or 20 minutes at peak flow
d. pH 6.0-9.0 standard units.
e. Five-day Biochemical Oxygen Demand (BOD5):
monthly average less than or equal to 10 mg/l; or Carbonaceous Biochemical
Oxygen Demand CBOD5*****: monthly average less than or equal to 8
mg/l.
f. Turbidity: Daily average of discrete measurements
recorded over a 24-hour period less than or equal to 2 nephelometric turbidity
units (NTU); corrective action threshold at greater than 5 NTU.
2. Level 2:
a. Secondary treatment and standard disinfection.
b. Bacterial standards:
(1) Fecal coliform*: monthly geometric mean** less than or
equal to 200 colonies/100ml; corrective action threshold at greater than 800
colonies/100 ml; or
(2) E. coli*: monthly geometric mean** less than or equal
to 126 colonies/100ml; corrective action threshold at greater than 235
colonies/100 ml; or
(3) Enterococci*: monthly geometric mean** less than or
equal to 35 colonies/100ml; corrective action threshold at greater than 104
colonies/100 ml.
c. Total Residual Chlorine (TRC)***: corrective action
threshold at less than 1.0 mg/l**** after a minimum contact time of 30 minutes
at average flow or 20 minutes at peak flow.
d. pH 6.0-9.0 standard units.
e. BOD5: monthly average less than or equal to
30 mg/l; maximum weekly average 45 mg/l; or CBOD5*****: monthly average
less than or equal to 25 mg/l; maximum weekly average 40 mg/l.
f. TSS: monthly average less than or equal to 30 mg/l;
maximum weekly average 45 mg/l.
* After disinfection.
** For the purpose of calculating the geometric mean,
bacterial analytical results below the detection level of the analytical method
used shall be reported as values equal to the detection level.
*** Applies only if chlorine is used for disinfection.
**** TRC less than 1.0 mg/l may be authorized by the board
if demonstrated to provide comparable disinfection through a chlorine reduction
program in accordance with the Sewage Collection and Treatment Regulations
(9VAC25-790).
***** Applies only if CBOD5 is used in lieu of
BOD5.
|
Table 70-A
Treatment and Standards for
Reclaimed Water
|
|
|
|
1. Level 1
|
2. Level 2
|
|
|
a. Treatment
|
Secondary treatment with
filtration and higher-level disinfection.
|
Secondary treatment and
standard disinfection.
|
|
|
b. Bacterial standards
|
(1) Fecal coliform1:
monthly geometric mean2 less than or equal to 14 colonies/100ml;
corrective action threshold at greater than 49 colonies/100 ml; or
|
(1) Fecal coliform1:
monthly geometric mean2 less than or equal to 200 colonies/100ml;
corrective action threshold at greater than 800 colonies/100 ml; or
|
|
|
(2) E. coli1:
monthly geometric mean2 less than or equal to 11 colonies/100 ml;
corrective action threshold at greater than 35 colonies/100 ml; or
|
(2) E. coli1:
monthly geometric mean2 less than or equal to 126 colonies/100 ml;
corrective action threshold at greater than 235 colonies/100 ml; or
|
|
|
(3) Enterococci1:
monthly geometric mean2 less than or equal to 11 colonies/100 ml;
corrective action threshold at greater than 24 colonies/100 ml.
|
(3) Enterococci1:
monthly geometric mean2 less than or equal to 35 colonies/100 ml;
corrective action threshold at greater than 104 colonies/100 ml.
|
|
|
c. Total Residual
Chlorine(TRC)3
|
Corrective action threshold
at less than 1.0 mg/l4 after a minimum contact time of 30 minutes
at average flow or 20 minutes at peak flow.
|
Corrective action threshold
at less than 1.0 mg/l4 after a minimum contact time of 30 minutes
at average flow or 20 minutes at peak flow.
|
|
|
d. pH
|
6.0 – 9.0 standard units
|
6.0 – 9.0 standard units
|
|
|
e. Five-day Biochemical
Oxygen Demand (BOD5)
|
(1) BOD5:
Monthly average less than or equal to 10 mg/l; or
(2) Carbonaceous
Biochemical Oxygen Demand (CBOD5)5: monthly average
less than or equal to 8 mg/l.
|
(1) BOD5:
Monthly average less than or equal to 30 mg/l; maximum weekly average 45
mg/l; or
(2) Carbonaceous
Biochemical Oxygen Demand (CBOD5)5: monthly average
less than or equal to 25 mg/l; maximum weekly average 40 mg/l.
|
|
|
f. Turbidity6
|
Daily average of discrete
measurements recorded over a 24-hour period less than or equal to 2
nephelometric turbidity units (NTU); corrective action threshold at greater
than 5 NTU.
|
|
|
|
f. Total Suspended Solids
(TSS)
|
|
Monthly average less than
or equal to 30 mg/l; maximum weekly average 45 mg/l.
|
|
|
1After disinfection.
2For the purpose of calculating the geometric mean,
bacterial analytical results below the detection level of the analytical
method used shall be reported as values equal to the detection level.
3Applies only if chlorine is used for disinfection.
4TRC less than 1.0 mg/l may be authorized by the board
if demonstrated to provide comparable disinfection through a chlorine
reduction program in accordance with the Sewage Collection and Treatment
Regulations (9VAC25-790).
5Applies only if CBOD5 is used in lieu of
BOD5.
6Where ultraviolet radiation will be used for
disinfection of Level 1 reclaimed water, other turbidity standards may apply
in accordance with 9VAC25-740-110 A 2 a.
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|
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B. Point of compliance (POC).
Excluding the turbidity standard for Level 1 treatment,
reclaimed 1. Reclaimed water produced by reclamation systems and
SRSs for reuse shall meet all other applicable standards in
accordance with this chapter, excluding the turbidity standard for Level 1
treatment, at the point of compliance POC. The point of
compliance POC for Level 1 and Level 2 treatment shall be after all
reclaimed water treatment and prior to discharge to a reclaimed water
distribution system. Where chlorination is used for disinfection of the
reclaimed water, the POC for the TRC standard shall be the monitoring location
specified in 9VAC25-740-80 A 2. The point of compliance POC
for the turbidity standard of Level 1 treatment shall be just upstream of
disinfection.
2. Where the board determines that reclaimed water
monitoring is required for a system storage facility or a reclaimed water
distribution system, the number and location of POCs for these facilities shall
be determined on a case-by-case basis and shall be described in the following documents
for approval by the board:
a. For system storage facilities other than those
considered part of reclaimed water distribution systems, in the operations and
maintenance manual of the reclamation system or SRS where the storage facility
is located;
b. For reclaimed water distribution systems, including
system storage facilities considered part of these systems, in the Reclaimed
Water Management plan pursuant to 9VAC25-740-100 C 1 h;
c. For both the system storage facility and reclaimed water
distribution system when under common ownership or management and within the
same service area, in either document described in subdivision 2 a or b of this
subsection.
C. Reclaimed water that fails to comply with the standards
shall be managed as follows:
1. Should reclaimed water reach the corrective action
threshold (CAT) for turbidity in the standard for Level 1, or for TRC in the
standards for Level 1 or 2, whichever applies, the operator of the reclamation
system shall immediately initiate a review of treatment operations and data to
identify the cause of the CAT monitoring results to bring the reclaimed water
back into compliance with the standards. Resampling or diversion shall occur
within one hour of first reaching the CAT. Procedures for resampling, operational
review and diversion shall be as described in an approved operations and
maintenance manual for the reclamation system. If subsequent monitoring results
of the resamples collected within one hour of the first CAT monitoring results
for turbidity or TRC continue to reach the CAT of the standards, the reclaimed
water shall be considered substandard or reject water and shall be diverted to
either storage for subsequent additional treatment or retreatment, or
discharged to another permitted reuse system requiring a lower level of
treatment not less than Level 2 or to a VPDES permitted effluent disposal
system provided the reject water meets the effluent limits of the permit. If
the reclamation system is unattended, the diversion of reject water shall be initiated
and performed with automatic equipment. There shall be no automatic restarts of
distribution to reuse until the treatment problem is corrected. Failure to
divert the substandard or reject water after one hour of CAT monitoring results
shall be considered a violation of this chapter. Upon resuming discharge of
reclaimed water to the reclaimed water distribution system for which the CAT
was reached, resampling for turbidity or TRC shall occur within one hour to
verify proper treatment.
2. Should reclaimed water reach the CAT for bacteria (i.e.,
fecal coliform, E. coli or enterococci) in the standards for Level 1 or 2,
whichever applies, the operator of the reclamation system shall immediately
initiate a review of treatment operations and data to identify the cause of the
CAT monitoring results to bring the reclaimed water back into compliance with
the standards. Procedures for operational review shall be as described in an
approved operations and maintenance manual for the reclamation system. Two consecutive
bacterial monitoring results that reach the CAT of the standards shall be
considered a violation of this chapter.
3. Repeated, although temporary, failure to comply with all
other standards by the reclamation system may be considered a violation of this
chapter determined by the frequency and magnitude of the noncompliant
monitoring results and other relevant factors. Failure to resample after
determination that monitoring results are not in compliance with the standards,
to make adjustments to the treatment process to bring the reclaimed water back
into compliance with the standards, or to divert substandard or reject water in
accordance with subdivision 1 of this subsection shall be considered a
violation of this chapter.
D. Treatment or standards other than or in addition to
the treatment and standards of 9VAC25-740-70 A in subsection A
of this section may be necessary based on the quality and character of the
wastewater to be reclaimed or the intended reuse or reuses of the reclaimed
water. Such alternative or additional treatment or standards may be
exempt from this chapter unless required by the board to protect public health
and the environment.
E. Standards for the reclamation of industrial wastewater
will be determined on a case-by-case basis relative to the proposed reuse or
reuses of the reclaimed water and for the purpose of protecting public health
and the environment. Industrial wastewater may also be subject to disinfection
requirements of Level 1 or Level 2 if the industrial wastewater contains sewage
or is expected to contain organisms pathogenic to humans, such as, but not
limited to, wastewater from the production and processing of livestock and
poultry. The point of compliance for reclamation standards of industrial
wastewater shall also be determined on a case-by-case basis.
9VAC25-740-80. Reclaimed water monitoring requirements for
reuse.
A. The monitoring requirements for the standards provided
under 9VAC25-740-70 A, are as follows:
1. Turbidity analysis:
a. Analysis shall be performed by a continuous, on-line
turbidity meter equipped with an automated data logging or recording device and
an alarm to notify the operator when the CAT for turbidity in the standard for
Level 1 has been reached. Compliance with the average turbidity standard shall
be determined daily, based on the arithmetic mean of hourly or more frequent
discrete measurements recorded during a 24-hour period. Monitoring for the
turbidity CAT shall be continuous.
b. Should the on-line turbidity meter go out of service
for either planned or unplanned repair, the permittee shall be allowed to
manually collect samples for turbidity analysis at four-hour intervals up to a
maximum of five days. Following the five-day period of repair, continuous,
on-line monitoring with a turbidity meter shall resume.
2. Sampling and analysis for residual concentrations of
disinfectants, including total residual chlorine (TRC):
a. Shall for For Level 1,:
(1) Shall be continuous on-line monitoring, equipped
with an automated data logging or recording device and an alarm to notify the
operator when the CAT for the disinfectant has been reached. For disinfectants
other than chlorine, continuous on-line monitoring shall be provided at the
point of compliance monitoring. For TRC, continuous on-line monitoring shall be
provided at the end of the contact tank or contact period. Monitoring for the
TRC CAT shall be continuous.
(2) Should the on-line disinfectant monitoring
equipment go out of service for either planned or unplanned repair, the
permittee shall be allowed to manually collect samples for disinfectant
analysis at four-hour intervals up to a maximum of five days. Following the
five-day period of repair, continuous, on-line disinfectant monitoring shall
resume.
b. Shall for For Level 2, shall be based
on the designated design flow of the reclamation system and be the same
sampling type and frequency as specified for sewage treatment works in the
Sewage Collection and Treatment Regulations (9VAC25-790). For chemical
disinfectants other than TRC, monitoring shall be provided at the point of
compliance monitoring in accordance with 9VAC25-740-70 B. For TRC,
monitoring shall be provided at the end of the contact tank or contact period.
3. Sampling for TSS and BOD5 or CBOD5
shall be at least weekly or more frequently based on the designated
design flow of the reclamation system, and shall be the same sampling type and
frequency as specified for sewage treatment works in the Sewage Collection and
Treatment Regulations (9VAC25-790). Compliance with the monthly average TSS and
BOD5 or CBOD5 standards shall be determined monthly,
based on the arithmetic mean of all samples collected during the month.
Compliance with the maximum weekly average TSS and BOD5 or CBOD5
standards shall be determined monthly, using the same procedures applied in the
VPDES Permit program for point source discharges.
4. Sampling for fecal coliform, E. coli or enterococci:
a. Shall for Level 1, be grab samples collected at a time when
wastewater characteristics are most representative of the treatment facilities
and disinfection processes for water reuse, and at the following frequencies
provided in Table 80-A. Compliance with the geometric mean standards
for fecal coliform, E. coli, or enterococci shall be determined monthly, based
on all bacteriological monitoring results for that month. Monitoring of the CAT
for fecal coliform, E. coli, or enterococci shall be based on the
bacteriological monitoring results determined for each day a sample is
collected.
|
Table 80-A
|
|
Reclamation System Designated
Design Flow (MGD)(1)
|
Bacterial Sampling Frequency(2)
|
|
>0.500
|
Daily with the ability to
reduce to no less than four days per week(3)
|
|
0.050 to 0.500
|
Four days per week with the
ability to reduce to no less than three days per week(3)
|
|
<0.050
|
Three days per week with no
reduction allowed
|
|
(1)MGD means million gallons per day.
(2)For reclamation systems treating municipal
wastewater, bacterial samples shall be collected between 10 a.m. and 4 p.m.
to coincide with peak flows to the reclamation system. An exception to this
requirement may be approved upon demonstration to the board that peak flows
to the reclamation system occur outside this period.
(3)Monitoring frequency may be reduced after
demonstrating compliance with bacterial standards for Level 1 and adequate
correlation between bacterial monitoring results and measurements for
surrogate disinfection parameters, such as TRC and turbidity.
|
(1)MGD means million gallons per day.
(2)For reclamation systems treating municipal
wastewater, bacterial samples shall be collected between 10 a.m. and
4 p.m. to coincide with peak flows to the reclamation system. An exception
to this requirement may be approved upon demonstration to the board that peak
flows to the reclamation system occur outside this period.
(3)Monitoring frequency may be reduced after
demonstrating compliance with bacterial standards for Level 1 and adequate
correlation between bacterial monitoring results and measurements for surrogate
disinfection parameters, such as TRC and turbidity.
Compliance with the geometric mean standards for fecal
coliform, E. coli or enterococci shall be determined monthly, based on all
bacteriological monitoring results for that month. Monitoring of the CAT for
fecal coliform, E. coli or enterococci shall be based on the bacteriological
monitoring results determined for each day a sample is collected.
b. Shall for Level 2, be based on the designated design
flow of the reclamation system and be the same sampling type and frequency as
specified for sewage treatment works in the Sewage Collection and Treatment
Regulations (9VAC25-790). Compliance with the geometric mean standard and
monitoring of the CAT for fecal coliform, E. coli or enterococci shall be in
accordance with the same procedures specified for Level 1 in subdivision A
4 a of this section subsection.
5. Samples for pH shall be grab samples collected at least
daily. Compliance with the range of the pH standard shall be determined daily
based on the pH of the samples.
B. Samples collected for TSS, BOD5 or CBOD5,
and fecal coliform, E. coli or enterococci analyses, shall be analyzed by
laboratory methods accepted by the board.
C. A reclamation system that produces reclaimed water
intermittently or seasonally shall monitor only when the reclamation system
discharges to a reclaimed water distribution system, a non-system nonsystem
storage facility, or directly to a reuse.
D. Monitoring of reclaimed water held in system storage
for a period greater than 24 hours at a reclamation system or SRS may be
required by the board (i) where the system storage facility discharges to a
reclaimed water distribution system, a nonsystem storage facility, or directly
to a reuse; and (ii) where conditions exist at the facility to degrade the
reclaimed water to a quality failing to comply with applicable minimum reclaimed
water standards for the intended reuses of that water. When monitoring of
reclaimed water in or from system storage is required, monitoring parameters
and frequencies shall be determined by the board on a case-by-case basis.
D. E. Monitoring other than or in addition to
that described under 9VAC25-740-80 A may be required for treatment of reclaimed
water that is provided pursuant to 9VAC25-740-70 D and 9VAC25-740-70 E.
9VAC25-740-90. Minimum standard requirements for reuses of
reclaimed water.
A. Minimum standard requirements for reclaimed water shall be
determined, in part, by the reuse or reuses of that water. For specific reuses,
the minimum standard requirements of reclaimed water are as follows: provided
in Table 90-A.
|
Table 90-A
Minimum Standard Requirements for Reuses of Reclaimed Water
|
|
|
Reuse
Category
|
Reuse
|
Minimum
Standard Requirementsa
|
|
|
1. Urban – Unrestricted Access
|
All types of landscape
irrigation in public access areas (i.e., golf courses, cemeteries, public
parks, school yards and athletic fields)
Toilet flushing –
nonresidentialb
Fire fighting or protection
and fire suppression in nonresidential buildingsb
Outdoor domestic or
residential reuse (i.e., lawn watering and noncommercial car washing)b
Commercial car washes
Commercial air conditioning
systems
|
Level 1
|
|
|
2. Irrigation – Unrestricted
Accessb c
|
Irrigation for any food crops
not commercially processed, including crops eaten raw
|
Level 1
|
|
|
3. Irrigation – Restricted
Accessb, c, d, e
|
Irrigation for any food crops commercially
processed
|
Level 2
|
|
|
Irrigation for nonfood crops
and turf, including fodder, fiber and seed crops; pasture for foraging
livestock; sod farms; ornamental nurseries; and silviculture
|
|
|
4. Landscape Impoundmentsd
f
|
Potential for public access or
contact
|
Level 1
|
|
|
No potential for public access
or contact
|
Level 2
|
|
|
5. Constructione
|
Soil compaction
Dust control
Washing aggregate
Making concrete
Irrigation to establish
vegetative erosion controlg
|
Level 2
|
|
|
6. Industriale
|
Commercial laundries
Ship ballasth
|
Level 1
|
|
|
Livestock wateringf
i
Aquacultureg
j
Stack scrubbing
Street washing
Boiler feed
Ship ballast
Once-through coolingh
k
Recirculating cooling towersh
k
|
Level 2
|
|
|
|
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aFor reclaimed industrial wastewater, minimum
standards required shall be determined on a case-by-case basis relative to
the proposed reuse or reuses.
bReclaimed water treated to Levels 1 or 2 may be used
for surface irrigation, including spray irrigation. Reclaimed water treated
to Level 2 may be used for spray irrigation if the area to be irrigated
restricts access to the public and has appropriate setbacks in accordance
with 9VAC25-740-170. Reclaimed water treated to Level 1 or 2 may be used for
irrigation of food crops eaten raw, excluding root crops, only when there
will be no direct contact (or indirect contact via aerosol carry) between the
reclaimed water and edible portions of the crop.
cFor irrigation with reclaimed water treated to Level
2, the following shall be prohibited unless Level 1 disinfection is provided:
1. Grazing by milking
animals on the irrigation reuse site for 15 days after irrigation with
reclaimed water ceases, and
2. Harvesting, retail sale
or allowing access by the general public to ornamental nursery stock or sod
farms for 14 days after irrigation with reclaimed water ceases.
dLandscape impoundments may also be used to store
reclaimed water for other subsequent reuses of that reclaimed water, such as
irrigation, if included in an inventory of reclaimed water storage facilities
submitted to the board pursuant to 9VAC25-740-110 C 15.
eWorker contact with reclaimed water treated to Level
2 shall be minimized. Level 1 disinfection shall be provided when worker
contact with reclaimed water is likely.
fLevel 1 disinfection shall be provided when the
reclaimed water is consumed by milking livestock.
gLevel 1 disinfection shall be provided for
aquaculture production of fish to be consumed raw, such as for sushi.
hWindblown spray generated by once-through cooling or
recirculating cooling towers using reclaimed water treated to Level 2, shall
not reach areas accessible to workers or the public unless Level 1
disinfection is provided. See also setback requirements in 9VAC25-740-170 for
open cooling towers.
aFor reclaimed industrial wastewater, minimum standards
required shall be determined on a case-by-case basis relative to the proposed
reuse or reuses.
bThese reuses of reclaimed water are prohibited in
accordance with 9VAC25-740-50 B 2 where they would involve the distribution
of reclaimed water to a one or two family dwelling in order to occur.
cReclaimed water treated to Levels 1 or 2 may be used
for surface irrigation, including spray irrigation. Reclaimed water treated
to Level 2 may be used for spray irrigation if the area to be irrigated
restricts access to the public and has appropriate setbacks in accordance
with 9VAC25-740-170. Reclaimed water treated to Level 1 or 2 may be used for
irrigation of food crops eaten raw, excluding root crops, only when there
will be no direct contact (or indirect contact via aerosol carry) between the
reclaimed water and edible portions of the crop.
dFor irrigation with reclaimed water treated to Level
2, the following shall be prohibited unless Level 1 disinfection is provided:
1. Grazing by milking animals
on the irrigation reuse site for 15 days after irrigation with reclaimed
water ceases, and
2. Harvesting, retail sale or
allowing access by the general public to ornamental nursery stock or sod
farms for 14 days after irrigation with reclaimed water ceases.
eWorker contact with reclaimed water treated to Level
2 shall be minimized. Level 1 disinfection shall be provided when worker
contact with reclaimed water is likely.
fLandscape impoundments may also be used to store
reclaimed water for other subsequent reuses of that reclaimed water, such as
irrigation, if included in an inventory of reclaimed water storage facilities
submitted to the board pursuant to 9VAC25-740-110 C 15.
gIrrigation with reclaimed water to establish
vegetative cover at a construction site shall be subject to requirements for
irrigation reuse specified in 9VAC25-740-100 C. Continued irrigation of the
same site following construction completion shall be subject to the minimum
standard requirements of reuse categories 1, 2, or 3 contained in this table,
determined by the intended reuse of the irrigated site.
hReuse of reclaimed water for ship ballast shall also
comply with applicable federal regulations and standards governing the use
and discharge of ship ballast.
iLevel 1 disinfection shall be provided when the
reclaimed water is consumed by milking livestock.
jLevel 1 disinfection shall be provided for
aquaculture production of fish to be consumed raw, such as sushi.
kWindblown spray generated by once-through cooling or
recirculating cooling towers using reclaimed water treated to Level 2, shall
not reach areas accessible to workers or the public unless Level 1
disinfection is provided. See also setback requirements in 9VAC25-740-170 for
open cooling towers.
|
|
B. For any type of reuse not addressed in this chapter
listed in subsection A of this section, including, but not limited to,
indirect potable reuse and below-ground drip irrigation reuse, that is
newly proposed after October 1, 2008, indirect nonpotable reuse that is
newly proposed after (effective date of amended regulation); or any reuse of
reclaimed industrial water, including reuses listed in subsection A of this
section, the board may prescribe specific reclaimed water standards and
monitoring requirements needed to protect public health and the environment.
When establishing these requirements for the proposed reuse, the board shall
consider the following factors:
1. The risk of the proposed reuse to public health with
specific input from the Virginia Department of Health;
2. The degree of public access and human exposure to reclaimed
water by the proposed reuse;
3. The reclaimed water treatment necessary to prevent nuisance
conditions by the proposed reuse;
4. The reclaimed water treatment necessary for the proposed
reuse to comply with this and other applicable regulations of the board;
5. The potential for improper or unintended use of the
reclaimed water;
6. Other federal or state laws, regulations and guidelines
that would apply to the proposed reuse;
7. The similarity of the proposed reuse to reuses listed in
this chapter with regard to potential impact to public health and the
environment;
8. Whether the proposed reuse may be excluded or prohibited by
9VAC25-740-50; and
9. For new indirect potable reuse proposals, residence or
transport time, mixing ratios, and other relevant information deemed necessary
by the board.
C. For any indirect potable reuse (IPR) project that is
newly proposed after (effective date of amended regulation), the following are
required:
1. A multiple barrier approach shall be used in the
planning, design, and operation of the project. Multiple barriers to be
employed for the project shall be described in the application for a permit in
accordance with 9VAC25-740-100 D.
2. All reclaimed water generated by a reclamation system
for IPR shall meet, at a minimum, Level 1 reclaimed water standards, reclaimed
water standards developed pursuant to subsection B of this section, and any
other standards that may apply, including but not limited to, the Water Quality
Standards (9VAC25-260) and total maximum daily loads (TMDLs). Where there is
more than one standard for the same pollutant, the more stringent standard
shall apply.
3. The public health risks of and the need to impose new or
more stringent reclaimed water standards for an IPR project shall be
reevaluated with specific input from the Virginia Department of Health upon
each renewal of the permit issued to the reclamation system that produces
reclaimed water for the project. Factors to be considered in the reevaluation
shall include, at a minimum, applicable factors contained in subsection B of
this section.
4. All reclamation systems identified as a component of an
IPR project in accordance with 9VAC25-740-100 D 1, including pump stations that
are part of the reclamation systems, shall meet reliability requirements
specified in 9VAC25-740-130 C.
5. VPDES permitted treatment works that have SIUs and
provide source water for reclamation and subsequent IPR shall, if required,
have a pretreatment program or a program equivalent to a pretreatment program
in accordance with 9VAC25-740-150 E.
Part III
Application and Technical Requirements
9VAC25-740-100. Application for permit.
A. The need for an owner to obtain a permit or modification
or reissuance of an existing permit from the board for a proposed or an
existing reclamation system, reclaimed water distribution system, satellite
reclamation system (SRS), or, as applicable, water reuse, shall be
determined in accordance with 9VAC25-740-30. Where required, permit coverage
for these systems or activities shall be provided in accordance with
9VAC25-740-40, contingent upon receipt of a complete application from the
owner. The application shall contain supporting documentation and information
required by subsections B and C of this section.
B. General information. For projects that involve water
reclamation and the distribution of reclaimed water, the following information
shall be submitted with an application for a permit. Information required
for this subsection may be provided by referencing specific information
previously submitted to the board unless changes have occurred that require the
submission of new or more current information. For projects that involve
exclusively the distribution of reclaimed water, information for only
subdivisions 1, 2, and 5 of this subsection shall be submitted with an
application for a permit.
1. A description of the design and a site plan showing
operations and unit processes of the proposed project, including and as applicable,
treatment, storage, distribution, reuse and disposal facilities, and
reliability features and controls. Treatment works, reclamation systems and
reclaimed water distribution systems previously permitted need not be included,
unless they are directly tied into the new units or are critical to the
understanding of the complete project. Design approaches shall be consistent
with accepted engineering practice and any applicable state regulations;
2. A general location map, showing orientation of the project
with reference to at least two geographic features (e.g., numbered roads, named
streams or rivers, etc.). A general location map for a reclaimed water
distribution system may be included in the map of a service area required in
accordance with subdivision C 1 a of this section;
3. Information regarding each wastewater treatment works that
diverts or will divert effluent or source water to the reclamation
system to be permitted, including:
a. All unit processes used for the treatment of wastewater at
the facility prior to diversion to the reclamation system,
b. Any significant industrial users defined in 9VAC25-31-10
SIUs that indirectly discharge to the wastewater treatment works; and
c. Analyses of the effluent or source water to be
diverted by the facility to the reclamation system.
4. Information regarding the sewage collection system that
diverts or will divert sewage to the satellite reclamation system SRS
to be permitted, including:
a. The name of the sewage collection system and the owner of
that system;
b. Any significant industrial users (SIUs) defined in
9VAC25-31-10 SIUs that discharge directly or indirectly to the
collection line from which sewage will be diverted to the satellite
reclamation system, SRS, excluding any downstream SIUs whose
discharge has no potential to backflow to the satellite reclamation system
SRS intake. This information shall include the location of the SIUs and
distance between the SIUs and the satellite reclamation system SRS
along the sewage collection line or lines; and
c. Characterization of the sewage to be diverted from the
sewage collection system to the satellite reclamation system SRS
at the point of diversion. Analysis of the sewage may be required where SIUs
described in subdivision 4 b of this subsection discharge to the sewage
collection system.
5. Information regarding each reclamation system or satellite
reclamation system SRS to be permitted, including:
a. The standards specified in 9VAC25-740-70 A to be achieved;
b. Any other physical, chemical, and biological
characteristics and constituent concentrations that may affect the intended
reuse of the reclaimed water with respect to adverse impacts to public health
or the environment; and
c. Design Designated design flow.
6. For the purpose of determining any significant adverse
impacts to other beneficial uses, information regarding the VPDES permitted
wastewater treatment works or the sewage collection system that proposes a new
or increased diversion of source water to a reclamation system or SRS for the
production of reclaimed water, including:
a. The latitude and longitude of the treatment works
discharge location to a surface water or the SRS return discharge location in
the sewage collection system;
b. The mean monthly discharge of the treatment works or the
SRS for each month during the most recent 60 or more consecutive months at the
time of application, or where this information is not available, estimated
values for the mean monthly discharge of the treatment works or the SRS for
each month during a period of 12 consecutive months;
c. The maximum monthly diversion of source water from the
treatment works to a reclamation system or from the sewage collection system to
a SRS for each month during a period of 12 consecutive months;
d. Pertaining only to sewage collection systems that
provide source water, the name of the treatment works at the terminus of the
sewage collection system; and
e. The information specified in subdivisions 5 a, b, and c
of this subsection for each increase in source water diverted by the treatment
works or the sewage collection system to a reclamation system or SRS,
respectively, among multiple increases to occur in planned phases, and the
anticipated dates of the phased increases.
7. Information describing measures to be immediately
implemented for the management of wastewater and reclaimed water by a
conjunctive system in the event that primary reuses of reclaimed water
generated by the system cease or fail, and where the system:
a. Relies primarily or completely on water reclamation and
reuse to eliminate wastewater;
b. Relies on:
(1) Irrigation as the primary or only reuse of reclaimed
water, or
(2) One or more large end users, each consuming a
significant volume of reclaimed water, such that the ability of the conjunctive
system to manage wastewater would be adversely impacted if any such end user
were to discontinue receiving reclaimed water from the conjunctive system; and
c. Does not have the ability to implement two or more of
the options described in 9VAC25-740-110 C 1.
8. Information required per subdivision 7 of this
subsection shall be included in the Reclaimed Water Management plan described in
subsection C of this section where the conjunctive system is acting as a
reclaimed water agent by directly distributing reclaimed water to an end user
or end users, including an end user that is also the applicant or permittee.
6. 9. Information, if applicable, regarding any
type of proposed reuse not listed in this chapter, by which the board can
evaluate the need to prescribe specific reclaimed water treatment and
monitoring requirements in accordance with 9VAC25-740-90 B; and.
Information required for subsection B of this section may
be provided by referencing specific information previously submitted to the
board unless changes have occurred that require the submission of new or more
current information.
C. Reclaimed water management (RWM) plan.
1. A RWM plan shall be submitted in support of a permit
applications application for a new or expanded reclamation
systems, satellite reclamation systems system, SRS, or reclaimed
water distribution systems that provide system acting as a
reclaimed water agent by directly distributing reclaimed water to
an end user or end users, including an end user that is also the applicant or
permittee. A RWM plan shall not be required for a reclamation system that
distributes reclaimed water exclusively for indirect potable reuse. The RWM
plan shall contain the following:
a. A description and map of the expected service area to be
covered by the RWM plan for the term of the permit for the project (i.e., five
years for a VPDES or 10 years for a VPA permit). The map shall identify all
reuses according to reuse categories shown in 9VAC25-740-90 A or other
categories for reuses that are or shall be authorized pursuant to 9VAC25-740-90
B, and their locations within the service area. The map shall also identify and
show the location of all public potable water supply wells and springs, and
public water supply intakes, within the boundaries of the service area. The
description and map of the service area shall be updated by the permittee with
each permit renewal.
b. A current inventory of impoundments, ponds or tanks that
are used for system storage of reclaimed water and, as applicable, reject water
storage under the control of the permittee, and nonsystem storage located
within the service area of the RWM plan in accordance with 9VAC25-740-110 C 15.
c. A water balance that accounts for the volumes of reclaimed
water to be generated, stored, reused and discharged (i.e., through a VPDES
permitted outfall, back to a sewage collection system, or otherwise disposed).
The water balance shall include projected volumes of seasonal and annual
reclaimed water demand for each reuse category.
d. An example of service agreements or contracts to be
established by the applicant or permittee with end users regarding
implementation of and compliance with the RWM plan. A service agreement or
contract shall contain conditions and requirements specified in subdivisions 3
b and c of this subsection and in 9VAC25-740-170 that apply to the particular
planned reuse of each end user. Terms of the agreement shall require property
owners to report to the applicant or permittee all potable and nonpotable water
supply wells on their property and to comply with appropriate setback distances
for wells where reclaimed water will be used on the same property. Within the
agreement or contract, the applicant or permittee shall also reserve the right
to perform routine or periodic inspections of an end user's reclaimed water
reuses and storage facilities, and to terminate the agreement or
contract and withdraw service for any failure by the end user to comply
with the terms and conditions of the agreement or contract if corrective action
for such failure is not taken by the end user.
e. A description of monitoring of end users by the applicant
or permittee to verify compliance with the terms of their agreements or
contracts. Monitoring shall include, at a minimum, metering the volume of
reclaimed water consumed by end users.
f. An education and notification program required in
accordance with 9VAC25-740-170 A.
g. A cross-connection and backflow prevention program that:
(1) Evaluates the potential for cross-connections of the
reclaimed water distribution system to a potable water system and backflow to
the reclaimed water distribution system from industrial end users;
(2) Evaluates the public health risks associated with possible
backflow from industrial end users;
(3) Describes inspections to be performed by the applicant or
permittee at the time end users connect to the reclaimed water distribution
system and periodically thereafter to prevent cross-connections to a potable
water system and backflow from industrial end users as determined necessary
through the program evaluation; and
(4) Insures that cross-connection and backflow prevention
design criteria specified in 9VAC25-740-110 B for reclaimed water distribution
systems are implemented.; and
(5) Requires a A backflow prevention device shall
be required on the reclaimed water service connection to an industrial end
user, unless evaluation by the cross-connection and backflow prevention program
determines that there is minimal risk to public health associated with possible
backflow from the industrial end user or that there will be no backflow from
the industrial end user capable of contaminating the reclaimed water supply.
h. A description of how the quality of reclaimed water in the
reclaimed water distribution system shall be maintained to meet and, if
determined necessary by the board, monitored to verify compliance with the standards
minimum standard requirements specified in 9VAC25-740-90 for the
intended reuse or reuses of the reclaimed water in accordance with
9VAC25-740-90., excluding CAT standards. Where monitoring of reclaimed
water in the distribution system is required, monitoring parameters and
frequencies shall be determined by the board on a case-by-case basis.
i. Information specified in subdivision B 7 of this section
for conjunctive systems described in subdivision B 8 of this section.
i. j. Where the applicant or permittee is the
provider of reclaimed water, the exclusive end user of that reclaimed water and
is not otherwise excluded under 9VAC25-740-50 A, information for only
subdivisions C 1 a, b, and c of this section subsection
is required.
2. All irrigation reuses of reclaimed water shall be limited
to supplemental irrigation.
3. Nutrient management requirements for irrigation reuse will
be established in the RWM plan according to the concentration of total N and
total P in the reclaimed water compared to "Biological Nutrient Removal (BNR)"
as defined in 9VAC25-740-10.
a. Except as specified in subdivision 4 of this subsection, a
nutrient management plan (NMP) shall not be required for irrigation reuse of
reclaimed water treated to achieve BNR or nutrient levels below BNR.
b. For bulk irrigation reuse of reclaimed water not treated to
achieve BNR, a NMP shall be required of the end user.
(1) Where the applicant or permittee is the end user, the NMP
shall be submitted with the RWM plan to the board and shall be the
responsibility of the applicant or permittee to properly implement.
(2) Where the end user is other than the applicant or
permittee, the NMP shall be required as a condition of the service agreement or
contract specified in subdivision C 1 d of this section subsection
between the applicant or permittee and the end user. The end user shall be
responsible for obtaining, maintaining and following a current NMP; providing a
copy of the most current NMP to the applicant or permittee prior to initiating
bulk irrigation reuse of reclaimed water; and providing proof of compliance
with the NMP at the request of the permittee.
c. For nonbulk irrigation reuse of reclaimed water not treated
to achieve BNR, a NMP shall not be required. However, the RWM plan shall
describe other measures to be implemented by the applicant or permittee to
manage nutrient loads by nonbulk irrigation reuse of reclaimed water not
treated to achieve BNR within the service area. These shall include, but are
not limited to the following:
(1) The inclusion of language in the service agreement or
contract specified in subdivision C 1 d of this section subsection,
explaining proper use of the reclaimed water by the end user for the purpose of
managing nutrients;
(2) Reclaimed water metering of individual nonbulk
irrigation end users;
(3) (2) Routine distribution of literature not
less than annually, to individual nonbulk irrigation end users addressing the
proper use of reclaimed water for irrigation in accordance with 9VAC25-740-170
A; and
(4) (3) Monthly monitoring of N and P loads by
nonbulk irrigation reuses to the service area of the RWM plan based on the
total monthly metered use nonbulk irrigation reuse of reclaimed
water for the service area and the monthly average concentrations of total N
and total P in the reclaimed water. Results of this monitoring shall be
included in the annual report to the board submitted in accordance with
9VAC25-740-200 C.
4. Independent of the reclaimed water nutrient content, a NMP
shall be required for a bulk irrigation reuse site where:
a. A wastewater treatment works, reclamation system, satellite
reclamation system SRS, or reclaimed water distribution system and
the irrigation reuse site or sites are under common ownership or management,
and
b. In addition to irrigation reuse:
(1) There is no option to dispose of the reclaimed water
through a VPDES permitted discharge, or
(2) There is an option to dispose of the reclaimed water
through a VPDES permitted discharge, but the VPDES permit does not allow
discharge of the full nutrient load under design flow (e.g., a treatment works
with a VPDES permitted discharge implements water reclamation and reuse in lieu
of providing treatment to meet nutrient effluent limits at design flow).
The 5. A NMP required per subdivision 4 of
this subsection shall be approved by the DCR and submitted with the RWM
plan to the board. The applicant or permittee shall be responsible for proper
implementation of the NMP.
5. 6. If required for a specific irrigation
reuse, the NMP shall be prepared by a nutrient management planner certified by
the DCR and shall be maintained current in accordance with the Nutrient
Management Training and Certification Regulations, 4VAC5-15. A copy of the NMP
for each irrigation reuse site shall be maintained at the site or at a location
central to all sites covered by the plan. Another copy shall be provided to and
retained by the applicant or permittee.
6. 7. A site plan is required for each bulk
irrigation reuse site and area of proposed expansion to an existing
irrigation reuse site, displayed on the most current USGS topographic maps
(7.5 minutes series, where available) and showing the following:
a. The boundaries of the irrigation site;
b. The location of all potable and nonpotable water supply
wells and springs, public water supply intakes, occupied dwellings, property
lines, areas accessible to the public, outdoor eating, drinking and bathing
facilities; surface waters, including wetlands; limestone rock outcrops and
sinkholes within 250 feet of the irrigation site; and
c. Setbacks areas around the irrigation site in accordance
with 9VAC25-740-170.
Where expansion of an existing irrigation site is
anticipated, the same information shall be provided for the area of proposed
expansion.
7. 8. The site plan for a bulk irrigation reuse
site shall be prepared by:
a. The applicant or permittee for submission with the RWM plan
to the board when the irrigation site is under common ownership or management
with a wastewater treatment works, a reclamation system or satellite
reclamation system, SRS, or reclaimed water distribution system from
which it receives reclaimed water for irrigation; or
b. The bulk irrigation end user for submission with the
service agreement or contract between the end user and the applicant or
permittee when the irrigation site is not under common ownership or management
with a wastewater treatment works, a reclamation system or satellite
reclamation system, SRS, or reclaimed water distribution system from
which it receives reclaimed water for irrigation.
8. 9. For the addition of new end users or
new reuses not contained in the original RWM plan submitted with the
application for a permit, the permittee shall submit to the board for
approval an amendment to the RWM plan identifying the new end users not
less than 30 days or new reuses prior to connection and reclaimed
water service to these the new end users or initiating the new
reuses. For each new end user or new reuse, the permittee shall also
provide all applicable information required by this subsection C of this
section. Amendment of the RWM plan for the addition of new end users or
new reuse after the issuance or reissuance of the permit shall not be
considered a modification of the permit unless the new end users or new
reuses will require the addition of different reclaimed water standards,
monitoring requirements and conditions not contained in the permit.
D. Indirect potable reuse (IPR). For an application to
permit an IPR project, the following additional information shall be submitted
by the applicant or permittee to the board:
1. Identification of the following components of an IPR
project:
a. The reclamation system that will produce reclaimed water
discharged to the water supply source (WSS);
b. The WSS to which the reclamation system identified in
subdivision 1 a of this subsection will discharge reclaimed water.
c. The waterworks that will withdraw water from the WSS
identified in subdivision 1 b of this subsection to produce potable water.
2. Identification of all uses in addition to IPR of the WSS
identified in subdivision 1 of this subsection. Such uses shall be those deemed
acceptable by the Virginia Department of Health or the Waterworks Regulation
(12VAC5-590).
3. A description of multiple barriers to be implemented by
the reclamation system or waterworks, or both, to produce water of a quality
suitable for IPR. Multiple barriers shall include at a minimum:
a. Source control and protection. This involves the control
of contaminants with potential to adversely impact public health by preventing
or minimizing the entry of these contaminants into the wastewater collection
system prior to reclamation or the WSS prior to withdrawal by the waterworks.
Source control and protection shall, at a minimum, address pretreatment
requirements for SIUs in accordance with 9VAC25-740-150 E and education
requirements in accordance with 9VAC25-740-170 A 1, and shall describe other
measures to reduce the introduction of contaminants from domestic sources that
may include, but are not limited to, community collection programs for
hazardous wastes and unused pharmaceuticals.
b. Effective and reliable treatment. This involves the use
of treatment processes at both the reclamation system and the waterworks that,
in combination with any natural attenuation provided by the environmental
buffer to be described per subdivision 3 c of this subsection, shall reliably
achieve the water quality necessary for IPR. A description of reclamation
system treatment processes for IPR may be satisfied by referencing application
information submitted in accordance with subsection B of this section.
c. Environmental buffers and natural attenuation. This
involves the use of an environmental buffer, such as a surface water used as a
WSS source, to provide further removal or degradation of certain contaminants
when exposed to naturally occurring physical, chemical, and biological
processes in the environment over time.
d. Monitoring programs. This involves monitoring at
progressive stages of treatment or barriers of the project to verify that they are
working effectively and reliably to achieve the necessary water quality for
IPR.
e. Responses to adverse conditions. To address those
circumstances where the reclamation system of the IPR project experiences a
catastrophic treatment failure that cannot be corrected by subsequent treatment
or barriers, or fails to produce reclaimed water meeting the standards or
limits at the point of discharge to the WSS, the application for the IPR
project shall contain:
(1) A contingency plan that describes all alternatives to
be implemented in lieu of discharging the substandard reclaimed water to the
WSS.
(2) A notification program for the reclamation system of
the IPR project and as described in 9VAC25-740-170 A 2.
4. An evaluation of the combined effectiveness of all the
barriers described in subdivision 3 of this subsection to achieve the water
quality necessary for IPR.
5. Any information deemed necessary by the board to
establish reclaimed water standards and monitoring requirements for the IPR
project in accordance with 9VAC25-740-90 B. This shall include, but is not
limited to, residence or transport times, mixing ratios, and other applicable
modeling of the reclamation system discharge or contaminants introduced by the
discharge to the WSS.
6. A water balance for the reclamation system that accounts
for the volumes of reclaimed water to be generated, stored, discharged to the
WSS, and withdrawn for IPR.
7. Any change by the reclamation system to provide
reclaimed water for other reuses or end users in addition to IPR shall require
submission of a RWM plan in accordance with subdivision C 1 of this section.
The water balance for the RWM plan shall include the water balance required per
subdivision 6 of this subsection for the IPR project.
8. A copy of the contractual agreement established between
the reclamation system and the waterworks of the IPR project, identifying the
responsibilities of each party to implement multiple barriers described in
accordance with subdivision 3 of this subsection, unless the reclamation system
and waterworks are under common ownership or management.
9VAC25-740-105. Application for an emergency authorization.
A. An application for an emergency authorization as
described in 9VAC25-740-45 shall include information addressing the following:
1. Contact information of the applicant or permittee
including name, mailing address, telephone number, and, if applicable, fax
number, and electronic mail address;
2. Name of the city or county where the emergency
production, distribution, and reuse of reclaimed water shall occur;
3. Recent and current water use, including monthly water
use in the previous calendar year and weekly water use in the previous six
months prior to the application. The application shall identify the sources of
such water and also identify any water purchased from other water suppliers;
4. A description of the severity of the public water supply
emergency, including for reservoirs, an estimate of days of remaining supply at
the current rates of use and replenishment; for wells, current production; for
intakes, current streamflow;
5. A description of mandatory water conservation measures
taken or imposed by the applicant or permittee and the dates when the measures
were implemented. For the purposes of obtaining an emergency authorization,
mandatory water conservation measures shall include, but are not limited to,
the prohibition of lawn and landscape watering, noncommercial vehicle washing,
the watering of recreation fields, refilling of swimming pools, and the washing
of paved surfaces;
6. An estimate of water savings realized by implementing
mandatory water conservation measures;
7. Documentation that the applicant or permittee has
exhausted all public water supply management actions that would minimize the
threat to public welfare, safety, and health, and would avoid the need to
obtain an emergency authorization. This may include among other actions, the
acquisition of an Emergency Virginia Water Protection Permit (9VAC25-210) for a
new or increased withdrawal;
8. Any other information demonstrating that public water
supply conditions are a substantial threat to public health or safety;
9. Name, address, and permit number of the municipal
treatment works that proposes to produce, distribute, or reuse reclaimed water
under the emergency authorization;
10. A statement confirming that the municipal treatment
works:
a. Does not have SIUs, or
b. Has SIUs and a pretreatment program developed, approved,
and maintained in accordance with Part VII (9VAC25-31-730 et seq.) of the VPDES
Permit Regulation;
11. Information regarding the design and operation of the
treatment works, demonstrating that the facility is currently capable of
producing reclaimed water meeting minimum standard requirements of
9VAC25-740-90 for reuses listed in the application pursuant to subdivision 12
of this subsection;
12. Information specified in 9VAC25-740-100 B 3 d regarding
the diversion of source water from the treatment works to reclamation and
reuse;
13. A list of proposed reuses for reclaimed water produced
by the municipal treatment works and an explanation of how these reuses will
protect public health and safety under the current public water supply
conditions;
14. A description of the system that will be used to
distribute reclaimed water from the municipal treatment works to the intended
reuses; and
15. A signed and dated certification statement in
accordance with signatory requirements of the VPDES Permit Regulation
(9VAC25-31) or the VPA Permit Regulation (9VAC25-32), whichever applies to the
permit issued to the municipal treatment works.
B. The application for a permit described in
9VAC25-740-100 may be used as an application to issue an emergency
authorization where the permit application contains the information required in
subsection A of this section.
9VAC25-740-110. Design criteria.
A. Reclamation system.
1. The design of systems for the reclamation of
municipal wastewater or the effluent source water derived from a
municipal wastewater treatment works shall adhere to the standards of design
and construction specified in the Sewage Collection and Treatment Regulations
(9VAC25-790) and other applicable engineering standards and regulations. Design
standards for reclamation systems of industrial wastewater or the effluent
source water derived from an industrial wastewater treatment works shall
be determined and evaluated on a case-by-case basis.
2. Ultraviolet (UV) disinfection for reclamation systems:
a. For Level 1 reclaimed water:
(1) Designs for UV disinfection shall be validated in
accordance with NWRI Ultraviolet Disinfection Guidelines for Drinking Water and
Water Reuse, Second Edition (2003) (guidelines) to meet a UV design dosage
greater than or equal to 100,000 uWsec/cm2 (MS-2 dose) under peak
flow and a minimum UV transmittance of 55% at 254 nm. A lower UV disinfection
dosage may be authorized by the board if demonstrated to meet at least one of
the bacteria standards for Level 1 specified in 9VAC25-740-70 A, and where
microbial testing is used to validate the efficacy of the UV disinfection dose
in accordance with the guidelines. For the lower disinfection dose, the board
may develop reclaimed water turbidity standards and minimum UV transmittance
requirements that are unique to the UV disinfection process of the reclamation
system.
(2) The UV disinfection system shall be designed to supply
the minimum dose specified in subdivision 2 a (1) of this subsection at all
times. The system may be automated to immediately adjust the UV disinfection
dosage in response to changes in the UV system influent reclaimed water flow
and quality.
b. UV disinfection for Level 2 reclaimed water shall be
designed, constructed, and operated in accordance with the Sewage Collection
and Treatment Regulations (9VAC25-790) for UV disinfection of secondary
effluent.
B. Reclaimed water distribution system.
1. All reclaimed water distribution systems shall be designed
and constructed in accordance with this chapter and applicable sections of the
Sewage Collection and Treatment Regulations (9VAC25-790) pertaining to force
mains, so that:
a. Reclaimed water does not come into contact with or
otherwise contaminate a potable water system;
b. The structural integrity of the system is provided and
maintained; and
c. The capability for inspection, maintenance, and testing is
maintained.
2. For a reclaimed water distribution system, the following
shall be implemented as part of the cross-connection and backflow prevention
program submitted with the RWM plan:
a. There shall be no direct cross-connections between the
reclaimed water distribution system and a potable water supply system.
b. The reclaimed water distribution system shall be in
compliance with the cross connection control and backflow prevention
requirements of Article 3 (12VAC590-580 et seq.) of Part II of the Commonwealth
of Virginia Waterworks Regulations, and, when applicable, the
reclaimed water distribution system shall also be in compliance with the
Virginia Statewide Building Code, and local building and plumbing codes (13VAC5-63).
c. Potable water may be used to supplement reclaimed water for
a reuse, provided there is an air gap separation of at least eight inches
between the potable water and the reclaimed water or a reduced pressure
principle backflow prevention device installed at the potable water service
connection to the reuse. The installation of the reduced pressure principal
backflow prevention device shall allow for proper inspection and testing of the
device.
d. Reclaimed water shall not be returned to the reclaimed
water distribution system after the reclaimed water has been delivered to an
end user.
3. In-ground reclaimed water distribution pipelines shall be
installed and maintained to achieve minimum separation distance and
configurations as follows:
a. No reclaimed water distribution pipeline shall pass within
50 feet of a potable water supply well, potable water supply spring or water
supply intake that are part of a regulated waterworks. The same separation
distance shall be required between a reclaimed water distribution pipeline and
a nonpublic or private potable water supply well or spring, but may be reduced
to not less than 35 feet provided special construction and pipe materials are
used to obtain adequate protection of the potable water supply.
b. Reclaimed water distribution pipeline shall be separated
horizontally by at least 10 feet from a water main. The distance shall be
measured edge-to-edge. When local conditions prohibit this horizontal separation,
the reclaimed water distribution pipeline may be laid closer provided that the
water main is in a separate trench or an undisturbed earth shelf located on one
side of the reclaimed water distribution pipeline and the bottom of the water
main is at least 18 inches above the top of the reclaimed water distribution
pipeline. Where this vertical separation cannot be obtained, the reclaimed
water distribution pipeline shall be constructed of water pipe material in
accordance with AWWA specifications and pressure tested in place without
leakage prior to backfilling. The hydrostatic test shall be conducted in
accordance with the AWWA standard (ANSI/AWWA C600-05, effective December 1,
2005) for the pipe material, with a minimum test pressure of 30 psi.
c. Distribution pipeline that conveys Level 1 reclaimed water
shall be separated horizontally by at least two feet from a sewer line. The
distance shall be measured edge-to-edge. When local conditions prohibit this
horizontal separation, the reclaimed water distribution pipeline may be laid
closer provided that the sewer line is in a separate trench or an undisturbed
earth shelf located on one side of the reclaimed water distribution pipeline
and the bottom of the reclaimed water distribution pipeline is at least 18
inches above the top of the sewer line. Where this vertical separation cannot
be obtained, either the reclaimed water distribution pipeline or the sewer line
shall be constructed of water pipe material in accordance with AWWA
specifications and pressure tested in place without leakage prior to
backfilling. The hydrostatic test shall be conducted in accordance with the
AWWA standard (ANSI/AWWA C600-05, effective December 1, 2005) for the pipe
material, with a minimum test pressure of 30 psi.
d. Reclaimed water distribution pipeline shall cross under
water main such that the top of the reclaimed water distribution pipeline is at
least 18 inches below the bottom of the water main. When local conditions
prohibit this vertical separation, the reclaimed water distribution pipeline
shall be constructed of AWWA specified water pipe and pressure tested in place
without leakage prior to backfilling, in accordance with the provisions of the
Sewage Collection and Treatment Regulations (9VAC25-790). Where reclaimed water
distribution pipeline crosses over water main, the reclaimed water distribution
pipeline shall:
(1) Be laid to provide a separation of at least 18 inches
between the bottom of the reclaimed water distribution pipeline and the top of
the water main.
(2) Be constructed of AWWA approved water pipe and pressure
tested in place without leakage prior to backfilling, in accordance with the
provisions of the Sewage Collection and Treatment Regulations (9VAC25-790).
(3) Have adequate structural support to prevent damage to the
water main.
(4) Have joints placed equidistant and as far as possible from
the water main joints.
e. Sewer line shall cross under distribution pipeline that
conveys Level 1 reclaimed water such that the top of the sewer line is at least
18 inches below the bottom of the reclaimed water distribution pipeline. When
local conditions prohibit this vertical separation, the sewer line shall be
constructed of AWWA specified water pipe and pressure tested in place without
leakage prior to backfilling, in accordance with the provisions of the Sewage
Collection and Treatment Regulations (9VAC25-790). Where sewer line crosses
over distribution pipeline that conveys Level 1 reclaimed water, the sewer line
shall:
(1) Be laid to provide a separation of at least 18 inches
between the bottom of the sewer line and the top of the reclaimed water
distribution pipeline.
(2) Be constructed of AWWA approved water pipe and pressure
tested in place without leakage prior to backfilling, in accordance with the
provisions of the Sewage Collection and Treatment Regulations (9VAC25-790).
(3) Have adequate structural support to prevent damage to the
reclaimed water distribution pipeline.
(4) Have joints placed equidistant and as far as possible from
the reclaimed water distribution pipeline joints.
f. No reclaimed water distribution pipeline shall pass through
or come into contact with any part of a sewer manhole. Distribution pipeline
that conveys Level 1 reclaimed water shall be separated horizontally by at
least two feet from a sewer manhole whenever possible. The distance shall be
measured from the edge of the pipe to the edge of the manhole structure. When
local conditions prohibit this horizontal separation, the manhole shall be of
watertight construction and tested in place.
4. No setback distance is required to any nonpotable water
supply well and no vertical or horizontal separation distances are required
between above-ground reclaimed water pipelines and potable water, sewer or
wastewater pipelines.
5. All reclaimed water outlets shall be of a type, or secured
in a manner, that permits operation by authorized personnel. Public access to
reclaimed water outlets shall be controlled in areas where reclaimed water
outlets are accessible to the public as follows:
a. If quick connection couplers are used on above-ground
portions of the reclaimed water distribution system, they shall differ
materially from those used on the potable water supply.
b. Use of above-ground hose bibs, spigots or other
hand-operated connections that are standard on local potable water distribution
systems shall be prohibited for use on the local reclaimed water distribution
system. If above-ground hose bibs, spigots or other hand-operated connections
are used on the reclaimed water distribution system, they must differ
materially from those used on the local potable water distribution system and
must be clearly distinguishable as reclaimed water connections (i.e., painted
purple, valve operation with a special tool) so as not to be mistaken for potable
water connections. Where below-grade vaults are used to house reclaimed water
connections, the connections in the vault may have standard potable water
distribution system thread and bib size services provided the bib valves can be
operated only by a special tool. The below-grade vaults shall also be labeled
as being part of the reclaimed water distribution system (i.e., painted purple,
labeled).
6. Existing potable water distribution systems, sewer
and wastewater pipelines collection systems, and irrigation
distribution systems may be converted for use as reclaimed water
distribution pipelines systems. The Not less than 90
days prior to such conversions, excluding the conversion of irrigation
distribution systems that are not under common ownership or management with
reclamation systems, SRSs, or reclaimed water distribution systems providing
reclaimed water to the irrigation distribution systems, the following information
shall be submitted to the board for approval of the conversion:
a. A system conversion plan that contains:
a. The (1) Information on the location and
identification of the facilities to be converted;
b. The (2) Information on the location of all
connections to the facilities to be converted;
c. A description of measures to be taken to ensure that
existing connections will be eliminated;
d. Description (3) A description of procedures
to be used to ensure that all connections and cross-connections shall be
eliminated. This may include physical inspections, dye testing, or other
testing procedures;
e. Description of marking, signing, labeling, or color
coding to be used to identify the converted facility as a reclaimed water
transmission facility;
(4) A description of the physical and operational
modifications necessary to convert the existing system to a reclaimed water
distribution system that shall comply with applicable design criteria in
subsections B and C of this section, and the operations and maintenance
requirements of 9VAC25-740-140 D 2;
f. Description (5) A description of cleaning and
disinfection procedures to be followed before the converted facilities will be
placed into operation for reclaimed water distribution. For the conversion
of existing sewer and wastewater collection systems, cleaning and disinfection
of the system shall be conducted in accordance with AWWA standards (ANSI/AWWA
C651-05, effective June 1, 2005). Procedures to dispose of flush water from
cleaning or disinfection shall be those described in the operations and
maintenance manual of the system for the disposal of flush water from
maintenance activities;
g. Assessment (6) An assessment of the physical
condition and integrity of facilities to be converted; and
h. (7) Reasonable assurance that
cross-connections will not result, public health will be protected, and the
integrity of potable water, wastewater, and reclaimed water systems will be
maintained when the conversion is made.
b. An operations and maintenance manual for the system
converted to a reclaimed water distribution system in accordance with 9VAC25-740-140
B, containing at a minimum the items specified in 9VAC25-740-140 D.
7. Tank trucks may be used to transport and distribute
reclaimed water only if the following requirements are met:
a. The truck is not used to transport potable water that is
used for drinking water or food preparation;
b. The truck is not used to transport waters or other fluids
that do not meet the requirements of this chapter, unless the tank has been
evacuated and properly cleaned prior to the addition of the reclaimed water;
c. The truck is not filled through on-board piping or
removable hoses that may subsequently be used to fill tanks with water from a
potable water supply; and
d. The reclaimed water contents of the truck are clearly
identified as nonpotable water on the truck.
8. Reclaimed water distribution systems shall have the
following identification, notification and signage:
a. All reclaimed Reclaimed water piping with
an outer diameter greater than or equal to one inch, installed in-ground after
(effective date of amended regulation) or above-ground shall have display
the words "CAUTION: RECLAIMED WATER - DO NOT DRINK" embossed,
integrally stamped, or otherwise affixed to the piping, and shall be identified
by one or more of the following methods:
(1) Painting the piping purple (Pantone 522) and stamping
the piping with the required caution statement on opposite sides of the pipe,
repeated at intervals of three feet or less.
(2) Using stenciled pipe (1) Stenciling or stamping
the piping with two-inch to three-inch letters on opposite sides of
the pipe, piping, placed at intervals of three to four feet. For pipes
piping less than two inches in and greater than or equal to
one inch outer diameter, lettering shall be at least 5/8 inch, placed on
opposite sides of the pipe, piping and repeated at intervals of
one foot.
(3) (2) Wrapping the piping with purple (Pantone
522) polyethylene vinyl wrap or adhesive tape, placed longitudinally at
three-foot intervals. The width of the wrap or tape shall be at least three
inches, and shall display the required caution statement in either white or
black lettering.
(4) (3) Permanently affixing purple (Pantone
522) vinyl adhesive tape on top of the piping, parallel to the axis of the pipe,
piping, fastened at least every 10 feet to each pipe section, and
continuously for the entire length of the piping. The width of the tape
shall be at least three inches, and shall display the required caution
statement in either white or black lettering.
(4) Using an alternate method that assures the caution
statement will be displayed to provide an equivalent degree of public
notification and protection if approved by the board.
b. Additional methods, if provided, to identify reclaimed
water piping with an outer diameter greater than or equal to one inch (e.g.,
permanently color coding the piping Pantone 522 purple), shall not obscure any
portion of the caution statement required pursuant to subdivision 8 a of this
subsection.
c. Reclaimed water piping with an outer diameter less than
one inch shall require the following:
(1) Where installed in-ground after (effective date of
amended regulation) or above ground, the piping shall be permanently color
coded purple (Pantone 522). Longitudinal purple striping of the piping may be
allowed provided the cumulative width of the stripes is greater than or equal
to 25% of the outer pipe diameter.
(2) Where installed within a building or structure, the
piping shall have in addition to color coding required per subdivision 8 c (1)
of this subsection, the words "CAUTION: RECLAIMED WATER – DO NOT
DRINK" embossed, stenciled, stamped, or affixed with adhesive tape on the
piping, placed on opposite sides of the piping, and repeated at intervals of
one foot. Lettering of the caution statement shall be of a size easily read by
a person with normal vision at a distance of two feet.
b. d. All visible, other
above-ground portions of the reclaimed water distribution system including
reclaimed water piping, valves, outlets (including fire hydrants) and
other appurtenances shall be colored color coded, taped, labeled,
tagged or otherwise marked to notify the public and employees that the source
of the water is reclaimed water, not intended for drinking or food preparation.
For reclaimed water treated to Level 2, such notification shall also inform
employees to practice good personal hygiene for incidental contact with
reclaimed water and the public to avoid contact with the reclaimed water.
c. e. Each mechanical appurtenance of a
reclaimed water distribution system shall be colored purple and legibly marked
"RECLAIMED WATER" to identify it as a part of the reclaimed water
distribution system and to distinguish it from mechanical appurtenances of a
potable water distribution system or a wastewater collection system.
d. Existing underground distribution or collection
pipelines and appurtenances retrofitted for the purpose of distributing
reclaimed water shall be colored coded, taped, labeled, tagged or otherwise
identified as described in subdivisions 8 a, b and c of this subsection. This
identification need not extend the entire length of the retrofitted reclaimed
water distribution system but is required within 10 feet of locations where the
distribution system crosses a potable water supply line or sanitary sewer line.
e. f. Valve boxes for reclaimed water
distribution systems shall be painted purple. Valve covers for reclaimed water
distribution lines shall not be interchangeable with potable water supply valve
covers.
g. Existing potable water distribution systems, sewer or
wastewater collection systems, or irrigation distribution systems that are
converted to reclaimed water distribution systems in accordance with
subdivision 6 of this subsection after (effective date of amended regulation),
shall be retrofitted to meet identification, notification, and signage
requirements of subdivision 8 of this subsection with the following exceptions:
(1) For converted systems requiring the submission of a
conversion plan and an operations and maintenance manual in accordance with
subdivision 6 of this subsection, existing in-ground converted piping shall be
retrofitted to a distance of not less than 10 feet from locations where the
piping crosses or is crossed by a potable water supply line or sanitary sewer
line.
(2) For all other converted systems, identification,
notification, and signage requirements specified in subdivision 8 of this
subsection for in-ground piping shall not apply.
9. All reclaimed water distribution systems shall be
maintained to minimize losses and to ensure safe and reliable conveyance of
reclaimed water such that the reclaimed water will not be degraded below the
standards, excluding CAT standards, required for the intended reuse or
reuses in accordance with 9VAC25-740-90.
C. Storage requirements.
1. To ensure reliable reclamation system operation in
accordance with the requirements of this chapter, all reclamation systems shall
have the ability to implement one or more of the following options:
a. Store reclaimed water;
b. Discharge reclaimed water to another permitted reuse
system, if applicable;
c. Discharge reclaimed water to surface waters of the state
under a VPDES permit;
d. Suspend all or a portion of water reclamation for planned
periods; or
e. In the case of a satellite reclamation system, discharge
reclaimed water into the sewage collection system from which it received water
for reclamation.
2. Storage for reclaimed water shall be required only when subdivision
1 b, c, or d subdivision 1 b, c, or d of this subsection or, as
applicable, subdivision 1 e of this subsection are not available or approved by
the board.
3. Separate, off-line storage shall be provided for reject
water of the reclamation system unless the reject water can be diverted to
another permitted reuse system, discharged to surface waters of the state under
a VPDES permit, returned directly to an appropriate point of treatment in the
reclamation system, or in the case of a satellite reclamation system, sent to
the sewage collection system from which the reclamation system received water
for reclamation. Where reject water is stored, provisions shall be incorporated
into the design of the reclamation system to distribute the reject water from
storage to other parts of the reclamation system for additional or repeated
treatment.
4. Storage for reject water may also be used for emergency
storage to ensure Reliability Class I reliability of the
reclamation system in accordance with 9VAC25-740-130.
5. Reject water and reclaimed water may be stored in
water-tight tanks placed above-ground or in-ground. Labeling of tanks used for
reject water storage, system storage or nonsystem storage shall be in
accordance with 9VAC25-740-160 B, and shall, at a minimum, identify the
contents of each tank as either reject water or reclaimed water.
6. For all impoundments or ponds that are used for reject
water storage or system storage, with the exception of impoundments and ponds
specified in subdivision 7 of this subsection, the following are required:
a. A minimum two-foot freeboard shall be maintained at all
times. Any emergency discharge or overflow device and the disposition of the
overflow discharge shall be identified in the engineering report.
b. There shall be a minimum two-foot separation distance
between the bottom of the impoundment or pond and the seasonal high water
table.
c. The impoundment or pond shall have a properly designed and
installed synthetic liner of at least 20 mils thickness or a compacted soil
liner of at least one foot thickness. Synthetic liners shall be installed in
accordance with the manufacturer's specifications and recommendations. The soil
liner shall be composed of separate lifts not to exceed six inches. The maximum
coefficient of permeability for the synthetic and soil liners shall not exceed
1x10-6 cm/sec and 1x10-7 cm/sec, respectively. A plan of
quality assurance and quality control which substantiates the adequacy of the
liner and its installation shall be included in or shall accompany the
preliminary engineering report or supporting documentation for the CTC.
Documentation of quality assurance and quality control activities on liner
installation along with permeability test results, shall be submitted with the
statement of construction completion to the board.
d. If the requirements of subdivision subdivision
6 b or c of this subsection cannot be met, the board may allow use of the
impoundment or pond for storage provided that a groundwater monitoring plan for
the facility is submitted to the board for review and approval. The plan shall
identify the direction of groundwater flow and the proposed location and depth
of groundwater monitoring wells at the location of the impoundment or pond,
parameters to be monitored, a monitoring schedule, and procedures for proper
sample collection and handling.
e. The design of the impoundment or pond shall prevent the
entry of surface water or storm water runoff from outside the facility
embankment or berm.
f. Where the embankment of the impoundment or pond is composed
of soil, the embankment shall have:
(1) A top width of at least five feet;
(2) Interior and exterior slopes no steeper than one foot
vertical to three feet horizontal unless alternate methods of slope
stabilization are used;
(3) Shallow-rooted vegetative cover or other soil
stabilization to prevent erosion; and
(4) Erosion stops and water seals installed on all piping that
penetrates the embankment.
g. There shall be routine maintenance of the impoundment or
pond liner, embankments and access areas.
h. Impoundments and ponds shall be sited to avoid areas of
uneven subsidence, sinkholes, or unstable soils unless provisions are made for
their correction. Results from field and laboratory tests from an adequate
number of test borings and soil samples shall be the basis for computations
pertaining to permeability and stability analyses.
i. Impoundments or ponds shall not be located on a floodplain
unless protected from inundation or damage by a 100-year frequency flood event.
j. There shall be a minimum setback distance measured
horizontally from the perimeter of the storage impoundment or pond to potable
water supply wells and springs, and public water supply intakes, of 100 feet
for storage of Level 1 reclaimed water and 200 feet for storage of Level 2
reclaimed water or reject water.
7. Reject water storage and system storage impoundments or
ponds that exist upon October 1, 2008, shall be exempt from the design,
construction, and operation requirements specified in subdivision 6 of this
subsection until such time these facilities are modified or expanded, or unless
they have failed to comply with other existing regulatory or permitting
requirements.
8. The capacity of reject water storage and system storage
facilities, including impoundments, ponds or tanks, shall be as follows:
a. For reject water, the capacity of the storage facility
shall, at a minimum, be the volume equal to the average daily permitted designated
design flow of the reclamation system unless other options exist for
immediate disposal or retreatment of the reject water in addition to storage.
b. For reclaimed water, the capacity of the storage facility
shall be determined by the seasonal variability in demand, intended reuses with
intermittent, variable demand, such as fire protection or fighting; and the
availability of other options to generate or manage reclaimed water as
specified in subdivision 1 of this subsection.
(1) Where there is no or minimal seasonal variability in
demand and no other options are available for alternative generation or
management of all or a portion of the reclaimed water, the capacity of the
storage facility shall, at a minimum, be the volume equal to three times that
portion of reclaimed water average daily the reclamation system
designated design flow for which no other options to generate or manage the
reclaimed water from the reclamation system are permitted.
(2) Where there is seasonal variability in demand and no other
options are available for alternative generation or management of all or a
portion of the reclaimed water during periods of low seasonal demand, storage
facilities shall have sufficient storage capacity to assure the retention of
the reclaimed water under conditions and circumstances that preclude reuse. The
methods, assumptions and calculations used to determine the system storage
requirements shall be provided and justified in the preliminary engineering
report or supporting documentation for the CTC. Analytical means of determining
system storage requirements, such as water balance calculations or computer
hydrological programs, shall be used and shall account for all water inputs
into the system. Analysis shall be based on site-specific data. Irrigation
efficiencies or rainfall efficiencies shall not be used in storage volume
determinations.
9. Requirements specified in subdivision 6 of this subsection
shall not apply to lakes, impoundments or ponds used for nonsystem
storage with the exception of those specified in subdivision 11 of this
subsection.
10. Landscape impoundments may also be used for nonsystem
storage of reclaimed water prior to another subsequent reuse, such as
irrigation.
11. Impoundments or ponds used for nonsystem storage of
reclaimed water, including landscape impoundments, for subsequent irrigation
reuse on sites under common ownership or management with the reclamation system
or satellite reclamation system that provides reclaimed water to the sites,
shall comply with the design, construction and operation requirements specified
in subdivision 6 of this subsection.
12. For lakes, impoundments or ponds used for nonsystem
storage of reclaimed water, the following setback distances shall apply:
a. There shall be a 50-foot minimum setback distance measured
horizontally from the perimeter of the lake, impoundment or pond to
property lines.
b. For an impoundment or pond with a liner meeting the
requirements specified in subdivision 6 c of this subsection, there shall be a
minimum setback distance measured horizontally from the perimeter of the
storage impoundment or pond to potable water supply wells and springs, and
public water supply intakes, of 100 feet for storage of Level 1 reclaimed water
and 200 feet for storage of Level 2 reclaimed water.
c. For an unlined impoundment or pond, there shall be a
minimum setback distance measured horizontally from the perimeter of the
storage impoundment or pond to potable water supply wells and springs, and
public water supply intakes, of 200 feet for storage of Level 1 reclaimed water
and 400 feet for storage of Level 2 reclaimed water.
13. Where more than one setback distance applies to storage
for reclaimed water or reject water, the greater setback distance shall govern.
14. All Reclaimed water system storage
facilities, including landscape impoundments used for nonsystem storage,
shall be designed and operated to prevent a discharge to surface waters of the
state except in the event of a storm greater than the 25-year 24-hour storm. Reclaimed
water nonsystem storage facilities, including landscape impoundments used for
nonsystem storage, shall be designed and operated to prevent a discharge to
surface waters of the state, except in the event of a storm greater than the
10-year, 24-hour storm.
15. Permittees shall maintain current inventories of reject
water storage, system storage and nonsystem storage facilities located within
the service area of the RWM plan. An inventory or a revised inventory shall be
submitted as part of the RWM plan in the permit application. For the addition
of new storage facilities to an inventory after permit issuance, the permittee
shall submit to the board an amended inventory at least 30 days before
reclaimed water will be introduced into the new storage facilities. An
inventory of reject water storage, system storage and nonsystem storage
facilities shall include the following:
a. Name or identifier for each storage facility;
b. Location of each storage facility (including latitude and
longitude);
c. Function of each storage facility (i.e., reject water
storage, system storage or nonsystem storage);
d. Type of each storage facility (i.e., covered tank,
uncovered tank, lined pond, unlined pond, etc.); and
e. Location (latitude and longitude) and distance of the
nearest potable water supply well and spring, and public water supply intake,
to each storage facility within 450 feet of that facility.
16. Storage requirements as specified in this subsection shall
not apply to reclaimed water storage facilities provided at the site of an
industrial end user where such facilities are regulated by an existing water
permit issued by the board to the industrial end user, or the industrial end
user is also the generator of reclaimed water stored in the facilities and is
excluded under 9VAC25-740-50 A.
9VAC25-740-120. Construction requirements.
A. Preliminary engineering report and pilot study.
1. A preliminary engineering report shall be submitted
for new water reclamation projects and for modification or expansion of
existing reclamation systems, satellite reclamation systems SRSs,
and reclaimed water distributions systems. At the request of the applicant or
permittee, the board may waive the need for a preliminary engineering report or
portions of a preliminary engineering report for modification or expansion of
an existing reclamation system, satellite reclamation system SRS,
or reclaimed water distributions system based on the scope of the proposed
project.
2. A pilot study shall be required where treatment is
proposed for a reclamation system of an IPR project.
a. The pilot study shall demonstrate the ability of
selected treatment processes to:
(1) Meet, at a minimum, the reclaimed water standards
prescribed for the IPR project in accordance with 9VAC25-740-90 C, and
(2) Generate a consistent and reliable supply of reclaimed
water for the IPR project.
b. The pilot study shall quantify and characterize the
quality of source water provided for reclamation and reclaimed water generated
by the treatment processes of the reclamation system for a period of not less
than 365 days unless reduced by the board in accordance with subdivision 2 d of
this subsection.
c. At the request of the applicant or permittee, the board
may reduce the pilot study duration specified in subdivision 2 b of this
subsection or the pilot study scope where the following are met:
(1) The applicant or permittee provides a detailed plan of
study for the board's review and approval before initiating the pilot study,
and
(2) The detailed plan of study justifies to the
satisfaction of the board that a pilot study of shorter duration or reduced
scope will be sufficient to achieve the requirements of subdivision 2 a of this
subsection. For the purpose of reducing the duration or scope of a pilot study,
results of previous pilot studies and operating experiences of similar water
reclamation and IPR projects may be used as part of the demonstration required
pursuant to subdivision 2 a of this subsection.
d. Results of the pilot study shall be submitted to the
board for review.
B. Certificate to construct and certificate to operate.
1. No owner shall cause or allow the construction, expansion
or modification of a reclamation system or satellite reclamation system SRS
except in compliance with a certificate to construct (CTC) from the board
unless otherwise provided for by this chapter. Furthermore, no owner shall
cause or allow any reclamation system or satellite reclamation system SRS
to be operated except in compliance with a certificate to operate (CTO) issued
by the board, which authorizes the operation of the reclamation system or satellite
reclamation system SRS unless otherwise provided for by this
chapter. The need for a CTC and CTO for modifications shall be determined by
the board on a case-by-case basis. Conditions may be imposed on the issuance of
any CTC or CTO, and no reclamation system or satellite reclamation system
SRS may be constructed, modified, or operated in violation of these
conditions.
2. CTC.
a. Upon approval of the proposed design by the board,
including any submitted plans and specifications, if required, the board will
issue a CTC to the owner of such approval to construct or modify his
reclamation system or satellite reclamation system SRS in
accordance with the approved plans and specifications.
b. Any deviations from the approved design or the submitted
plans and specifications significantly affecting hydraulic conditions (flow
profile), unit operations capacity, the functioning of the reclamation system
or satellite reclamation system SRS, or the quality of the
reclaimed water, must be approved by the board before any such changes are
made.
3. CTO.
a. Upon completion of the construction or modification of the
reclamation system or satellite reclamation system SRS, the owner
shall submit to the board a Statement of Construction Completion signed by a
licensed professional engineer stating that the construction work has been
completed in accordance with the approved plans and specifications, or revised
only in accordance with subdivision 2 b of this subsection. This statement
shall be based upon inspections of the reclamation system or satellite
reclamation system SRS during and after construction or
modifications that are adequate to ensure the truth of the statement.
b. Upon receipt of the construction completion statement, the
board may issue a final CTO. However, the board may delay the granting of the
CTO pending inspection, or satisfactory evaluation of reclaimed water test
results, to ensure that the work has been satisfactorily completed.
c. A conditional CTO may be issued specifying final approval
conditions, with specific time periods for completion of unfinished work,
revisions to the operations and maintenance manual, or other appropriate items.
The board may issue a conditional CTO to owners of a reclamation system or satellite
reclamation system SRS for which the required information for
completion of construction has not been received. Such CTOs will contain
appropriate conditions requiring the completion of any unfinished or incomplete
work including subsequent submission of the statement of completion of
construction.
d. Consideration will be given to issuance of an An
interim CTO may be issued to individual unit operations of the treatment
system so as to allow utilization of these unit operations prior to completion
of the total project. A final CTO shall be issued upon verification that the
requirements of this chapter have been complied with.
e. Within 30 days after placing a new or modified reclamation
system or satellite reclamation system SRS into operation, the board
may require reclaimed water produced should by the system to
be sampled and tested in a manner sufficient to demonstrate compliance with
approved specifications and permit requirements. The board shall be notified of
the time and place of the tests, and shall be sent the results of the tests for
evaluation as part of the final CTO.
f. Within 90 days of placing the new or modified reclamation
system or satellite reclamation system SRS into operation, the
owner shall submit a new or revised operations and maintenance manual for the water
reclamation system, satellite reclamation system SRS, or both, as
applicable, to be if covered by the same permit. The manual shall
contain information as specified in 9VAC25-740-140.
g. The board may amend or reissue a CTO where there is a
change in the manner of treatment or the source of water that is reclaimed at
the permitted location, or for any other cause incidental to the protection of
the public health and welfare, provided notice is given to the owner.
9VAC25-740-130. Operator requirements and system reliability.
A. Operator requirements. In accordance with the Virginia
Board for Waterworks and Wastewater Works Operators Regulations (18VAC160-20),
each reclamation system shall be assigned a classification based on the
treatment processes used to reclaim water and the design capacity of the
facility. The classification of both the reclamation system and the operator in
responsible charge shall be the same as that specified in the Sewage Collection
and Treatment Regulations (9VAC25-790) for sewage treatment works with similar
treatment processes and design capacities. The reclamation system shall be
manned while in operation and under the supervision of the operator in
responsible charge unless the system is equipped with remote monitoring and, as
applicable, automated diversion of substandard or reject water in accordance
with 9VAC25-740-70 C 1 a.
B. Reliability Class I reliability as defined
in 9VAC25-740-10 is required for Level 1 reclamation systems and,
satellite reclamation systems, and for pump stations considered part of
these systems, unless there is a permitted alternate treatment or,
discharge or disposal system available that has with
sufficient capacity to handle any reclaimed water flows that do not meet the
reclaimed water standards of this chapter or performance criteria established
in the operations and maintenance manual.
C. Reliability Class I, as defined in 9VAC25-740-10, is
required for a reclamation system identified as a component of an IPR project
in accordance with 9VAC25-740-100 D 1, including pump stations that are part of
the reclamation system. No exception or variance shall be granted for this
requirement.
C. D. For independent reclamation systems and
systems consisting of an industrial wastewater treatment works and reclamation
system, the applicability of Reliability Class I reliability
requirements as specified in the Sewage Collection and Treatment Regulations
(9VAC25-790), shall be determined by the board for each proposed or existing
system.
D. E. The board may approve alternative
measures to achieve Reliability Class I reliability specified in
the Sewage Collection and Treatment Regulations (9VAC25-790) and this
chapter if the applicant or permittee can demonstrate in the engineering
report, using accepted and appropriate engineering principles and practices,
that the alternative measures will achieve a level of reliability equivalent to
Reliability Class I reliability.
9VAC25-740-140. Operations and maintenance.
A. The permittee shall develop and submit to the board an
operations and maintenance manual in accordance with 9VAC25-740-120 B 3 f for
each reclamation system, satellite reclamation system SRS, or
combination of these facilities covered by the same permit. The permittee shall
maintain the manual and any changes in the practices and procedures followed by
the permittee shall be documented and submitted to the board within 90 days of
the effective date of the changes.
B. For each reclaimed water distribution system, the
permittee shall develop an operations and maintenance manual to be made
available at a location central to the system. The permittee shall maintain the
manual and include any changes in the practices and procedures followed by the
permittee in the manual. The operations and maintenance manual for a reclaimed
water distribution system may be included in the operations and maintenance
manual described in subsection A of this section where the reclaimed water
distribution system and a reclamation system or satellite reclamation system
SRS, or all these facilities are covered by the same permit.
C. For a reclamation system authorized under the permit of a
wastewater treatment works that provides flow to the reclamation system, the
operations and maintenance manual of the reclamation system may be made a part
of the operations and maintenance manual for the wastewater treatment works.
D. The operations and maintenance manual is a set of detailed
instructions developed to facilitate the operator's understanding of
operational constraints and maintenance requirements for the reclamation
system, satellite reclamation system SRS, or reclaimed water
distribution system; and the monitoring and reporting requirements specified in
the permit issued for each system. The scope and content of the manual will be
determined by the complexity of the system or systems described by the manual.
1. For a reclamation system or satellite reclamation system
SRS, the operations and maintenance manual shall, at a minimum, contain
the following:
a. A description of unit treatment processes within the
reclamation system or satellite reclamation system SRS and
step-by-step instructions for the operation of these processes;
b. Routine maintenance and schedules of maintenance for each
unit treatment process in the system;
c. The criteria used to make continuous determinations of the
acceptability of the reclaimed water being produced and shall include set
points for parameters measured by continuous on-line monitoring equipment;
d. Descriptions of sampling and monitoring procedures and
record keeping that comply with the requirements of this chapter and any
applicable permit conditions;
e. The physical steps and procedures to be followed by the
operator when substandard water is being produced, including resampling and
operational review in accordance with 9VAC25-740-70 C;
f. The physical steps and procedures to be followed by the
operator when the treatment works returns to normal operation and acceptable
quality reclaimed water is again being produced;
g. Procedures to be followed during a period when an operator
is not present at the treatment works;
h. Information necessary for the proper management of sludge
or residuals from reclamation treatment that is not specifically requested in
the application for a VPDES or VPA permit; and
i. A contingency plan to eliminate or minimize the potential
for untreated or inadequately treated water to be delivered to reuse areas. The
plan shall, as applicable, reference and coordinate with the education and
notification program specified in 9VAC25-740-170 A for any release of untreated
or inadequately treated water to the reclaimed water distribution system.
2. For a reclaimed water distribution system, the operations
and maintenance manual shall, at a minimum, contain the following:
a. A map of the distribution system, a description of
all components within the distribution system, and step-by-step
instructions for the operation of specific mechanical components;
b. Routine and unplanned inspection of the distribution
system, including required inspections for the cross-connection and backflow
prevention program as specified in 9VAC25-740-100 C 1 g;
c. Routine maintenance and schedules of maintenance for all
components of the distribution system. Maintenance shall include, but is not be
limited to, initial and routine flushing of the distribution system, measures
to prevent or minimize corrosion, fouling and clogging of distribution lines;
and detection and repair of broken distribution lines, flow meters or pumping
equipment; and
d. Procedures to handle:
(1) Handle and dispose of any wastes or wastewater
generated by maintenance of the distribution system in a manner protective of
the environment.;
(2) Prevent the discharge of reclaimed or flush water from
distribution system maintenance activities to:
(a) Storm drains;
(b) State waters unless otherwise authorized by the board;
and
(c) Sanitary sewers unless allowed under local sewer use
ordinances and authorized by the board; and
(3) Collect and, as applicable, retreat reclaimed water or
treat flush water from distribution system maintenance activities for a
subsequent reuse or use approved by the board.
E. The permittee shall review and revise the operations and
maintenance manual, as needed and appropriate, to ensure that the manual
contains procedures and criteria addressing the requirements of subsection D of
this section for satisfactory system performance. Any revision to the manual
shall be reviewed and approved by the board.
F. The permittee of a reclamation system, satellite
reclamation system SRS, or reclaimed water distribution system shall
be responsible for making the facility protective of the environment and public
health at all times, including periods of inactivation or closure. Included in
the operations and maintenance manual for the reclamation system, satellite
reclamation system SRS, or reclaimed water distribution system, the
permittee shall submit a plan for inactivation or closure of the facility,
specifying what steps will be taken to protect the environment and public
health.
G. Where a reclamation system or satellite reclamation
system and a bulk irrigation reuse site or sites are is under
common ownership or management with a reclamation system or SRS that
generates reclaimed water applied to the site, the operations and maintenance
manual for the reclamation system or satellite reclamation system SRS
shall include the following:
1. Measurements and calculations used to determine
supplemental irrigation rates of reclaimed water for the irrigation reuse
sites;
2. Operating procedures of the irrigation system;
3. Routine maintenance required for the continued design
performance of the irrigation system and reuse sites;
4. Identification and routine maintenance of reclaimed water
storage facilities dedicated to bulk irrigation reuse;
5. Schedules for harvesting and crop removal at the irrigation
reuse sites;
6. An inventory of spare parts to be maintained for the
irrigation system; and
7. Any other information essential to the operation of the
irrigation system and reuse sites in accordance with the requirements of this
chapter.
9VAC25-740-150. Management of pollutants from significant
industrial users.
A. A reclamation system that receives effluent source
water from a wastewater treatment works having significant industrial
users (SIUs) as defined by the VPDES Permit Regulation (9VAC25-31-10), SIUs
shall not be permitted to produce reclaimed water treated to meeting
Level 1 or for reuse in areas accessible to the public or where human
contact with the reclaimed water is likely standards, unless the
wastewater treatment works providing effluent to the reclamation system is:
1. A The wastewater treatment works providing source
water to the reclamation system is a publicly owned treatment works (POTW)
as defined in the VPDES Permit Regulation (9VAC25-31-10), that and
has a pretreatment program required by and developed, approved and
maintained in accordance with procedures described in Part VII of
the VPDES Permit Regulation (9VAC25-31-730 through 9VAC25-31-900 et
seq.); or
2. Any other POTW or privately owned treatment works as
defined in the VPDES Permit Regulation (9VAC25-31-10), with either a VPA or
VPDES permit that has developed a program to manage pollutants of concern
discharged by SIUs, equivalent to a pretreatment program required in the VPDES
Permit Regulation for qualifying POTWs. The reclamation system has
evaluated source water from the treatment works for pollutants of concern
discharged by SIUs to the treatment works, and has confirmed that such
pollutants shall not interfere with the ability of the wastewater treatment
works to produce source water suitable for the production of reclaimed water
meeting Level 1 standards and any other standards required in accordance with
9VAC25-740-70 D. All such evaluations by the reclamation system shall be
submitted to the board for review and approval, and shall be repeated for each
new SIU that proposes to discharge to the treatment works prior to commencing
such discharge. The reclamation system shall maintain a current inventory of
SIUs discharging to the treatment works.
B. The permittee of a reclamation system authorized to
produce reclaimed water treated to Level 1 or for reuse in areas accessible
to the public or where human contact is likely, shall establish a
contractual agreement with all wastewater treatment works providing effluent
or source water to the reclamation system unless the reclamation system
and the treatment works are authorized by the same permit. The purpose
of the contractual agreement shall be to ensure that reclaimed water discharged
from the reclamation system is safe for use in areas accessible to the public
or where human contact is likely. Prior to The contractual agreement
shall, at a minimum, require the treatment works to notify the reclamation
system of all SIUs that discharge to the treatment works. Upon execution of
the contractual agreement, a draft copy of the contract agreement
shall be provided to the Board for review and approval. A contractual
agreement will not be required where the permittee of the reclamation system is
also the permittee of the wastewater treatment system that provides effluent or
source water to the reclamation system board.
C. A satellite reclamation system (SRS) that receives
municipal wastewater or sewage from a sewage collection system pipeline with
contributions from SIU discharges, excluding any SIUs whose discharge has no
potential to reach the SRS intake, shall not be permitted to produce reclaimed
water meeting Level 1 standards, unless the SRS has evaluated pollutants of
concern discharged by the SIUs and has confirmed that such pollutants shall not
interfere with the ability of the SRS to produce reclaimed water meeting Level
1 standards and any other standards required in accordance with 9VAC24-740-70
D. All such evaluations by the SRS shall be submitted to the board for review
and approval, and shall be repeated for each new SIU that proposes to discharge
to the sewage collection system and whose discharge has the potential to reach
the SRS intake prior to commencing such discharge. The SRS shall maintain a
current inventory of all SIUs that discharge pollutants of concern to the
sewage collection system capable of reaching the intake of the SRS.
D. The permittee of a SRS authorized to produce reclaimed
water treated to Level 1 shall establish a contractual agreement with the
sewage collection system providing sewage to the SRS. The contractual agreement
shall, at a minimum, require the sewage collection system to notify the SRS of
all SIUs that discharge to the sewage collection system. Upon execution of the
contractual agreement, a copy of the agreement shall be provided to the board.
E. Any VPDES permitted treatment works with SIUs that
provides source water for reclamation and subsequent indirect potable reuse shall
have the following:
1. For publicly owned treatment works, a pretreatment
program where required by the VPDES Permit Regulation or deemed necessary by
the board in accordance with procedures described in Part VII (9VAC25-31-730 et
seq.) of the VPDES Permit Regulation.
2. For all other treatment works, a program equivalent to a
pretreatment program as described in Part VII (9VAC25-31-730 et seq.) of the
VPDES Permit Regulation, if deemed necessary by the board.
9VAC25-740-160. Access control and advisory signs.
A. There shall be no uncontrolled public access to
reclamation systems, satellite reclamation systems SRSs, and
system storage facilities. Access to any wastewater treatment works directly
associated with a reclamation system or satellite reclamation system SRS
shall be controlled in accordance with the Sewage, Collection and Treatment
Regulations (9VAC25-790). System storage ponds shall be enclosed with a fence
or otherwise designed with appropriate features to discourage the entry of
animals and unauthorized persons.
B. Where advisory signs or placards are required as described
in subsections C and D of this section or 9VAC25-740-110 C 5 for
above-ground storage facilities, each sign shall state, at a minimum,
"CAUTION: RECLAIMED WATER – DO NOT DRINK" and have the equivalent
standard international symbol for nonpotable water. The size of the sign and
lettering used shall be such that it can be easily read by a person with normal
vision at a distance of 50 feet. Alternate signage and wording that assures an
equivalent degree of public notification and protection may be accepted by the
board.
C. For all reuses of reclaimed water treated to Level 2, fencing
around the site boundary is not required but public access shall be
restricted and advisory. Advisory signs shall be posted around
reuse areas or reuse site boundaries. The advisory signs, and
shall additionally state the nature of the reuse and no trespassing. Fencing
around the site boundary is not required.
D. Advisory For all reuses of reclaimed water
treated to Level 1, advisory signs or placards for all reuses of
reclaimed water treated to Level 1 shall be posted within and at the
boundaries of reuse areas. The advisory signs or placards shall additionally
state the nature of the reuse. Examples of some notification methods that may
be used by permittees include posting advisory signs at entrances to
residential neighborhoods where reclaimed water is used for landscape
irrigation and posting advisory signs at the entrance to a golf course and at
the first and tenth tees.
E. Advisory signs shall be posted adjacent to impoundments or
ponds, including landscape impoundments, used for nonsystem storage of
reclaimed water.
F. For industrial reuses, advisory signs shall be posted
around those areas of the industrial site where reclaimed water is used and at
the main entrances to the industrial site to notify employees and the visiting
public of the reclaimed water reuse. Access control beyond what is normally
provided by the industry is not required.
9VAC25-740-170. Use area requirements.
A. Education and notification program. An education and
notification program (program) shall be developed and submitted with the RWM
Plan in accordance with 9VAC25-740-100 C 1 for reuses that require Level
1 reclaimed water, will be in areas accessible to the public, or are likely to
have human contact. For indirect potable reuse (IPR) projects that do not
require a RWM plan, the program shall be submitted with the application to
permit the project in accordance with 9VAC25-740-100 D. The program shall
be the responsibility of the permittee to implement.
1. Education. The purpose of the education component of
the program is to ensure that shall:
a. For end users and the public likely to have contact
with reclaimed water, provide information:
(1) To ensure that they are informed of the origin,
nature, and characteristics of the reclaimed water; the manner in which the
reclaimed water can be used safely; and uses for which the reclaimed water is
prohibited or limited. The program shall describe all modes of communication
to be used to educate and inform, including, but not limited to, meetings,
distribution of written information, the news media (i.e., news papers, radio,
television or the internet), and advisory signs as described in 9VAC25-740-160.
Program education for;
(2) To individual end users shall be, at
the time of their initial connection to the reclaimed water distribution system
and, which may be provided in the service agreement or contract
with the permittee established in accordance with 9VAC25-740-100 C 1 d.,
and
For nonbulk irrigation reuse of reclaimed water not treated
to achieve BNR, education of individual end users shall be, at a minimum,
annually (3) To individual end users, annually or more often after
the reclaimed water distribution system is placed into operation for nonbulk
irrigation reuse of reclaimed water not treated to achieve biological nutrient
removal (BNR).
b. For IPR projects, provide information to generators of
source water for reclamation and IPR that are other than SIUs. This information
shall describe methods and practices to avoid or reduce the introduction of
contaminants from domestic and commercial sources into the wastewater
collection system prior to reclamation and shall be provided to individual
generators annually or more often after the reclamation system is placed into
operation.
c. Describe all modes of communication to be used to
educate and inform, including, but not limited to, meetings, distribution of
written information, the news media (i.e., newspapers, radio, television, or
the Internet), and advisory signs as described in 9VAC25-740-160.
2. Notification. The notification component of the program
shall contain procedures to notify end users and the affected public of treatment
failures at the reclamation system discharges of substandard reclaimed
water to reuse that can adversely impact human health, or result in the
loss of reclaimed water service due to planned or unplanned causes.
a. Notifications required for discharge of substandard
reclaimed water to reuse.
(1) For reuses other than IPR. Where treatment of the
reclaimed water fails more than once during a seven-day period to comply with
Level 1 disinfection or other standards developed in accordance with 9VAC25-740-70
D or 9VAC25-740-70 E for the protection of human health, and the non-compliant
reclaimed water has been discharged to the a reclaimed water
distribution system or directly to a reuse, the permittee shall notify
the end user of the treatment failures and advise the end user of precautions
to be taken to protect public human health when using the
reclaimed water in areas accessible to the public or where human contact with
the reclaimed water is likely. These precautions shall be implemented for a period
of seven days or greater depending on the frequency and magnitude of the
treatment failure.
(2) For IPR. Where treatment of the reclaimed water fails
at any time to comply with standards specified in 9VAC25-740-90 C and is
discharged to the water supply source (WSS), the permittee shall notify the
owner or management of the waterworks that withdraws water from the affected
WSS of the time, duration, volume, and pollutant characteristics of the
noncompliant discharge within a period of less than or equal to half the
shortest determined travel time between the reclamation system discharge and
the waterworks intake, but in no case greater than eight hours. Such
notification shall be implemented for a period of seven days or greater
depending on the frequency and magnitude of the noncompliant reclaimed water
discharge and the ability of subsequent multiple barriers as described in the
permit application of the IPR project to mitigate the impact of the discharge
on the WSS.
b. Notifications required for loss of service.
(1) For reuses other than IPR. Where reclaimed water
service to end users will be interrupted due to planned causes, such as
scheduled maintenance or repairs, the permittee shall provide advance
notice to end users of the anticipated date and duration of the interrupted
service. Where reclaimed water service to end users is disrupted by unplanned
causes, such as an upset at the reclamation system, the permittee shall notify
end users and the affected public of the disrupted service if it can not or
will not be restored within eight hours of discovery.
(2) For IPR. Where the discharge of the reclamation system
to the WSS will be interrupted due to planned causes, such as scheduled
maintenance or repairs, the permittee shall provide advance notice to the owner
or management of the waterworks that withdraws water from the WSS of the
anticipated date, duration, and cause for the interrupted discharge. Where the
discharge of the reclamation system is interrupted by unplanned causes, such as
an upset at the reclamation system, the permittee shall notify the waterworks
owner or management of the interrupted discharge if the discharge cannot or
will not be restored within eight hours of initial occurrence.
c. The notification component of the program shall describe
all modes of communication that may be used to provide the notifications
specified in subdivisions 2 a and b of this subsection. Modes of communication
may include, but are not limited to, those described in subdivision 1 c of this
subsection for the education component of the education and notification
program.
B. Reclaimed water shall be used in a manner that is
consistent with this chapter and with the conditions of the VPDES or VPA
permit, such that public health and the environmental shall be protected.
C. Reclaimed water delivered to end users shall be of
acceptable quality comply with reclaimed water standards required
for the intended reuses at the point of delivery to end users.
D. There shall be no nuisance conditions resulting from the
distribution, use, or storage of reclaimed water.
E. For all irrigation reuses of reclaimed water, the
following shall be required:
1. There shall be no application of reclaimed water to the
ground when it is saturated, frozen or covered with ice or snow, and during
periods of rainfall.
2. The chosen method of irrigation shall minimize human
contact with the reclaimed water.
3. Reclaimed water shall be prevented from coming into contact
with drinking fountains, water coolers, or eating surfaces.
F. For bulk irrigation reuse of reclaimed water, the
following shall be required:
1. Irrigation systems shall be designed, installed and
adjusted to:
a. Provide uniform distribution of the reclaimed water over
the irrigation site;
b. Prevent ponding or pooling of reclaimed water at the
irrigation site;
c. Facilitate maintenance and harvesting of irrigated areas
and precludes damage to the irrigation system from the use of maintenance or
harvesting equipment;
d. Prevent aerosol carry-over from the irrigation site to
areas beyond the setback distances described in subsection H of this section;
and
e. Prevent clogging from algae or suspended solids.
2. All pipes, pumps, valve boxes and outlets of the irrigation
system shall be designed, installed, and identified in accordance with
9VAC25-740-110 B.
3. Any reclaimed water runoff shall be confined to the
irrigation reuse site unless authorized by the board.
G. Overspray of surface waters, including wetlands, from
irrigation or other reuses of reclaimed water is prohibited.
H. Setback distances for irrigation reuses of reclaimed
water.
1. For sites irrigated with reclaimed water treated to Level
1, the following setback distances provided in Table 170-H1 are
required:
a. Potable water supply wells and springs, and public water
supply intakes - 100 feet
b. Nonpotable water supply wells - 10 feet
c. Limestone rock outcrops and sinkholes - 50 feet
|
Table 170-H1
Setback Distances for Irrigation Reuses of Reclaimed Water Treated to Level 1
|
|
Potable water supply wells and springs and public water
supply intakes
|
100 feet
|
|
Nonpotable water supply wells
|
10 feet
|
|
Limestone rock outcrops and sinkholes
|
50 feet
|
2. For sites irrigated with reclaimed water treated to Level
1, no setback distances are required from occupied dwellings and outdoor
eating, drinking and bathing facilities. However, aerosol formation shall be
minimized within 100 feet of occupied dwellings and outdoor eating, drinking
and bathing facilities through the use of low trajectory nozzles for spray
irrigation, above-ground drip irrigation, or other means.
3. For sites irrigated with reclaimed water treated to Level
2, the following setback distances provided in Table 170-H2 are
required:
a. Potable water supply wells and springs, and public water
supply intakes - 200 feet
b. Nonpotable water supply wells - 10 feet
c. Surface waters, including wetlands - 50 feet
d. Occupied dwellings - 200 feet
e. Property lines and areas accessible to the public - 100
feet
f. Limestone rock outcrops and sinkholes - 50 feet
|
Table 170-H2
Setback Distances for Irrigation Reuses of Reclaimed Water Treated to Level 2
|
|
Potable water supply wells
and springs and public water supply intakes
|
200 feet
|
|
Nonpotable water supply wells
|
10 feet
|
|
Surface waters, including wetlands
|
50 feet
|
|
Occupied dwellings
|
200 feet
|
|
Property lines and areas accessible to the public
|
100 feet
|
|
Limestone rock outcrops and sinkholes
|
50 feet
|
4. For sites irrigated with reclaimed water treated to Level
2, the setback distances may be reduced as follows:
a. Up to but not exceeding 50% from occupied dwellings and
areas accessible to the public if it can be demonstrated that alternative
measures shall be implemented to provide an equivalent level of public health
protection. Such measures shall include, but are not limited to, disinfection
of the reclaimed water equivalent to Level 1, application of the reclaimed
water by methods that minimize aerosol formation (e.g., low trajectory nozzles
for spray irrigation, above-ground drip irrigation), installation of permanent
physical barriers to prevent migration of aerosols from the reclaimed water
irrigation site, or any combination thereof. Written consent of affected
landowners is required to reduce setback distances from occupied dwellings.
b. Up to 100 % from property lines with written consent from
adjacent landowners.
c. To but not less than 100 feet from potable water supply
wells and springs, or public water supply intakes if it can be demonstrated
that disinfection of the reclaimed water is equivalent to Level 1 and there are
no other constituents of the reclaimed water present in quantities sufficient
to be harmful to human health.
d. To but not less than 25 feet from surface waters, including
wetlands, where reclaimed water shall be applied by methods that minimize
aerosol formation (e.g., low trajectory nozzles for spray irrigation,
above-ground drip irrigation); or permanent physical barriers are installed to
prevent the migration of aerosols from the reclaimed water irrigation site to
surface waters.
5. Application of reclaimed water shall not occur during
winds of sufficient strength to cause overspray or aerosol drift into or beyond
the buffer zones or setbacks specified in subdivisions 1 through 4 of this
subsection.
5. 6. For irrigation reuses where more than one
setback distance may apply, the greater setback distance shall govern.
6. 7. Unless specifically stated otherwise, all
setback distances shall be measured horizontally.
I. Minimum separation distances for in-ground reclaimed water
distribution pipelines specified in 9VAC25-740-110 B 3, shall apply to
in-ground piping for irrigation systems of reclaimed water.
J. A setback distance of 100 feet horizontally shall be
maintained from indoor aesthetic features (i.e., decorative waterfalls or
fountains) that use reclaimed water treated to Level 1, to adjacent indoor
public eating and drinking facilities where the aesthetic features have the
potential to create aerosols and eating and drinking facilities are within the
same room or building space.
K. A setback distance of 300 feet horizontally shall be
provided from an open cooling tower to the site property line where reclaimed
water treated to Level 2 is used in the tower. No setback distance shall be
required from an open cooling tower to the site property line where a drift or
mist eliminator is installed and properly operated or reclaimed water treated
to Level 1 disinfection standards is used in the tower. Treatment of the
reclaimed water to Level 1 disinfection standards may be provided by the
industrial end user through the contract or agreement established by the
permittee in accordance with 9VAC25-740-100 C 1 d.
9VAC25-740-180. Operational flow requirements.
A. When the monthly average flow into a reclamation
system or satellite reclamation system SRS reaches 95% of the designated
design capacity flow authorized by the VPDES or VPA permit issued
to that system for each month of any three-month period, the permittee shall
within 30 days notify the board in writing and within 90 days submit a plan of
action for ensuring continued compliance with the terms of the permit.
1. B. The plan of action described in
subsection A of this section shall include the necessary steps and a prompt
schedule of implementation for controlling any current problem, or any problem
that could be reasonably anticipated, resulting from high flows entering the
reclamation system or satellite reclamation system SRS.
2. C. Upon receipt of the permittee's plan of
action described in subsection A of this section, the board shall notify
the owner whether the plan is approved or disapproved. If the plan is
disapproved, such notification shall state the reasons and specify the actions
necessary to obtain approval of the plan.
3. D. Failure to timely submit an adequate plan
of action in accordance with subsection A of this section shall be
deemed a violation of the permit.
4. E. Nothing herein shall in any way impair
the authority of the board to take enforcement action under § 62.1-44.15,
62.1-44.23, or 62.1-44.32 of the Code of Virginia.
9VAC25-740-200. Reporting.
A. Permittees of water reclamation systems and satellite
reclamation systems SRSs shall submit a monthly monitoring report to
the board. The report shall include monitoring results for parameters contained
in the VPDES or VPA permit to demonstrate compliance with applicable reclaimed
water standards of this chapter.
B. Interruption or loss of reclaimed water supply or
discharge of any untreated or partially treated water that fails to comply with
standards specified in the VPDES or VPA permit to the service area of intended
reuse, shall be reported in accordance with procedures specified in the permit.
This report shall also contain a description of any notification provided in
accordance with 9VAC25-740-170 A 2.
C. Permittees of reclaimed water distribution systems shall
submit an annual report to the board on or before February 10 of the following
year. The annual report shall, at a minimum:
1. Estimate the volume of reclaimed water distributed to the
service area of the RWM plan, reported as monthly totals for a 12-month period
from January 1 through December 31;
2. Provide for reclaimed water not treated to achieve BNR that
is used within the service area of the RWM plan, the monthly average
concentrations of total N and total P in the reclaimed water, an estimate of
the monthly total volume of reclaimed water used for nonbulk irrigation and for
bulk irrigation, the monthly total nutrient loads (N and P) to the service area
resulting from nonbulk irrigation reuse and from bulk irrigation reuse, and the
area in active reuse for nonbulk irrigation and for bulk irrigation within the
service area, all reported for a 12-month period from January 1 through
December 31; and
3. Provide a summary of ongoing education and notification
program activities, including copies of education materials, as required by
9VAC25-740-170 A.
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 (9VAC25-740)
Water Reclamation and Reuse Addendum to an Application for
a Virginia Pollutant Discharge Elimination System Permit or a Virginia
Pollution Abatement Permit, 6/1/2009.
Water
Reclamation and Reuse Addendum to an Application for a Virginia Pollutant
Discharge Elimination System Permit or a Virginia Pollution Abatement Permit
and Instructions (undated).
DOCUMENTS INCORPORATED BY REFERENCE (9VAC25-740)
Installation of Ductile-Iron Water Mains and Their
Appurtenances, ANSI/AWWA C600-05 (Revision of ANSI/AWWA C600-99), effective
December 1, 2005, American Water Works Association.
Ultraviolet Disinfection Guidelines for Drinking Water and
Water Reuse, Second Edition (May 2003), National Water Research Institute,
10500 Ellis Avenue, P.O. Box 20865, Fountain Valley, California 92728;
www.nwri-usa.org.
Disinfecting Water Mains, ANSI/AWWA C651-05, effective
June 1, 2005, American Water Works Association, 6666 West Quincy Avenue,
Denver, Colorado, 80235; www.awwa.org.
VA.R. Doc. No. R11-2622; Filed September 28, 2012, 5:07 p.m.
Final Regulation
REGISTRAR'S NOTICE:
The State Water Control Board is claiming an exclusion from the Administrative
Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia,
which excludes regulations that are necessary to conform to changes in Virginia
statutory law where no agency discretion is involved. The State Water Control
Board will receive, consider, and respond to petitions by any interested person
at any time with respect to reconsideration or revision.
Title of Regulation: 9VAC25-820. General Virginia
Pollutant Discharge Elimination System (VPDES) Watershed Permit Regulation for
Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the
Chesapeake Bay Watershed in Virginia (amending 9VAC25-820-10, 9VAC25-820-70).
Statutory Authority: § 62.1-44.15 of the Code of
Virginia.
Effective Date: November 21, 2012.
Agency Contact: Allan Brockenbrough, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4147, FAX (804) 698-4032, TTY (804) 698-4021, or email
allan.brockenbrough@deq.virginia.gov.
Summary:
The amendments (i) expand the trading program to allow
smaller, "nonsignificant" dischargers to generate compliance credits
that may be provided to other dischargers (under the current regulation, only
the larger "significant" facilities with wasteload allocations in the
Water Quality Management Planning Regulation are able to generate compliance
credits); (ii) eliminate the requirement to submit a redundant annual report in
addition to a year end discharge monitoring report; (iii) allow new or
expanding facilities to offset new loads with compliance credits; and (iv)
reflect the planned development of nonpoint source credit certification
regulations by the Department of Conservation and Recreation.
9VAC25-820-10. Definitions.
Except as defined below, the words and terms used in this
chapter shall have the meanings defined in the Virginia Pollution Discharge
Elimination System (VPDES) Permit Regulation (9VAC25-31).
"Annual mass load of total nitrogen" (expressed in
pounds per year) means the sum of the total monthly loads for all of the months
in one calendar year. See Part I E 4 of the general permit in 9VAC25-820-70 for
calculating total monthly load.
"Annual mass load of total phosphorus" (expressed
in pounds per year) means the sum of the total monthly loads for all of the
months in one calendar year. See Part I E 4 of the general permit in
9VAC25-820-70 for calculating total monthly load.
"Association" means the Virginia Nutrient Credit
Exchange Association authorized by § 62.1-44.19:17 of the Code of
Virginia.
"Attenuation" means the rate at which nutrients are
reduced through natural processes during transport in water.
"Board" means the Virginia State Water Control
Board or State Water Control Board.
"Delivered total nitrogen load" means the
discharged mass load of total nitrogen from a point source that is adjusted by
the delivery factor for that point source.
"Delivered total phosphorus load" means the
discharged mass load of total phosphorus from a point source that is adjusted
by the delivery factor for that point source.
"Delivery factor" means an estimate of the number
of pounds of total nitrogen or total phosphorus delivered to tidal waters for
every pound discharged from a permitted facility, as determined by the specific
geographic location of the permitted facility, to account for attenuation that
occurs during riverine transport between the permitted facility and tidal
waters. Delivery factors shall be calculated using the Chesapeake Bay Program
watershed model. For the purpose of this regulation, delivery factors with a
value greater than 1.00 in the Chesapeake Bay Program watershed model shall be
considered to be equal to 1.00.
"Department" means the Department of Environmental
Quality.
"Eastern Shore trading ratio" means the number of
point source credits from another tributary that can be acquired and applied by
a facility in the Eastern Shore Coastal Basin. Trading ratios are
expressed in the form "credits supplied: credits received."
"Equivalent load" means:
2,300 pounds per year of total nitrogen or 300 pounds per year
of total phosphorus discharged by an industrial facility are considered
equivalent to the load discharged from sewage treatment works with a design
capacity of 0.04 million gallons per day,
5,700 pounds per year of total nitrogen or 760 pounds per year
of total phosphorus discharged by an industrial facility are considered
equivalent to the load discharged from sewage treatment works with a design
capacity of 0.1 million gallons per day, and
28,500 pounds per year of total nitrogen or 3,800 pounds per
year of total phosphorus discharged by an industrial facility are considered
equivalent to the load discharged from sewage treatment works with a design
capacity of 0.5 million gallons per day.
"Existing facility" means a facility holding a current
individual VPDES permit that has either commenced discharge from, or has
received a Certificate to Construct (for sewage treatment works, or equivalent
DEQ approval for discharges from industrial facilities) the treatment works
used to derive its waste load allocation on or before July 1, 2005, or has a
waste load allocation listed in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70
C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management
Planning Regulation. Existing facility shall also mean and include any
facility, without an individual VPDES permit, which holds a separate waste load
allocation in 9VAC25-720-120 C of the Water Quality Management Planning
Regulation.
"Expansion" or "expands" means (i)
initiating construction at an existing treatment works after July 1, 2005, to
increase design flow capacity, except that the term does not apply in those
cases where a Certificate to Construct (for sewage treatment works, or
equivalent DEQ approval for discharges from industrial facilities) was issued
on or before July 1, 2005, or (ii) industrial production process changes or the
use of new treatment products at industrial facilities that increase the annual
mass load of total nitrogen or total phosphorus above the waste load
allocation.
"Facility" means a point source discharging or
proposing to discharge total nitrogen or total phosphorus to the Chesapeake Bay
or its tributaries. This term does not include confined animal feeding
operations, discharges of storm water, return flows from irrigated agriculture,
or vessels.
"General permit" means this general permit
authorized by § 62.1-44.19:14 of the Code of Virginia.
"Industrial facility" means any facility (as
defined above) other than sewage treatment works.
"Local water quality-based limitations" means
limitations intended to protect local water quality including applicable total
maximum daily load (TMDL) allocations, applicable Virginia Pollution Discharge
Elimination System (VPDES) permit limits, applicable limitations set forth in
water quality standards established under § 62.1-44.15 (3a) of the Code of
Virginia, or other limitations as established by the State Water Control Board.
"New discharge" means any discharge from a facility
that did not commence the discharge of pollutants prior to July 1, 2005, except
that the term does not apply in those cases where a Certificate to Construct
(for sewage treatment works, or equivalent DEQ approval for discharges from
industrial facilities) was issued to the facility on or before July 1, 2005.
"Nonsignificant discharger" means (i) a sewage
treatment works discharging to the Chesapeake Bay watershed downstream of the
fall line with a design capacity of less than 0.1 million gallons per day, or
less than an equivalent load discharged from industrial facilities, or (ii) a
sewage treatment works discharging to the Chesapeake Bay watershed upstream of
the fall line with a design capacity of less than 0.5 million gallons per day,
or less than an equivalent load discharged from industrial facilities.
"Offset" means to acquire an annual waste load
allocation of total nitrogen or total phosphorus by a new or expanding facility
to ensure that there is no net increase of nutrients into the affected
tributary of the Chesapeake Bay.
"Permitted design capacity" or "permitted
capacity" means the allowable load (pounds per year) assigned to an
existing facility that is a nonsignificant discharger, that does not have a
waste load allocation listed in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70
C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management
Planning Regulation. The permitted design capacity is calculated based on the
design flow and installed nutrient removal technology (for sewage treatment
works, or equivalent discharge from industrial facilities) at a facility that
has either commenced discharge, or has received a Certificate to Construct (for
sewage treatment works, or equivalent DEQ approval for discharges from
industrial facilities) prior to July 1, 2005. This mass load is used for (i)
determining whether the expanding facility must offset additional mass loading
of nitrogen and phosphorus and (ii) determining whether the facility must
acquire credits at the end of a calendar year. For the purpose of this
regulation, facilities that have installed secondary wastewater treatment
(intended to achieve BOD and TSS monthly average concentrations equal to or
less than 30 milligrams per liter) are assumed to achieve an annual average
total nitrogen effluent concentration of 18.7 milligrams per liter and an
annual average total phosphorus effluent concentration of 2.5 milligrams per
liter. Permitted design capacities for facilities that, before July 1, 2005,
were required to comply with more stringent nutrient limits shall be calculated
using the more stringent values.
"Permitted facility" means a facility authorized by
this general permit to discharge total nitrogen or total phosphorus. For the
sole purpose of generating point source nitrogen credits or point source
phosphorus credits, "permitted facility" shall also mean the Blue
Plains wastewater treatment facility operated by the District of Columbia Water
and Sewer Authority.
"Permittee" means a person authorized by this
general permit to discharge total nitrogen or total phosphorus.
"Point source nitrogen credit" means the difference
between (i) the waste load allocation for a permitted facility specified as an
annual mass load of total nitrogen and (ii) the monitored annual mass load of
total nitrogen discharged by that facility, where clause (ii) is less than
clause (i), and where the difference is adjusted by the applicable delivery
factor and expressed as pounds per year of delivered total nitrogen load.
"Point source phosphorus credit" means the
difference between (i) the waste load allocation for a permitted facility
specified as an annual mass load of total phosphorus and (ii) the monitored
annual mass load of total phosphorus discharged by that facility, where clause
(ii) is less than clause (i), and where the difference is adjusted by the
applicable delivery factor and expressed as pounds per year of delivered total
phosphorus load.
"Quantification level (QL)" means the minimum
levels, concentrations, or quantities of a target variable (e.g., target
analyte) that can be reported with a specified degree of confidence in
accordance with 1VAC30-45, Certification for Noncommercial Environmental
Laboratories, or 1VAC30-46, Accreditation for Commercial Environmental
Laboratories.
"Registration list" means a list maintained by the department
indicating all facilities that have registered for coverage under this general
permit, by tributary, including their waste load allocations, permitted design
capacities and delivery factors as appropriate.
"Significant discharger" means (i) a sewage
treatment works discharging to the Chesapeake Bay watershed upstream of the
fall line with a design capacity of 0.5 million gallons per day or greater, or
an equivalent load discharged from industrial facilities; (ii) a sewage
treatment works discharging to the Chesapeake Bay watershed downstream of the
fall line with a design capacity of 0.1 million gallons per day or greater, or
an equivalent load discharged from industrial facilities; (iii) a planned or
newly expanding sewage treatment works discharging to the Chesapeake Bay
watershed upstream of the fall line that is expected to be in operation by
December 31, 2010, with a permitted design of 0.5 million gallons per day or
greater, or an equivalent load to be discharged from industrial facilities; or
(iv) a planned or newly expanding sewage treatment works discharging to the
Chesapeake Bay watershed downstream of the fall line that is expected to be in
operation by December 31, 2010, with a design capacity of 0.1 million gallons
per day or greater, or an equivalent load to be discharged from industrial
facilities.
"State-of-the-art nutrient removal technology"
means (i) technology that will achieve an annual average total nitrogen
effluent concentration of three milligrams per liter and an annual average
total phosphorus effluent concentration of 0.3 milligrams per liter or (ii)
equivalent load reductions in total nitrogen and total phosphorus through
recycle or reuse of wastewater as determined by the department.
"Tributaries" means those river basins for which
separate tributary strategies were prepared pursuant to § 2.2-218 of the
Code of Virginia and includes the Potomac, Rappahannock, York, and James River
Basins, and the Eastern Coastal Basin, which encompasses the creeks and rivers
of the Eastern Shore of Virginia that are west of Route 13 and drain into the
Chesapeake Bay.
"Waste load allocation" means the most limiting of
(i) the water quality-based annual mass load of total nitrogen or annual mass
load of total phosphorus allocated to individual facilities pursuant to
9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C, and
9VAC25-720-120 C of the Water Quality Management Planning Regulation or its
successor, or permitted capacity in the case of nonsignificant dischargers;
(ii) the water quality-based annual mass load of total nitrogen or annual mass
load of total phosphorus acquired pursuant to § 62.1-44.19:15 of the Code of
Virginia for new or expanded facilities,; or (iii) applicable
total nitrogen or total phosphorus waste load allocations under the
Chesapeake Bay total maximum daily loads (TMDLs) to restore or
protect the water quality and beneficial uses of the Chesapeake Bay or its
tidal tributaries.
9VAC25-820-70. General permit.
Any owner whose registration statement is accepted by the
board will receive the following general permit and shall comply with the
requirements therein.
General Permit No.: VAN000000
Effective Date: January 1, 2012
Amended Effective Date: November 21, 2012
Expiration Date: December 31, 2016
GENERAL PERMIT FOR TOTAL NITROGEN AND TOTAL PHOSPHORUS
DISCHARGES AND NUTRIENT TRADING IN THE CHESAPEAKE WATERSHED IN VIRGINIA
AUTHORIZATION TO DISCHARGE UNDER THE VIRGINIA POLLUTANT DISCHARGE ELIMINATION
SYSTEM AND THE VIRGINIA STATE WATER CONTROL LAW
In compliance with the provisions of the Clean Water Act, as
amended, and pursuant to the State Water Control Law and regulations adopted
pursuant thereto, owners of facilities holding a VPDES individual permit or
owners of facilities that otherwise meet the definition of an existing
facility, with total nitrogen and/or total phosphorus discharges to the
Chesapeake Bay or its tributaries, are authorized to discharge to surface
waters and exchange credits for total nitrogen and/or total phosphorus.
The authorized discharge shall be in accordance with the
registration statement filed with DEQ, this cover page, Part I-Special
Conditions Applicable to All Facilities, Part II-Special Conditions Applicable
to New and Expanded Facilities, and Part III-Conditions Applicable to All VPDES
Permits, as set forth herein.
PART I
SPECIAL CONDITIONS APPLICABLE TO ALL FACILITIES
A. Authorized activities.
1. Authorization to discharge for facilities required to
register.
a. Every owner or operator of a facility required to submit a registration
statement to the department by November 1, 2011, and thereafter upon the
reissuance of this general permit, shall be authorized to discharge total
nitrogen and total phosphorus subject to the requirements of this general
permit upon the department's approval of the registration statement.
b. Any owner or operator of a facility required to submit a
registration statement with the department at the time he makes application
with the department for a new discharge or expansion that is subject to an
offset or technology-based requirement in Part II of this general permit, shall
be authorized to discharge total nitrogen and total phosphorus subject to the
requirements of this general permit upon the department's approval of the
registration statement.
c. Upon the department's approval of the registration
statement, a facility will be included in the registration list maintained by
the department.
2. Authorization to discharge for facilities not required to
register. Any facility authorized by a Virginia Pollutant Discharge Elimination
System permit and not required by this general permit to submit a registration
statement shall be deemed to be authorized to discharge total nitrogen and
total phosphorus under this general permit at the time it is issued. Owners or
operators of facilities that are deemed to be permitted under this subsection
shall have no obligation under this general permit prior to submitting a
registration statement and securing coverage under this general permit based
upon such registration statement.
3. Continuation of permit coverage.
a. Any owner authorized to discharge under this general permit
and who submits a complete registration statement for the reissued general
permit by November 1, 2016, in accordance with Part III A or who is not
required to register in accordance with Part I A 2 is authorized to continue to
discharge under the terms of this general permit until such time as the board
either:
(1) Issues coverage to the owner under the reissued general
permit, or
(2) Notifies the owner that coverage under the reissued permit
is denied.
b. When the owner that was covered under the expiring or
expired general permit has violated or is violating the conditions of that
permit, the board may choose to do any or all of the following:
(1) Initiate enforcement action based upon the general permit
that has been continued,
(2) Issue a notice of intent to deny coverage under the
amended general permit if the general permit coverage is denied the owner would
then be required to cease the activities authorized by the continued general
permit or be subject to enforcement action for operating without a permit, or
(3) Take other actions authorized by the State Water Control
Law.
B. Waste load allocations.
1. Waste load allocations allocated to permitted facilities
pursuant to 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110
C, and 9VAC25-720-120 C of the Water Quality Management Planning Regulation, or
applicable total maximum daily loads, or waste load allocations acquired by new
and expanding facilities to offset new or increased delivered total nitrogen
and delivered total phosphorus loads from a new discharge or expansion under
Part II B of this general permit, and existing loads calculated from the
permitted design capacity of expanding facilities not previously covered by
this general permit, shall be incorporated into the registration list
maintained by the department. The waste load allocations contained in this list
shall be enforceable as annual mass load limits in this general permit. Credits
shall not be generated by facilities whose mass loads are derived from
permitted design capacities, or from facilities whose operations were
previously authorized by a Virginia Pollution Abatement (VPA) permit that was
issued before July 1, 2005.
2. Except as described in subdivisions 2 d c and
2 e d of this subsection, an owner or operator of two or more
facilities covered by this general permit and located in the same tributary may
apply for and receive an aggregated mass load limit for delivered total
nitrogen and an aggregated mass load limit for delivered total phosphorus
reflecting the total of the water quality-based total nitrogen and total
phosphorus waste load allocations or permitted design capacities established
for such facilities individually.
a. The permittee (and all of the individual facilities covered
under a single registration) shall be deemed to be in compliance when the
aggregate mass load discharged by the facilities is less than the aggregate
load limit.
b. The permittee will be eligible to generate credits only if
the aggregate mass load discharged by the facilities is less than the total of
the waste load allocations assigned to any of the affected facilities in
9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C and
9VAC25-720-120 C of the Water Quality Management Planning Regulation.
c. Credits shall not be generated by permittees whose
aggregated mass load limit is derived entirely from permitted design capacities.
d. The aggregation of mass load limits shall not affect
any requirement to comply with local water quality-based limitations.
e. d. Facilities whose operations were
previously authorized by a Virginia Pollution Abatement (VPA) permit that was
issued before July 1, 2005, cannot be aggregated with other facilities under
common ownership or operation.
f. e. Operation under an aggregated mass load
limit in accordance with this section shall not be deemed credit acquisition as
described in Part I J 2 of this general permit.
3. An owner who consolidates two or more facilities located in
the same tributary into a single regional facility may apply for and receive an
aggregated mass load limit for delivered total nitrogen and an aggregated mass
load limit for delivered total phosphorus, subject to the following conditions:
a. If all of the affected facilities have waste load
allocations in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C,
9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management Planning
Regulation, the aggregate mass load limit shall be calculated by adding the
waste load allocations of the affected facilities. The regional facility shall
be eligible to generate credits.
b. If any, but not all, of the affected facilities has a waste
load allocation in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C,
9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management Planning
Regulation, the aggregate mass load limit shall be calculated by adding:
(1) Waste load allocations of those facilities that have waste
load allocations in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C,
9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management Planning
Regulation;
(2) Permitted design capacities assigned to affected industrial
facilities; and
(3) Loads from affected sewage treatment works that do not
have a waste load allocation in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70
C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management
Planning Regulation, defined as the lesser of a previously calculated permitted
design capacity, or the values calculated by the following formulae:
Nitrogen Load (lbs/day) = flow x 8.0 mg/l x 8.345 x 365
days/year
Phosphorus Load (lbs/day) = flow x 1.0 mg/l x 8.345 x 365 days/year
Flows used in the preceding formulae shall be the design flow
of the treatment works from which the affected facility currently discharges.
The regional facility shall be eligible to generate credits.
c. If none of the affected facilities have a waste load
allocation in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110
C, and 9VAC25-720-120 C of the Water Quality Management Planning Regulation,
the aggregate mass load limit shall be calculated by adding the respective
permitted design capacities for the affected facilities. The regional facility
shall not be eligible to generate credits.
d. Facilities whose operations were previously authorized by a
Virginia Pollution Abatement (VPA) permit that was issued before July 1, 2005,
may be consolidated with other facilities under common ownership or operation,
but their allocations cannot be transferred to the regional facility.
e. Facilities whose operations were previously authorized by a
VPA permit that was issued before July 1, 2005, can become regional facilities,
but they cannot receive additional allocations beyond those permitted in Part
II B 1 d of this general permit.
4. Unless otherwise noted, the nitrogen and phosphorus waste
load allocations assigned to permitted facilities are considered total loads
including nutrients present in the intake water from the river, as applicable.
On a case-by-case basis, an industrial discharger may demonstrate to the
satisfaction of the board that a portion of the nutrient load originates in its
intake water. This demonstration shall be consistent with the assumptions and
methods used to derive the allocations through the Chesapeake Bay models. In
these cases, the board may limit the permitted discharge to the net nutrient
load portion of the assigned waste load allocation.
5. Bioavailability. Unless otherwise noted, the entire
nitrogen and phosphorus waste load allocations assigned to permitted facilities
are considered to be bioavailable to organisms in the receiving stream. On a
case-by-case basis, a discharger may demonstrate to the satisfaction of the
board that a portion of the nutrient load is not bioavailable; this
demonstration shall not be based on the ability of the nutrient to resist
degradation at the wastewater treatment plant, but instead, on the ability of
the nutrient to resist degradation within a natural environment for the amount
of time that it is expected to remain in the bay watershed. This demonstration
shall also be consistent with the assumptions and methods used to derive the
allocations through the Chesapeake Bay models. In these cases, the board may
limit the permitted discharge to the bioavailable portion of the assigned waste
load allocation.
C. Schedule of compliance.
1. The following schedule of compliance pertaining to the load
allocations for total nitrogen and total phosphorus applies to the facilities
listed in 9VAC25-820-80.
a. Compliance shall be achieved as soon as possible, but no
later than the following dates, subject to any compliance plan-based adjustment
by the board pursuant to subdivision 1 b of this subsection, for each
parameter:
|
|
Tributary
|
Parameter
|
Final Effluent Limits Effective Date
|
|
|
James River
|
Nitrogen
|
January 1, 2017
|
|
|
York River
|
Phosphorus
|
January 1, 2016
|
b. Following submission of compliance plans and compliance
plan updates required by 9VAC25-820-40, the board shall reevaluate the schedule
of compliance in subdivision 1 a of this subsection, taking into account the
information in the compliance plans and the factors in § 62.1-44.19:14 C 2
of the Code of Virginia. When warranted based on such information and factors,
the board shall adjust the schedule in subdivision 1 a of this subsection as
appropriate by modification or reissuance of this general permit.
2. The registration list shall contain individual dates for
compliance (as defined in Part I J 1 a-b of this general permit) for
dischargers, as follows:
a. Facilities listed in 9VAC25-820-80 will have individual
dates for compliance based on their respective compliance plans, that may be
earlier than the basin schedule listed in subdivision 1 of this subsection.
b. Facilities listed in 9VAC25-820-70 that waive their
compliance schedules in accordance with 9VAC25-820-40 A 2 b shall have an
individual compliance date of January 1, 2012.
c. Upon completion of the projects contained in their
compliance plans, facilities listed in 9VAC25-820-80 may receive a revised
individual compliance date of January 1 for the calendar year immediately
following the year in which a Certificate to Operate was issued for the capital
projects, but not later than the basin schedule listed in subdivision 1 of this
subsection.
d. New and expanded facilities will have individual dates for
compliance corresponding to the date that coverage under this general permit
was extended to the facility.
3. The 39 significant dischargers in the James River Basin
shall meet aggregate discharged waste load allocations of 8,968,864
lbs/yr TN and 545,558 lbs/yr TP by January 1, 2023.
D. Annual update of compliance plan. Every owner or operator
of a facility required to submit a registration statement shall either
individually or through the Virginia Nutrient Credit Exchange Association
submit updated compliance plans to the department no later than February 1 of
each year. The compliance plans shall contain sufficient information to
document a plan for the facility to achieve and maintain compliance with
applicable total nitrogen and phosphorus individual waste load allocations on
the registration list and aggregate waste load allocations in Part I C 3.
Compliance plans for facilities that were required to submit a registration
statement with the department under Part I G 1 a may rely on the acquisition of
point source credits in accordance with Part I J of this general permit, but
not the acquisition of credits through payments into the Water Quality
Improvement Fund, to achieve compliance with the individual and combined waste
load allocations in each tributary. Compliance plans for expansions or new
discharges for facilities that are required to submit a registration statement
with the department under Part I G 1 b and c may rely on the acquisition of
allocation in accordance with Part II B of this general permit to achieve
compliance with the individual and combined waste load allocations in each
tributary.
E. Monitoring requirements.
1. Discharges shall be monitored by the permittee during
weekdays as specified below unless the department determines that weekday only
sampling results in a non-representative load. Weekend monitoring and/or
alternative monthly load calculations to address production schedules or
seasonal flows shall be submitted to the department for review and approval on
a case-by-case basis. Facilities that exhibit instantaneous discharge flows that
vary from the daily average discharge flow by less than 10% may submit a
proposal to the department to use an alternative sample type; such proposals
shall be reviewed and approved by the department on a case-by-case basis.
|
Parameter
|
Sample
Type and Collection Frequency
|
|
STP
design flow
|
≥20.0
MGD
|
1.0-19.999
MGD
|
0.040-0.999
MGD
|
<
0.040 MGD
|
|
Effluent TN load limit for
industrial facilities
|
|
>100,000 lb/yr
|
487-99,999 lb/yr
|
< 487 lb/yr
|
|
Effluent TP load limit for
industrial facilities
|
|
>10,000 lb/yr
|
37-9,999 lb/yr
|
< 37 lb/yr
|
|
Flow
|
Totalizing, Indicating, and
Recording
|
1/Day, see individual VPDES
permit for sample type
|
|
Nitrogen Compounds (Total
Nitrogen = TKN + NO2- (as N) + NO3- (as N))
|
24 HC
3 Days/Week
|
24 HC
1/Week
|
8 HC
2/Month, > 7 days apart
|
1/Month
Grab
|
|
Total Phosphorus
|
24 HC
3 Days/Week
|
24 HC
1/Week
|
8 HC
2/Month, > 7 days apart
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1/Month
Grab
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|
|
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2. Monitoring for compliance with
effluent limitations shall be performed in a manner identical to that used to
determine compliance with effluent limitations established in the individual
VPDES permit. Monitoring or sampling shall be conducted according to analytical
laboratory methods approved under 40 CFR Part 136, unless other test or sample
collection procedures have been requested by the permittee and approved by the
department in writing. All analysis for compliance with effluent limitations
shall be in accordance with 1VAC30-45, Certification for Noncommercial
Environmental Laboratories, or 1VAC30-46, Accreditation for Commercial
Environmental Laboratories. Monitoring may be performed by the permittee at
frequencies more stringent than listed above; however, the permittee shall
report all results of such monitoring.
3. Loading values greater than or equal to 10 pounds reported
in accordance with Part I E and F of this general permit shall be calculated
and reported to the nearest pound without regard to mathematical rules of
precision. Loading values of less than 10 pounds reported in accordance with
Part I E and F of this general permit shall be calculated and reported to at
least two significant digits with the exception that all complete calendar year
annual loads shall be reported to the nearest pound.
4. Data shall be reported on a form provided by the
department, by the same date each month as is required by the facility's
individual permit. The total monthly load shall be calculated in accordance
with the following formula:
where:
ML = total monthly load (lb/mo) =
average daily load for the calendar month multiplied by the number of days of
the calendar month on which a discharge occurred
DL = daily load = daily concentration (expressed as mg/l to
the nearest 0.01 mg/l) multiplied by the flow volume of effluent discharged
during the 24-hour period (expressed as MGD to at least the nearest 0.01 MGD
and in no case less than two significant digits), multiplied by 8.345. Daily
loads greater than or equal to 10 pounds may be rounded to the nearest whole
number to convert to pounds per day (lbs/day). Daily loads less than or equal
to 10 pounds may be rounded to no fewer than two significant fiqures.
s = number of days in the calendar month in which a sample was
collected and analyzed
d = number of discharge days in the calendar month
For total phosphorus, all daily concentration data below the
quantification level (QL) for the analytical method used should be treated as
half the QL. All daily concentration data equal to or above the QL for the
analytical method used shall be treated as it is reported. If all data are
below the QL, then the average shall be reported as half the QL.
For total nitrogen (TN), if none of the daily concentration
data for the respective species (i.e., TKN, nitrates/nitrites) are equal to or
above the QL for the respective analytical methods used, the daily TN
concentration value reported shall equal one half of the largest QL used for
the respective species. If one of the data is equal to or above the QL, the daily
TN concentration value shall be treated as that data point as reported. If more
than one of the data is above the QL, the daily TN concentration value shall
equal the sum of the data points as reported.
The total year-to-date mass load shall be calculated in
accordance with the following formula:
where:
AL-YTD = calendar year-to-date annual load (lb/yr)
ML = total monthly load (lb/mo)
The total annual mass load shall be calculated in
accordance with the following formula:
where:
AL = calendar year annual load (lb/yr)
ML = total monthly load (lb/mo)
5. The department may authorize a chemical usage evaluation as
an alternative means of determining nutrient loading for outfalls where the
only source of nutrients is those found in the surface water intake and
chemical additives used by the facility. Such an evaluation shall be submitted
to the department for review and approval on a case-by-case basis.
Implementation of approved chemical usage evaluations shall satisfy the
requirements specified under Part I E 1 and 2.
F. Annual reporting.
1. Annually, on or before February 1, the permittee shall
either individually or through the Virginia Nutrient Credit Exchange
Association file a report with the department, using a reporting form supplied
by the department. The report shall identify:
a. The annual mass load of total nitrogen and the annual
mass load of total phosphorus discharged by each of its permitted facilities
during the previous calendar year;
b. The delivered total nitrogen load and delivered total
phosphorus load discharged by each of its permitted facilities during the
previous year; and
c. The number of total nitrogen and total phosphorus
credits for the previous calendar year to be acquired or eligible for exchange
by the permittee.
The total annual mass load shall be calculated in
accordance with the following formula:
where:
AL = calendar year annual load (lb/yr)
ML = total monthly load (lb/mo)
On or before February 1, annually, each permittee shall
file a discharge monitoring report with the department identifying the annual
mass load of total nitrogen and the annual mass load of total phosphorus
discharged by the permitted facility during the previous calendar year.
G. Requirement to register; exclusions.
1. The following owners or operators are required to register
for coverage under this general permit:
a. Every owner or operator of an existing facility authorized
by a Virginia Pollutant Discharge Elimination System permit to discharge
100,000 gallons or more per day from a sewage treatment work, or an equivalent
load from an industrial facility, directly into tidal waters, or 500,000
gallons or more per day from a sewage treatment work, or an equivalent load
from an industrial facility, directly into nontidal waters, shall submit a
registration statement to the department by November 1, 2011, and thereafter
upon the reissuance of this general permit in accordance with Part III B. The
conditions of this general permit will apply to such owner and operator upon
approval of a registration statement.
b. Any owner or operator of a facility authorized by a
Virginia Pollutant Discharge Elimination System permit to discharge 40,000
gallons or more per day from a sewage treatment work, or an equivalent load
from an industrial facility, directly into tidal or nontidal waters shall
submit a registration statement with the department at the time he makes
application for an individual permit with the department for a new discharge or
expansion that is subject to an offset requirement in Part II of this general
permit or technology-based requirement in 9VAC25-40-70, and thereafter upon the
reissuance of this general permit in accordance with Part III B. The conditions
of this general permit will apply to such owner or operator beginning on the
start of the calendar year immediately following approval of a registration
statement and issuance or modification of the individual permit.
c. Any owner or operator of a facility treating domestic
sewage authorized by a Virginia Pollutant Discharge Elimination System permit
with a discharge greater than 1,000 gallons per day up to and including 39,999
gallons per day that has not commenced the discharge of pollutants prior to
January 1, 2011, shall submit a registration statement with the department at
the time he makes application for an individual permit with the department or
prior to commencing a discharge, which ever occurs first, and thereafter upon
the reissuance of this general permit in accordance with Part III B.
2. All other categories of discharges are excluded from
registration under this general permit.
H. Registration statement.
1. The registration statement shall contain the following
information:
a. Name, mailing address and telephone number, e-mail address
and fax number of the owner (and facility operator, if different from the
owner) applying for permit coverage;
b. Name (or other identifier), address, city or county,
contact name, phone number, e-mail address and fax number for the facility for
which the registration statement is submitted;
c. VPDES permit numbers for all permits assigned to the
facility, or pursuant to which the discharge is authorized;
d. If applying for an aggregated waste load allocation in
accordance with Part I B 2 of this permit, list all affected facilities and the
VPDES permit numbers assigned to these facilities;
e. For new and expanded facilities, a plan to offset new or
increased delivered total nitrogen and delivered total phosphorus loads,
including the amount of waste load allocation acquired. Waste load allocations or
credits sufficient to offset projected nutrient loads must be provided for
period of at least five years; and
f. For existing facilities, the amount of a facility's waste
load allocation transferred to or from another facility to offset new or
increased delivered total nitrogen and delivered total phosphorus loads from a
new discharge or expansion.
2. The registration statement shall be submitted to the DEQ
Central Office, Office of Water Permits and Compliance Assistance.
3. An amended registration statement shall be submitted upon
the acquisition or transfer of a facility's waste load allocation to offset new
or increased delivered total nitrogen and delivered total phosphorus loads from
a new discharge or expansion.
I. Public notice for registration statements proposing
modifications or incorporations of new waste load allocations or delivery
factors.
1. All public notices issued pursuant to a proposed
modification or incorporation of a (i) new waste load allocation to offset new
or increased delivered total nitrogen and delivered total phosphorus loads from
a new discharge or expansion, or (ii) delivery factor, shall be published once
a week for two consecutive weeks in a major local newspaper of general
circulation serving the locality where the facility is located informing the
public that the facility intends to apply for coverage under this general
permit. At a minimum, the notice shall include:
a. A statement of the owner or operator's intent to register
for coverage under this general permit;
b. A brief description of the facility and its location;
c. The amount of waste load allocation that will be acquired
or transferred if applicable;
d. The delivery factor for a new discharge or expansion;
e. A statement that the purpose of the public participation is
to acquaint the public with the technical aspects of the facility 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 facility;
f. An announcement of a 30-day comment period and the name,
telephone number, and address of the owner's or operator's representative who
can be contacted by the interested persons to answer questions;
g. The name, telephone number, and address of the DEQ
representative who can be contacted by the interested persons to answer
questions, or where comments shall be sent; and
h. The location where copies of the documentation to be
submitted to the department in support of this general permit notification and
any supporting documents can be viewed and copied.
2. The owner or operator shall place a copy of the
documentation and support documents in a location accessible to the public in
the vicinity of the proposed facility.
3. The public shall be provided 30 days to comment on the
technical and the regulatory aspects of the proposal. The comment period will
begin on the date the notice is published in the local newspaper.
J. Compliance with waste load allocations.
1. Methods of compliance. The permitted facility shall comply
with its waste load allocation contained in the registration list maintained by
the department. The permitted facility shall be in compliance with its waste
load allocation if:
a. The annual mass load is less than or equal to the
applicable waste load allocation assigned to the facility in this general
permit (or permitted design capacity for expanded facilities without
allocations);
b. The permitted facility acquires sufficient point source
nitrogen or phosphorus credits in accordance with subdivision 2 of this
subsection; provided, however, that the acquisition of nitrogen or phosphorus
credits pursuant to this section shall not alter or otherwise affect the
individual waste load allocations for each permitted facility; or
c. In the event it is unable to meet the individual waste load
allocation pursuant to subdivision 1 a or 1 b of this subsection, the permitted
facility acquires sufficient nitrogen or phosphorus credits through payments
made into the Water Quality Improvement Fund pursuant to subdivision 3 of this
subsection; provided, however, that the acquisition of nitrogen or phosphorus
credits pursuant to this section shall not alter or otherwise affect the
individual waste load allocations for each permitted facility.
2. Credit acquisition from permitted facilities. A permittee
may acquire point source nitrogen credits or point source phosphorus credits
from one or more permitted facilities with waste load allocations in
9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70 C, 9VAC25-720-110 C and
9VAC25-720-120 C of the Water Quality Management Planning Regulation, including
the Blue Plains wastewater treatment facility operated by the District of
Columbia Water and Sewer Authority, only if:
a. The credits are generated and applied to a compliance
obligation in the same calendar year;
b. The credits are generated by one or more permitted
facilities in the same tributary, except that permitted facilities in the
Eastern Shore basin Coastal Basin may also acquire credits from
permitted facilities in the Potomac and Rappahannock tributaries. Eastern shore
Coastal Basin facilities may acquire credits from the Potomac tributary
at a trading ratio of 1:1. A trading ratio of 1.3:1 shall apply to the
acquisition of credits from the Rappahannock tributary by an Eastern Shore
Coastal Basin facility;
c. The exchange or acquisition of credits does not affect any
requirement to comply with local water quality-based limitations as determined
by the board;
d. The credits are acquired no later than June 1 immediately
following the calendar year in which the credits are applied;
e. The credits are generated by a facility that has been
constructed, and has discharged from treatment works whose design flow or
equivalent industrial activity is the basis for the facility's waste load
allocations (until a facility is constructed and has commenced operation, such
credits are held, and may be sold, by the Water Quality Improvement Fund; and
f. No later than June 1 immediately following the calendar
year in which the credits are applied, the permittee certifies on a credit
exchange notification form supplied by the department that he has acquired
sufficient credits to satisfy his compliance obligations. The permittee shall
comply with the terms and conditions contained in the credit exchange
notification form submitted to the department.
3. Credit acquisitions from the Water Quality Improvement
Fund. Until such time as the board finds that no allocations are reasonably
available in an individual tributary, permittees that cannot meet their total
nitrogen or total phosphorus effluent limit may acquire nitrogen or phosphorus
credits through payments made into the Virginia Water Quality Improvement Fund
established in § 10.1-2128 of the Code of Virginia only if, no later than
June 1 immediately following the calendar year in which the credits are to be
applied, the permittee certifies on a form supplied by the department that he
has diligently sought, but has been unable to acquire, sufficient credits to
satisfy his compliance obligations through the acquisition of point source
nitrogen or phosphorus credits with other permitted facilities, and that he has
acquired sufficient credits to satisfy his compliance obligations through one
or more payments made in accordance with the terms of this general permit. Such
certification may include, but not be limited to, providing a record of solicitation
or demonstration that point source allocations are not available for sale in
the tributary in which the permittee is located. Payments to the Water Quality
Improvement Fund shall be in the amount of $6.04 for each pound of nitrogen and
$15.08 for each pound of phosphorus and shall be subject to the following
requirements:
a. The credits are generated and applied to a compliance
obligation in the same calendar year.
b. The credits are generated in the same tributary, except
that permitted facilities in the Eastern Shore basin Coastal Basin
may also acquire credits from the Potomac and Rappahannock tributaries. Eastern
shore Coastal Basin facilities may acquire credits from the
Potomac tributary at a trading ratio of 1:1. A trading ratio of 1.3:1 shall
apply to the acquisition of credits from the Rappahannock tributary by an
Eastern Shore Coastal Basin facility.
c. The acquisition of credits does not affect any requirement
to comply with local water quality-based limitations, as determined by the
board.
4. This general permit neither requires, nor prohibits a
municipality or regional sewerage authority's development and implementation of
trading programs among industrial users, which are consistent with the
pretreatment regulatory requirements at 40 CFR Part 403 and the municipality's
or authority's individual VPDES permit.
PART II
SPECIAL CONDITIONS APPLICABLE TO NEW AND EXPANDED FACILITIES
A. Offsetting mass loads discharged by new and expanded
facilities.
1. An owner or operator of a new or expanded facility shall
comply with the applicable requirements of this section as a condition of the
facility's coverage under this general permit.
a. An owner or operator of a facility authorized by a Virginia
Pollutant Discharge Elimination System permit first issued before July 1, 2005,
that expands his facility to discharge 40,000 gallons or more per day, or an
equivalent load, shall demonstrate to the department that he has acquired waste
load allocations sufficient to offset any increase in his delivered total
nitrogen and delivered total phosphorus loads resulting from any expansion
beyond his permitted capacity as of July 1, 2005.
b. An owner or operator of a facility authorized by a Virginia
Pollutant Discharge Elimination System permit first issued on or after July 1,
2005, to discharge 40,000 gallons or more per day, or an equivalent load, shall
demonstrate to the department that he has acquired waste load allocations
sufficient to offset his delivered total nitrogen and delivered total
phosphorus loads.
c. An owner or operator of a facility treating domestic sewage
authorized by a Virginia Pollutant Discharge Elimination System permit with a
discharge greater than 1,000 gallons per day up to and including 39,999 gallons
per day that has not commenced the discharge of pollutants prior to January 1,
2011, shall demonstrate to the department that he has acquired waste load
allocations sufficient to offset his delivered total nitrogen and delivered
phosphorus loads prior to commencing the discharge, except when the facility is
for short-term temporary use only or when treatment of domestic sewage is not
the primary purpose of the facility.
2. Offset calculations shall address the proposed discharge
that exceeds:
a. The applicable waste load allocation assigned to the
facility in this general permit, for expanding significant dischargers with a
waste load allocation listed in 9VAC25-720-50 C, 9VAC25-720-60 C, 9VAC25-720-70
C, 9VAC25-720-110 C, and 9VAC25-720-120 C of the Water Quality Management
Planning Regulation;
b. The permitted design capacity, for all other expanding
dischargers; and
c. Zero, for facilities with a new discharge.
3. An owner or operator of multiple facilities located in the
same tributary, and assigned an aggregate mass load limit in accordance with
Part I B 2 of this general permit, that undertakes construction of new or
expanded facilities, shall be required to acquire waste load allocations
sufficient to offset any increase in delivered total nitrogen and delivered
total phosphorus loads resulting from any expansion beyond the aggregate mass
load limit assigned these facilities.
B. Acquisition of waste load allocations. Waste load
allocations required by this section to offset new or increased delivered total
nitrogen and delivered total phosphorus loads shall be acquired in accordance
with this section.
1. Such allocations may be acquired from one or a combination of
the following:
a. Acquisition of all or a portion of the waste load
allocations or point source nitrogen or point source phosphorus credits
from one or more permitted facilities, based on delivered pounds by the
respective trading parties as listed by the department;
b. Acquisition of nonpoint source load allocations, using a
trading ratio of two pounds reduced for every pound to be discharged, through
the use of best management practices that are credits certified by the
board pursuant to § 62.1-44.19:20 of the Code of Virginia or certified by the
Soil and Water Conservation Board pursuant to § 10.1-603.15:2 of the Code
of Virginia. Credits used to offset new or increased nutrient loads under this
subdivision shall be:
(1) Acquired through a public or private entity acting on
behalf of the land owner Subject to a trading ratio of two pounds
reduced for every pound to be discharged if certified by the Soil and Water
Conservation Board pursuant to § 10.1-603.15:2 of the Code of Virginia;
(2) Calculated using best management practices efficiency
rates and attenuation rates, as established by the latest science and relevant
technical information, and approved by the board;
(3) Based on appropriate delivery factors, as established by
the latest science and relevant technical information, and approved by the
board;
(4) Demonstrated to have achieved reductions beyond those
already required by or funded under federal or state law, or by the Virginia
tributaries strategies plans Virginia's Chesapeake Bay TMDL Watershed
Implementation Plan;
(5) Included as conditions of the facility's individual
Virginia Pollutant Discharge Elimination System permit; and
(6) In the case of allocations generated by land use
conversions and urban source reduction controls (BMPs), beyond those in place
as of July 1, 2005;
c. Until such time as the board finds that no allocations are
reasonably available in an individual tributary, acquisition of allocations
through payments made into the Virginia Water Quality Improvement Fund established
in § 10.1-2128 of the Code of Virginia; or
d. Acquisition of allocations through such other means as may
be approved by the department on a case-by-case basis. This includes
allocations granted by the board to an owner or operator of a facility that is
authorized by a VPA permit to land apply domestic sewage if:
(1) The VPA permit was issued before July 1, 2005;
(2) The allocation does not exceed the facility's permitted
design capacity as of July 1, 2005;
(3) The waste treated by the facility that is covered under
the VPA permit will be treated and discharged pursuant to a VPDES permit for a
new discharge; and
(4) The owner or operator installs state-of-the-art nutrient
removal technology at such a facility.
2. Acquisition of allocations or point source nitrogen or
point source phosphorus credits is subject to the following conditions:
a. The allocations or credits shall be generated and
applied to an offset obligation in the same calendar year;
b. The allocations or credits shall be generated in the
same tributary;
c. Such acquisition does not affect any requirement to comply
with local water quality-based limitations, as determined by the board;
d. The allocations are authenticated (i.e., verified to have
been generated) by the permittee as required by the facility's individual
Virginia Pollutant Discharge Elimination permit, utilizing procedures approved
by the board, no later than February 1 immediately following the calendar year
in which the allocations are applied; and
e. If obtained from a permitted point source, the allocations
shall be generated by a facility that has been constructed, and has discharged
from treatment works whose design flow or equivalent industrial activity is the
basis for the facility's waste load allocations.
f. Such allocations or credits shall be provided for a
period of five years with each registration under the general permit.
3. Priority of options. The board shall give priority to
allocations or credits acquired in accordance with subdivisions 1 a and
1, b, and d of this subsection. The board shall approve
allocations acquired in accordance with subdivisions subdivision
1 c and 1 d of this subsection only after the owner or operator has
demonstrated that he has made a good faith effort to acquire sufficient allocations
in accordance with subdivisions 1 a and 1 b of this subsection, and that such
allocations are not reasonably available taking into account timing, cost and
other relevant factors. Such demonstration may include, but not be limited to,
providing a record of solicitation, or other demonstration that point source
allocations or nonpoint source allocations are not available for sale in the
tributary in which the permittee is located.
4. Annual allocation acquisitions from the Water Quality
Improvement Fund. The cost for each pound of nitrogen and each pound of
phosphorus shall be determined at the time payment is made to the WQIF, based
on the higher of (i) the estimated cost of achieving a reduction of one pound
of nitrogen or phosphorus at the facility that is securing the allocation, or
comparable facility, for each pound of allocation acquired; or (ii) the average
cost, as determined by the Department of Conservation and Recreation on an
annual basis, of reducing two pounds of nitrogen or phosphorus from nonpoint
sources in the same tributary for each pound of allocation acquired.
PART III
CONDITIONS APPLICABLE TO ALL VPDES PERMITS
A. Duty to comply. The permittee must comply with all
conditions of the permit. Any permit noncompliance constitutes a violation of
the law and the Clean Water Act, except that noncompliance with certain
provisions of the permit may constitute a violation of the law but not the
Clean Water Act. Permit noncompliance is grounds for enforcement action; for
permit termination, revocation and reissuance, or modification; or denial of a
permit renewal application.
B. Duty to register for reissued general permit. If the
permittee wishes to continue an activity regulated by the general permit after
its expiration date, the permittee must register for coverage under the new
general permit, when it is reissued by the department.
C. Need to halt or reduce activity not a defense. It shall
not be a defense for a permittee in an enforcement action that it would have
been necessary to halt or reduce the permitted activity in order to maintain
compliance with the conditions of the permit.
D. Duty to mitigate. The permittee shall take all reasonable
steps to minimize or prevent any discharge in violation of the permit that has
a reasonable likelihood of adversely affecting human health or the environment.
E. Proper operation and maintenance. The permittee shall at
all times properly operate and maintain all facilities and systems of treatment
and control (and related appurtenances) that are installed or used by the
permittee to achieve compliance with the conditions of the permit. Proper
operation and maintenance also includes adequate laboratory controls and
appropriate quality assurance procedures. This provision requires the operation
of back-up or auxiliary facilities or similar systems that are installed by a
permittee only when the operation is necessary to achieve compliance with the
conditions of the permit.
F. Permit actions. Permits may be modified, revoked and
reissued, or terminated for cause. The filing of a request by the permittee for
a permit modification, revocation and reissuance, or termination, or a
notification of planned changes or anticipated noncompliance does not stay any
permit condition.
G. Property rights. Permits do not convey any property rights
of any sort, or any exclusive privilege.
H. Duty to provide information. The permittee shall furnish
to the department, within a reasonable time, any information that the board may
request to determine whether cause exists for modifying, revoking and
reissuing, or terminating the permit or to determine compliance with the
permit. The board may require the permittee to furnish, upon request, such
plans, specifications, and other pertinent information as may be necessary to
determine the effect of the wastes from his discharge on the quality of state
waters, or such other information as may be necessary to accomplish the
purposes of the law. The permittee shall also furnish to the department upon
request, copies of records required to be kept by the permit, pertaining to
activities related to the permitted facility.
I. Inspection and entry. The permittee shall allow the
director, or an authorized representative (including an authorized contractor
acting as a representative of the administrator), upon presentation of
credentials and other documents as may be required by law, to:
1. Enter upon the permittee's premises where a regulated
facility or activity is located or conducted, or where records must be kept
under the conditions of the permit;
2. Have access to and copy, at reasonable times, any records
that must be kept under the conditions of the permit;
3. Inspect at reasonable times any facilities, equipment
(including monitoring and control equipment), practices, or operations regulated
or required under the permit; and
4. Sample or monitor at reasonable times, for the purposes of
assuring permit compliance or as otherwise authorized by the Clean Water Act
and the law, any substances or parameters at any location.
J. Monitoring and records.
1. Samples and measurements taken for the purpose of
monitoring shall be representative of the monitored activity.
2. The permittee shall retain records of all monitoring
information, including all calibration and maintenance records and all original
strip chart recordings for continuous monitoring instrumentation, copies of all
reports required by the permit, and records of all data used to complete the
application for the permit, for a period of at least three years from the date
of the sample, measurement, report or application. This period of retention
shall be extended automatically during the course of any unresolved litigation
regarding the regulated activity or regarding control standards applicable to
the permittee, or as requested by the board.
3. Records of monitoring information shall include:
a. The date, exact place, and time of sampling or
measurements;
b. The individual(s) who performed the sampling or
measurements;
c. The date(s) analyses were performed;
d. The individual(s) who performed the analyses;
e. The analytical techniques or methods used; and
f. The results of such analyses.
4. Monitoring results must be conducted according to test
procedures approved under 40 CFR Part 136 or alternative EPA-approved methods,
unless other test procedures have been specified in the permit.
K. Signatory requirements. All applications, reports, or
information submitted to the department shall be signed and certified as
required by 9VAC25-31-110.
L. Reporting requirements.
1. The permittee shall give notice to the department as soon
as possible of any planned physical alterations or additions to the permitted
facility. Notice is required only when:
a. The alteration or addition to a permitted facility may meet
one of the criteria for determining whether a facility is a new source in
9VAC25-31-180 A; or
b. The alteration or addition could significantly change the
nature or increase the quantity of pollutants discharged. This notification
applies to pollutants that are subject neither to effluent limitations in the
permit, nor to notification requirements under 9VAC25-31-200 A 1.
2. The permittee shall give advance notice to the department
of any planned changes in the permitted facility or activity that may result in
noncompliance with permit requirements.
3. Permits are not transferable to any person except after
notice to the department. The board may require modification or revocation and
reissuance of permits to change the name of the permittee and incorporate such
other requirements as may be necessary under the law or the Clean Water Act.
4. Monitoring results shall be reported at the intervals
specified in the permit.
a. Monitoring results must be reported on a Discharge
Monitoring Report (DMR).
b. If the permittee monitors any pollutant specifically
addressed by the permit more frequently than required by the permit using test
procedures approved under 40 CFR Part 136, or as specified in the permit, the
results of this monitoring shall be included in the calculation and reporting
of the data submitted in the DMR specified by the department.
c. Calculations for all limitations that require averaging of
measurements shall utilize an arithmetic mean unless otherwise specified in the
permit.
5. Reports of compliance or noncompliance with, or any
progress reports on, interim and final requirements contained in any compliance
schedule of the permit shall be submitted no later than 14 days following each
schedule date.
6. If any unusual or extraordinary discharge including a
bypass or upset should occur from a facility and such discharge enters or could
be expected to enter state waters, the owner shall promptly notify, in no case
later than 24 hours, the department by telephone after the discovery of such
discharge. This notification shall provide all available details of the
incident, including any adverse affects on aquatic life and the known number of
fish killed. The permittee shall reduce the report to writing and shall submit
it to the department within five days of discovery of the discharge in
accordance with subdivision 7 a of this subsection. Unusual and extraordinary
discharges include but are not limited to any discharge resulting from:
a. Unusual spillage of materials resulting directly or
indirectly from processing operations;
b. Breakdown of processing or accessory equipment;
c. Failure or taking out of service of the treatment work or
auxiliary facilities (such as sewer lines or wastewater pump stations); and
d. Flooding or other acts of nature.
7. Twenty-four-hour reporting.
a. The permittee shall report any noncompliance that may
endanger health or the environment. Any information shall be provided orally
within 24 hours from the time the permittee becomes aware of the circumstances.
A written submission shall also be provided within five days of the time the
permittee becomes aware of the circumstances. The written submission shall
contain a description of the noncompliance and its cause; the period of
noncompliance, including exact dates and times, and if the noncompliance has
not been corrected, the anticipated time it is expected to continue; and steps
taken or planned to reduce, eliminate, and prevent reoccurrence of the
noncompliance.
b. The following shall be included as information that must be
reported within 24 hours under this subdivision.
(1) Any unanticipated bypass that exceeds any effluent
limitation in the permit.
(2) Any upset that exceeds any effluent limitation in the
permit.
(3) Violation of a maximum daily discharge limitation for any
of the pollutants listed in the permit to be reported within 24 hours.
c. The board may waive the written report on a case-by-case
basis for reports under this subdivision if the oral report has been received
within 24 hours.
8. The permittee shall report all instances of noncompliance not
reported under subdivisions 4, 5, 6, and 7 of this subsection, in writing at
the time the next monitoring reports are submitted. The reports shall contain
the information listed in subdivision 7 of this subsection.
9. Where the permittee becomes aware that it failed to submit
any relevant facts in a permit application, or submitted incorrect information
in a permit application or in any report to the department, it shall promptly
submit such facts or information.
M. Bypass.
1. The permittee may allow any bypass to occur that does not
cause effluent limitations to be exceeded, but only if it also is for essential
maintenance to assure efficient operation. These bypasses are not subject to
the provisions of subdivisions 2 and 3 of this subsection.
2. Notice.
a. Anticipated bypass. If the permittee knows in advance of
the need for a bypass, it shall submit prior notice, if possible at least 10
days before the date of the bypass.
b. Unanticipated bypass. The permittee shall submit notice of
an unanticipated bypass as required in subdivision L 7 of this section (24-hour
notice).
3. Prohibition of bypass.
a. Bypass is prohibited, and the board may take enforcement
action against a permittee for bypass, unless:
(1) Bypass was unavoidable to prevent loss of life, personal
injury, or severe property damage;
(2) There were no feasible alternatives to the bypass, such as
the use of auxiliary treatment facilities, retention of untreated wastes, or
maintenance during normal periods of equipment downtime. This condition is not
satisfied if adequate back-up equipment should have been installed in the
exercise of reasonable engineering judgment to prevent a bypass that occurred
during normal periods of equipment downtime or preventive maintenance; and
(3) The permittee submitted notices as required under
subdivision 2 of this subsection.
b. The board may approve an anticipated bypass, after
considering its adverse effects, if the board determines that it will meet the
three conditions listed above in subdivision 3 a of this subsection.
N. Upset.
1. An upset constitutes an affirmative defense to an action
brought for noncompliance with such technology-based permit effluent
limitations if the requirements of subdivision 2 of this subsection are met. No
determination made during administrative review of claims that noncompliance
was caused by upset, and before an action for noncompliance, is final
administrative action subject to judicial review.
2. A permittee who wishes to establish the affirmative defense
of upset shall demonstrate, through properly signed, contemporaneous operating
logs, or other relevant evidence that:
a. An upset occurred and that the permittee can identify the
cause(s) of the upset;
b. The permitted facility was at the time being properly
operated;
c. The permittee submitted notice of the upset as required in
subdivision L 7 b (2) of this section (24-hour notice); and
d. The permittee complied with any remedial measures required
under subsection D of this section.
3. In any enforcement proceeding, the permittee seeking to
establish the occurrence of an upset has the burden of proof.
VA.R. Doc. No. R13-3245; Filed September 19, 2012, 3:29 p.m.
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TITLE 11. GAMING
VIRGINIA RACING COMMISSION
Final Regulation
REGISTRAR'S NOTICE:
The Virginia Racing Commission is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia,
which excludes regulations that are necessary to conform to changes in Virginia
statutory law where no agency discretion is involved. The Virginia Racing
Commission will receive, consider, and respond to petitions by any interested
person at any time with respect to reconsideration or revision.
Title of Regulation: 11VAC10-30. Limited Licenses (amending 11VAC10-30-20).
Statutory Authority: § 59.1-369 of the Code of
Virginia.
Effective Date: November 1, 2012.
Agency Contact: David S. Lermond, Jr., Regulatory
Coordinator, Virginia Racing Commission, 10700 Horsemen's Lane, New Kent, VA
23024, telephone (804) 966-7404, FAX (804) 966-7418, or email
david.lermond@vrc.virginia.gov.
Summary:
The amendments conform to changes in Virginia statutory law
as outlined in § 59.1-378.1 of the Code of Virginia.
11VAC10-30-20. Generally.
The commission is authorized to issue limited licenses for
the promotion, sustenance and growth of a native industry, in a manner
consistent with the health, safety and welfare of the people. The horse racing,
with pari-mutuel wagering privileges, shall be conducted by limited licensees
so as to maintain horse racing in the Commonwealth of Virginia of the highest
quality and free of any corrupt, incompetent, dishonest or unprincipled
practices and to maintain in horse racing complete honesty and integrity.
A. Number of racing days. The commission may issue limited
licenses to conduct horse race meetings, with pari-mutuel wagering privileges
on races held at the site, for a period not to exceed 14 days in any calendar
year.
B. Local referendum. The commission shall not grant a limited
license to conduct a horse race meeting, with pari-mutuel wagering privileges,
until a referendum approving the question is held in the county or city in
which the race meeting is to be conducted; however, the commission may, in
accordance with § 59.1-378.1 of the Code of Virginia, grant a limited
license to the owner or operator of a steeplechase facility to conduct
pari-mutuel wagering on steeplechase race meetings for a period not to exceed
14 days in any calendar year if the steeplechase facility has been sanctioned
by the Virginia Steeplechase Association or National Steeplechase Association
and the owner or operator of such facility has been granted tax-exempt status
under § 501(c)(3) or (4) of the Internal Revenue Code.
C. Observance of regulations. The holder of a limited license
shall be charged with the same duties and responsibilities as are the holders
of unlimited licenses with respect to the observance and enforcement of the Act
and the regulations of the commission.
D. Racing surfaces. The holders of limited licenses shall
utilize racing surfaces which are safe and humane for participants and meet
generally accepted standards for the type of racing, but any dirt surface for
flat racing shall be at least one mile in circumference, any turf surface for
flat or jump racing shall be at least seven-eighths of a mile in circumference,
and any dirt surface for Standardbred or Quarter Horse racing shall be at least
five-eighths of a mile.
E. Renewal of limited licenses. Limited licenses are valid
for one calendar year during which the licensee may conduct as many as 14 days
of horse racing with pari-mutuel wagering privileges. A licensee may apply for
a renewal of a limited license by submitting an application to the commission
as set forth in 11VAC10-30-30 of this chapter. An applicant for a renewal of a
limited license may incorporate by reference any information submitted in previous
applications.
VA.R. Doc. No. R13-3393; Filed September 27, 2012, 10:34 a.m.
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TITLE 12. HEALTH
STATE BOARD OF HEALTH
Proposed Regulation
Title of Regulation: 12VAC5-507. Nursing Scholarships
and Loan Repayment Program Requiring Service in a Long-Term Care Facility (adding 12VAC5-507-10 through 12VAC5-507-260).
Statutory Authority: § 32.1-122.6:01 of the Code of
Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: December 21, 2012.
Agency Contact: Aileen Harris, Department of Health, 109
Governor Street, Richmond, VA 23219, telephone (804) 864-7436, or email
aileen.harris@vdh.virginia.gov.
Basis: Section 54.1-3011.2 of the Code of Virginia
establishes the Nursing Scholarship and Loan Repayment Fund, which the Board of
Health and the Board of Nursing, pursuant to § 32.1-122.6:01 of the Code
of Virginia, are to administer. Awarded funds are to be transmitted to the
appropriate institution to be credited to the account of the recipient. Section
32.1-122.6:01 B requires the establishment of a nursing scholarship and loan
repayment program for registered nurses, licensed practical nurses, and
certified nurse aides who agree to perform a period of service in a
Commonwealth long-term care facility pursuant to regulations promulgated by the
Board of Health in cooperation with the Board of Nursing.
Purpose: Regulations to implement the program are
essential to addressing the shortage of trained medical professionals in the
Commonwealth. The primary advantage will be the increase of availability of
adequate, quality nursing care in long-term care facilities. Another advantage
is that the long-term care facilities will be better positioned to retain
qualified nurses because of the obligation created by accepting these
scholarship or loan repayment funds.
Substance: A nursing scholarship and loan repayment
program requiring service in a long-term care facility within the Commonwealth
of Virginia is established. This program is for registered nurses, licensed
practical nurses, and certified nurse aides. Scholarships will be given to
qualifying nurses in exchange for service in the nursing profession in a
long-term care facility in the Commonwealth. The loan repayment portion of the
program will repay educational loans for qualifying applicants in exchange for
service in the nursing profession in a long-term care facility in the
Commonwealth. No funding has been appropriated to implement this program.
Issues: These new regulations will significantly support
the recruitment and retention of nursing staff in long-term care facilities.
The program establishes incentives for certified nurse aids who perform a vital
function in these facilities and currently are not included in any workforce
incentive program. The promulgation of these regulations should not pose any
disadvantage to the public or the Commonwealth. The agency, however, will incur
additional administrative costs, which are not currently covered by any
appropriation. Expanding the qualified pool of long-term care nursing staff is
generally viewed as a major means of improving the quality of care in long term
care nursing facilities.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. Chapters 240
and 254 of the 2000 Acts of Assembly, directed the Board of Health (Board) to
establish a program under which participants receive scholarships or
educational loan repayments in exchange for a period of nursing service in a
long-term care facility (traditionally known as a nursing home). The Board did
not initially promulgate regulations due to the absence of funding. In 2010 it
came to the Board's attention that the regulations still had not been
promulgated, so they elected to move forward so that regulations could be in
place should funding become available in the future. Thus the Board now
proposes these regulations to establish a program under which participants
receive scholarship or educational loan repayment in exchange for a period of
nursing service in a long-term care facility in the Commonwealth.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. The proposed regulations establish
sections relating to legislative authority and general information,
definitions, scholarship rules (eligibility, conditions, number of applications
per student, amounts of scholarships, how to apply, deadline dates) and loan
repayment rules (administration of the nursing loan repayment program,
eligibility, application requirement and restrictions, selection criteria, loan
repayment amount, loans qualifying for repayment, repayment restrictions,
release of information, effective date for start of service, repayment policy,
disbursement procedure, compensation during service, monitoring during service,
terms of service, loan repayment contract, breach of contract, waiver and
suspension, cash reimbursement and penalty, and reporting requirements).
Placing the requirements of the Nursing Scholarships and Loan Repayment Program
Requiring Service in a Long-Term-Care Facility in regulation will be beneficial
in that it will reduce uncertainty for potential scholarship candidates.
Businesses and Entities Affected. The proposed regulations
affect long-term care facilities, traditionally known as a nursing home, including
both skilled nursing facilities and intermediate care facilities depending on
the extent of nursing and related medical care provided. The majority of these
facilities could be small businesses. In Virginia, there are approximately 280
long-term care facilities that could be affected.
Localities Particularly Affected. The proposed amendments do
not disproportionately affect particular localities.
Projected Impact on Employment. If funded, implementation of
the Nursing Scholarships and Loan Repayment Program Requiring Service in a
Long-Term-Care Facility could help alleviate the shortage of nurses in
long-term care facilities.
Effects on the Use and Value of Private Property. If funded,
implementation of the Nursing Scholarships and Loan Repayment Program Requiring
Service in a Long-Term-Care Facility could help alleviate the shortage of
nurses in long-term care facilities.
Small Businesses: Costs and Other Effects. If funded,
implementation of the Nursing Scholarships and Loan Repayment Program Requiring
Service in a Long-Term-Care Facility may marginally reduce the cost of finding
and employing nurses for small long-term care facilities.
Small Businesses: Alternative Method that Minimizes Adverse
Impact. The proposed regulations 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 DPB's best estimate of these economic impacts.
Agency's Response to Economic Impact Analysis: Virginia
Department of Health concurs with the conclusion reached by the Department of
Planning and Budgets economic impact analysis that the benefits will likely
exceed the costs for all proposed changes.
Summary:
The 2000 Acts of Assembly amended § 32.1-122.6:01 of the
Code of Virginia to require the establishment of a program under which
participants can receive scholarship or educational loan repayment in exchange
for a period of nursing service in a long-term care facility in the
Commonwealth. By providing these scholarship or loan repayment funds to
eligible recipients, Virginia hopes to reduce its nursing shortage, especially
in long-term care facilities. Until now, regulations for this section of the
Code of Virginia have not been promulgated because no funding is available to
implement this program.
NURSING SCHOLARSHIP AND LOAN REPAYMENT PROGRAM REQUIRING
SERVICE IN A LONG-TERM CARE FACILITY
Part I
Legislative Authority and General Information
12VAC5-507-10. Legislative authority and general information.
Sections 32.1-122.6:01 of the Code of Virginia provides
the Board of Health the authority to award certain nursing scholarships and
loan repayment funds. Fee requirements are specified in §§ 54.1-3011.1 and
54.1-3011.2 of the Code of Virginia to establish the nursing scholarship and
loan repayment fund.
All scholarship and loan repayment award recommendations
will be made by the Nursing Scholarship Advisory Committee appointed by the
State Board of Health. The commissioner may act for the Board of Health when it
is not in session. The committee shall consist of eight members: four deans or
directors of schools of nursing, two former scholarship participants, and two
members with experience in the administration of student financial aid programs.
Committee appointments are for two-year terms and members may not serve for
more than two successive terms.
The Virginia Department of Health serves as the staff
element to the advisory committee and plays no role in the determination of
scholarship or loan repayment participants.
After scholarships are awarded, depending upon
availability of funds, nursing educational loans will be repaid for those
registered nurses, licensed practical nurses, and certified nurse aides
applying and meeting eligibility criteria as set forth in this chapter.
This chapter sets forth the criteria for eligibility for
the scholarship and loan repayment program for registered nurses, licensed
practical nurses, or certified nurse aides; the general terms and conditions
applicable to the obligation of each scholarship and loan repayment participant
to practice in a long-term-care facility in the Commonwealth; and penalties for
a participant's failure to fulfill the practice requirements.
12VAC5-507-15. Definitions.
The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Board" or "Board of Health" means the
State Board of Health.
"Certified nurse aide" or "CNA" means
an individual who has completed a nurse aide education program that is approved
by the Board of Nursing, successfully passed the competency evaluation, and
made application and been given certification by the Board of Nursing in the
Commonwealth of Virginia.
"Commercial loans" means loans made by banks,
credit unions, savings and loan associations, insurance companies, schools, and
either financial or credit institutions that are subject to examination and
supervision in their capacity as lenders by an agency of the United States or
of the state in which the lender has its principal place of business.
"Commissioner" means the State Health
Commissioner.
"Department" means Virginia Department of
Health.
"Full-time" means at least 32 hours per week for
45 weeks per year.
"Licensed practical nurse" or "LPN"
means a nurse who has completed a practical nurse program and is licensed by
the Commonwealth of Virginia to provide routine care under the supervision of a
licensed medical practitioner, a professional nurse, registered nurse,
registered professional nurse, or other licensed health professional authorized
by regulations of the Board of Nursing.
"Long-term care facility" means a licensed
facility in the Commonwealth traditionally known as a nursing home, including
both skilled nursing facilities and intermediate care facilities depending on
the extent of nursing and related medical care provided.
"Participant" or "loan repayment
participant" means an eligible registered nurse, a licensed practical
nurse, or a certified nurse aide student or graduate who enters into a contract
with the commissioner and participates in the scholarship or loan repayment
program.
"Interest" means the legal rate of interest
pursuant to the Code of Virginia.
"Penalty" means the amount of money equal to
twice the amount of all monetary payments to the scholarship or loan repayment
participant, less any service obligation completed.
"Reasonable educational expenses" means the
costs of education, exclusive of tuition, that are considered to be required by
the school's degree program or an eligible program of study, such as fees for
room, board, transportation and commuting costs, books, supplies, educational
equipment and materials, and travel that was a part of the estimated student
budget of the school in which the participant was enrolled.
"Registered nurse" or "RN" means a
nurse who has passed a state registration examination and has been licensed to
practice nursing by the Board of Nursing in the Commonwealth of Virginia.
Part II
Administration of Nursing Scholarship Program
12VAC5-507-20. Eligibility for scholarships.
In order to be considered for a scholarship, applicants
must meet the following criteria:
1. Be a bona fide resident of Virginia for at least one
year as determined by § 23-7.4 of the Code of Virginia;
2. Be accepted for enrollment or enrolled in an approved
nursing education program preparing them for examination for licensure as
practical nurses or registered nurses or accepted for enrollment or enrolled in
an approved nurse aide education program preparing them for certification;
3. Submit a completed application form and appropriate
grade transcript prior to the established deadline dates; and
4. Demonstrate financial need which is verified by the
financial aid officer/authorized person.
Failure to comply with all of these criteria will cause
the applicant to be ineligible for a scholarship.
12VAC5-507-30. Conditions of scholarships.
For each $100 of scholarship money received, the
participant agrees to engage in the equivalent of one month of full-time
nursing practice in a long-term care facility in the Commonwealth. Employment
must begin within 90 days of the participant's graduation date. Voluntary
military service, even if stationed in Virginia, cannot be used to repay the
service obligation required when a scholarship is awarded.
The participant shall notify the department in writing of
his employment location within 30 days of his employment at a long-term care
facility in the Commonwealth.
The participant may request approval of a change of employment.
The board in its discretion may approve such a request.
If a participant fails to complete his studies, the full
amount of the scholarship or scholarships received, plus applicable interest
charge, must be repaid.
If upon graduation a participant leaves the state or fails
to engage or ceases to engage in nursing practice in a long-term care facility
in Virginia before all employment conditions of the scholarship award are
fulfilled, the participant must repay the award amount reduced by the proportion
of obligated years served plus applicable interest and penalty.
If the participant is in default due to death or permanent
disability so as not to be able to engage in nursing practice in a long-term
care facility, the participant or his personal representative may be relieved
of this obligation under the contract to engage in nursing practice upon
repayment of the total amount of scholarship or loan repayment funds received
plus applicable interest. For participants completing part of the nursing obligation
prior to becoming permanently disabled or in the event of death, the total
amount of scholarship or loan repayment funds owed shall be reduced by the
proportion of obligated years served. The obligation to make restitution may be
waived by the board upon application of the participant or the participant's
estate to the board.
Individual cases of hardship may be considered by the
board for forgiveness of payment or service.
Partial fulfillment of the participant's obligation shall
reduce the amount of restitution plus penalty and applicable interest due by an
amount of money equal to the same percentage of time employed.
All refund checks should be made payable to the
Commonwealth of Virginia.
Before any scholarship is awarded, the applicant must sign
a written contract agreeing to the terms established by law and the Board of
Health.
12VAC5-507-40. Number of applications per student.
Scholarships are awarded for single academic years.
However, the same student may, after demonstrating satisfactory progress in his
studies, apply for and receive scholarship awards for any succeeding academic
year or years. No student may receive scholarships for more than a total of
four years.
12VAC5-507-50. Amounts of scholarships.
The amount of each scholarship award is dependent upon the
amount of money appropriated by the General Assembly and the number of
qualified applicants. No participant will receive an award for less than
$150.
12VAC5-507-60. How to apply.
Application, guidelines, and additional information may be
available from the dean/director of a nursing program or from the financial aid
office or from the department.
It is preferred that applications are completed online by
going to the department's website.
12VAC5-507-70. Deadline dates.
Applications will not be accepted more than two months in
advance of the deadline, which is June 30.
Applications or transcripts received after 5 p.m. on
the above date will not be considered for scholarship awards.
Part III
Administration of the Nursing Loan Repayment Program
12VAC5-507-80. Administration of the nursing loan repayment
program.
The commissioner, as executive officer of the Board of
Health, shall administer this program. Any requests for variance from this
chapter shall be considered on an individual basis by the board.
12VAC5-507-90. Eligible applicants.
An eligible applicant for the nursing loan repayment
program must:
1. Be a bona fide resident of Virginia for at least one
year as determined by § 23-7.4 of the Code of Virginia;
2. Be a registered nurse, licensed practical nurse, or
certified nurse aide;
3. Have graduated from an approved educational program
pursuant to Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of
Virginia;
4. Have a valid unrestricted Virginia license to practice nursing
or be certified as a nurse aide, a copy of which shall be furnished to the
nursing loan repayment program;
5. Have submitted a completed application to participate in
the nursing loan repayment program; and
6. Have signed and submitted a written contract agreeing to
repay educational loans and to serve in a long-term care facility for the
applicable period of obligated service in the Commonwealth.
12VAC5-507-100. Application requirement and restrictions.
The applicant must submit a completed application for loan
repayment for the nursing loan repayment program, and the application must be
received in the department between the dates of January 1 and May 1 of the year
in which the applicant intends to initiate practice in the Commonwealth. The
applicant must agree to serve a minimum of one year for a loan amount up to
$1,200 to a maximum of four years for a loan amount up to $4,800.
12VAC5-507-110. Selection criteria.
Applicants shall be competitively reviewed and selected
for participation in the nursing loan repayment program based upon the
following criteria:
1. Commitment to serve in a long-term care facility. The
individual's stated commitment to serve in a long-term care facility in the
Commonwealth.
2. Virginia graduates. Preferential consideration will be
given to individuals who are graduates of Virginia nursing schools
(verification will be obtained by the nursing loan repayment program).
3. Availability for service. Individuals who are
immediately eligible and available for service in a long-term care facility
will be given preferential consideration.
4. Length of proposed commitment. Preferential
consideration will be given to individuals who commit to longer periods of
service in a long-term care facility.
5. Selection for participation. All of an individual's
professional qualifications and competency to practice will be considered,
including but not limited to certification in a specialty, professional
achievements, and other indicators of competency received from supervisors and
program directors.
6. No other obligations. Individuals shall have no other
obligation for health professional service to the federal government or state
government unless such obligation will be completely satisfied prior to the
beginning of service under the nursing loan repayment program.
12VAC5-507-120. Loan repayment amount.
The amount that the state agrees to repay will depend upon
availability of funds and the applicant's indebtedness, but no amount will
exceed the total indebtedness. The nursing loan repayment program requires one
year of service in a long-term care facility in the Commonwealth for up to
$1,200 in loans paid by this program.
12VAC5-507-130. Loans qualifying for repayment.
Based on the availability of funds, the loan repayment
program will pay for the cost of education necessary to obtain a nursing
certificate, diploma, or degree. The program will pay toward the outstanding
principal, interest, and related expense of federal, state, or local government
loans and commercial loans obtained by the participant for:
1. School tuition and required fees incurred by the
participant;
2. Other reasonable educational expenses; and
3. Reasonable living expenses as determined by the board.
12VAC5-507-140. Repayment restrictions.
A. The following financial debts or service obligations
are not qualified for repayment by the loan repayment program:
1. Public Health Service Nursing Shortage Area Scholarship;
2. Public Health and National Health Service Corps
Scholarship Training Program;
3. Indian Health Service Scholarship Program;
4. Armed Forces Health Professions Scholarship Programs;
5. National Health Service Corps Scholarship Program
financial damages or loans obtained to repay such damages;
6. Indian Health Corps Scholarship or loan obtained to
repay such damages;
7. Financial damages or loans obtained to repay damages
incurred as a result of breach of contract with any other federal, state, local
agency, or commercial institution;
8. Loans for which documentation verifying the educational
use of the loans is not available or is not sufficient;
9. Loans or part of loans obtained for educational or
personal expenses during the participant's education that exceed the
"reasonable" level as determined by the school's standard budget in
the year the loan was made;
10. Loans that have been repaid in full, and loans that
incur their own obligation for service that has not yet been performed;
11. Loans from friends and relatives;
12. The Mary Marshall Nursing Scholarship Program; and
13. The Nursing Scholarship Program with a commitment to
service in a long-term care facility.
B. The board will be the final authority in determining
qualifying educational loans.
12VAC5-507-150. Release of information.
Applicants shall agree to execute a release to allow the
board access to loan records, credit information, and information from lenders
necessary to verify eligibility and to determine loan repayments. To facilitate
the process, applicants should submit pay-off statements from each lending institution.
Participants who have consolidated qualifying loans with
other loans may be asked to submit other documentation, such as copies of
original loan applications, to verify the portion of the loan that qualifies
for repayment.
The applicant is required to submit all requested loan
documentation prior to approval by the board.
12VAC5-507-160. Effective date for start of service.
Applicants become participants in the loan repayment
program only when the applicant and the commissioner or his designee have
signed the loan repayment program contract. The effective start date of the
obligated service under contract is the date of employment in a long-term care
facility or the date of the commissioner's signature, whichever is later.
12VAC5-507-170. Repayment policy.
It will be the responsibility of the participant to
negotiate with each lending institution for the terms of the educational loan
repayments. Each lending institution must certify that the participant's debt
is a valid educational loan prior to payment by the loan repayment program. Any
penalties associated with early repayment shall be the responsibility of the
participant.
12VAC5-507-180. Disbursement procedure.
The financial institution holding the educational loan
will be paid one lump sum payment. This payment will be credited to the account
of the participant in an amount up to $1,200 for a one year commitment within
45 days of the contract being signed by the applicant and the commissioner or
his designee. If a participant wishes to commit to another year of service, he
will be required to sign another contract. Depending on availability of funds,
the nursing loan repayment program will pay the applicable financial
institution another lump sum payment up to $1,200 for the additional year commitment.
Payment will be made approximately 45 days after the beginning of the
subsequent year. The maximum number of loans a participant can receive is four.
12VAC5-507-190. Compensation during service.
Each participant is responsible for negotiating his own
compensation package directly with the site where he will provide nursing
services in a long-term care facility.
12VAC5-507-200. Monitoring during service.
Monitoring of the service by participants shall be
conducted on an ongoing basis by department staff. Service verification forms
shall be submitted by the participant to the department semi-annually (every
six months) and countersigned by a representative of the service site (e.g.,
the medical director, human resource coordinator, chief executive officer,
etc.) certifying continuous full-time service by participants.
The participant is required to maintain practice records
in a manner that will allow the department to readily determine if the
individual has complied with or is complying with the terms and conditions of
the participation agreement.
12VAC5-507-210. Terms of service.
The following are the terms of service for the loan
repayment program:
1. The participant shall contract to provide one year of
service with a maximum of up to four years in whole year increments. Additional
service beyond the one year commitment is dependent upon the availability of
state funds for the nursing loan repayment program. An existing contract may be
renewed for one year at a time up to a maximum of four years as funds become
available;
2. The participant shall begin service within 90 days from
entering into the contract;
3. The participant shall provide full-time service. Time
spent in an "on-call" status will not count toward the number of
hours worked per week. Any exceptions to the "on-call" provisions of
this subdivision must be approved in advance by the board prior to acceptance
in the loan repayment program.
4. No period of advanced training may count toward
satisfying a period of obligated service under this loan repayment program;
12VAC5-507-220. Loan repayment contract.
Prior to becoming a participant in the nursing loan
repayment program, the applicant shall enter into a contract with the board
agreeing to the terms and conditions upon which the loan repayment is granted.
The contract shall:
1. Include the terms and conditions to carry out the
purposes and intent of this program;
2. Provide that the participant will be required to provide
nursing services in a long-term care facility in the Commonwealth for a minimum
period of one year;
3. Provide for repayment of all amounts paid, plus interest
and penalties, less any service time if the participant is found to be in
breach of contract;
4. Be signed by the applicant; and
5. Be signed by the commissioner or her designee.
Part IV
Contract
12VAC5-507-230. Breach of contract.
The following may constitute breach of contract:
1. Participant's failure to begin or complete his term of
obligated service in a long-term care facility under the terms and conditions
of the nursing loan repayment contract, regardless of the length of the agreed
period of obligated service;
2. Participant's falsification or misrepresentation of
information or misrepresentation of information on the program application or
verification forms or other required document;
3. Participant's employment being terminated for good cause
as determined by the employer and confirmed by the department. If employment is
terminated for reasons beyond the participant's control (e.g., closure of
site), the participant must transfer to another long-term care facility site in
the Commonwealth within six months of termination. Failure of participant to
transfer to another site shall be deemed to be a breach of the contract; and
4. Participant's failure to provide all reasonable, usual,
and customary full-time health care service in a long-term care facility for at
least 45 weeks per year.
12VAC5-507-240. Waiver or suspension, or both.
Participants have the obligation to complete full-time
continuous service for the period of their entire commitment. Under unusual
circumstances (e.g., illness), a participant may request that the board agree
to a postponement of the service obligation. This postponement, if granted,
will not relieve the participant of the responsibility to complete the
remaining portion of the obligation. Such postponement will not be permitted as
a matter of course, but may be allowed in the most compelling cases.
If the participant is in default due to death or permanent
disability, the obligation to make restitution may be waived by the board upon
application of the participant or the participant's estate to the board.
12VAC5-507-250. Cash reimbursement and penalty.
Participants who serve less than their obligated service
are liable to pay monetary damages to the Commonwealth as stated in the
contract, reduced by the proportion of obligated years served. The default
penalty will require the participant to repay twice the total amount of the
award received. For example, if a participant owes $1,200, he would have to
repay at total of $2,400.
Participants who serve less than their obligated service
due to permanent disability or in the event of death shall have the total
amount of scholarship or loan repayment funds owed reduced by the proportion of
obligated years served.
Part V
Records and Reporting
12VAC5-507-260. Reporting requirements.
Reporting requirements of the loan repayment participant
are as follows:
1. Each participant shall at any time provide information
as required by the board to verify compliance with the practice requirements of
the nursing loan repayment program (e.g., verification of employment in a
long-term care facility).
2. Each participant shall promptly notify the board in
writing within 30 days before any of the following events occur:
a. Participant changes name;
b. Participant changes address;
c. Participant changes practice site;
d. Participant no longer intends to fulfill service
obligation as a nurse in the Commonwealth in a long-term care facility; or
e. Participant ceases to practice as a registered nurse,
licensed practical nurse, or certified nurse aide.
VA.R. Doc. No. R10-1890; Filed September 20, 2012, 4:18 p.m.
Proposed Regulation
Title of Regulation: 12VAC5-540. Rules and
Regulations for the Identification of Medically Underserved Areas in Virginia (amending 12VAC5-540-10 through 12VAC5-540-40).
Statutory Authority: §§ 32.1-12 and 32.1-122.5 of
the Code of Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: December 21, 2012.
Agency Contact: Kenneth Studer, Department of Health,
109 Governor Street, Richmond, VA 23219, telephone (804) 864-7428, or email
ken.studer@vdh.virginia.gov.
Basis: The Board of Health is authorized pursuant to § 32.1-122.5
of the Code of Virginia to establish criteria to identify primary care
medically underserved areas within the Commonwealth and specify the data
calculations to be used to estimate the level of underservice. The Board of
Health is also to include criteria to estimate need for medical services in state
facilities operated by the Departments of Corrections, Juvenile Justice,
and Behavioral Health and Developmental Services.
Purpose: The regulations require updating because
certain state programs and private funding sources depend on the accuracy of the
Virginia Medically Underserved Area designation process in awarding funds to
health providers and to communities. All of the changes are in response to the
availability of new data sources allowing more timely designation of
underserved areas. The designation process is designed to encourage the
appropriate distribution and expansion of healthcare services into areas often
lacking in such services thereby improving the public's health and welfare.
Substance: The recommended changes are designed to:
1. Allow state facilities to be automatically designated as
Virginia Medically Underserved Areas.
2. Incorporate new state incentive programs into the Virginia
Medically Underserved Program description.
3. Allow new data sources to be used in computing Virginia Medically
Underserved Areas.
4. Establish a minimum five year update and renewal cycle for
designation of Virginia Medically Underserved Areas.
Issues: The changes are required to make the regulations
compatible with current medical and nursing scholarship regulations and to
appropriately use new data sources that were not previously available. The
regulatory action poses no disadvantage 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
Health (the board) proposes to 1) automatically designate the state facilities
operated by the Departments of Corrections, Juvenile Justice, and Behavioral
Health and Developmental Services as Virginia Medically Underserved Areas
(VMUA), 2) update the data sources to be used in computing VMUA designations
and establish a minimum of five years of update and renewal cycle for
designations, and 3) remove outdated information regarding scholarship programs
that are affected by the designation.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. These regulations establish criteria
for VMUA designation. The criteria are required to be quantifiable measures,
sensitive to the unique characteristics of urban and rural jurisdictions. The
purpose of identifying medically underserved areas within the Commonwealth is
to establish geographic areas in need of additional primary healthcare
services. The VMUA designation is a targeting device that assists individual
practitioners, medical facilities (e.g., clinics, hospitals), and communities
in recruiting health professionals, obtaining foundation grants, qualifying for
special services, etc.
VMUA designation is designed to encourage the appropriate
distribution and expansion of healthcare services into areas where Virginia
citizens often lack access to healthcare. State, private, and sometimes federal
funding programs and agencies rely on VMUA designation to allocate their limited
resources to provide incentives.
According to the Virginia Department of Health (VDH), VMUA
designation has a direct impact on Nurse Practitioner/Nurse Midwife Scholarship
allocations in Virginia. Also, Virginia Health Care Foundation, hospital
conversion foundations, and other healthcare foundations use VMUA as acceptable
criteria for grant applications. Moreover, federal regulations allow Virginia
to develop criteria for qualifying areas for rural health clinic development.
Rural health clinics are designed to recruit and retain providers in
underserved areas through a cost-based reimbursement mechanism. Furthermore,
Virginia may establish criteria for the placement of J-1 Waiver physicians in
federal and state designated health professional shortage areas. A J-1 Waiver
relieves an international medical graduate from the obligation of returning to
his or her home country for two years, and allows the physician to apply for an
immigration status that would allow him or her to remain in the U.S. Finally, VDH
expects that once the VMUA criteria are updated according to the proposed
changes and maintained regularly, the designations will be more generally used
as a health planning tool and as a recognized set of criteria for evaluating
healthcare shortages in the Commonwealth.
One of the proposed changes will allow the board to
automatically designate the state facilities operated by the Departments of
Corrections, Juvenile Justice, and Behavioral Health and Developmental Services
as VMUA. While the board has had this authority since 1990 under § 32.1-122.5
of the Code of Virginia, the regulatory language has never included this
authority. Since this authority has not been in the regulations, the Board has
never designated these state facilities as VMUA. The proposed changes will add
this authority in the regulations and allow the Board to designate the state
facilities as VMUA. According to VDH, Departments of Corrections, Juvenile
Justice, and Behavioral Health and Developmental Services respectively have 39,
11, and 16 facilities which may be automatically designated as VMUA.
The main benefit of this change will fall on the 66 state
facilities operated by the three departments. These facilities will be able to
attract nurse practitioners and midwives through the Commonwealth's Nurse
Practitioner/Nurse Midwife Scholarship program. These facilities may also be
approved for grant applications by various healthcare foundations and for J-1
Waiver recommendation by the United States Department of State. Since most of
the benefits will depend on the decision of other entities on whether to rely
on the VMUA designations, the exact extent of the potential benefits is unknown
at this time.
The main cost of this change will fall on the areas that are
currently designated as VMUA.1 These areas will have to share the
same available resources with 66 additional state facilities which may reduce
the amount of benefits they currently receive due to VMUA designation.
Other proposed changes will update the data sources to be used
in computing VMUA designations and establish a minimum of five years of update
and renewal cycle for designations. According to VDH, these regulations were
last revised in 1991 and have not been reviewed since that time. Since then,
new and improved data sources have become available to assess the demographic
characteristics indicative of areas with inadequate primary healthcare
resources.
Similar to the previous change, the main cost of this change
will fall on the areas that are currently designated as VMUA.2 With
the use of new data, some of the areas that are currently designated as VMUA
may no longer be designated as VMUA. However, VDH believes only one or two
areas might lose their current VMUA designation based on an experimentation
with the data a few years ago.
On the other hand, areas that will become newly designated as
VMUA due to use of new data will be the ones to mainly benefit from this
change. These areas may enjoy an influx of state scholarships for nurse
practitioners and midwives and grants made available by various healthcare
associations and foundations.
In addition, updating the VMUA designations at least once in
every five years is expected to keep up with the demographic changes that may
occur and result in more accurate identification of areas that remains truly
underserved over time.
The use of newer and improved data and frequent updates are
also expected to more accurately identify the areas that are truly in need of
additional primary healthcare resources. Due to this improvement in
methodology, there is a chance that the federal government may start relying on
the Commonwealth's VMUA designations and make new federal resources available
to the designated areas.
Finally, the proposed changes will remove outdated information
regarding scholarship programs that are affected by the designation. This
particular change is not expected to create any significant economic effects
other than improving the clarity of the regulations.
Businesses and Entities Affected. These regulations directly
affect beneficiaries of VMUA designation. According to VDH, there are
approximately 500 community and business entities supported by the designation
process. In addition, the proposed changes will add 66 state facilities to the
list of beneficiaries.
Localities Particularly Affected. The proposed regulations
apply throughout the Commonwealth. However, areas designated as VMUA under the
current regulations include the counties of Accomack, Alleghany, Bath, Bland,
Brunswick, Buchanan, Caroline, Charlotte, Dickenson, Essex, Greensville,
Halifax, Henry, Highland, Lancaster, Lee, Louisa, Lunenburg, Mecklenburg,
Northampton, Northumberland, Nottoway, Page, Patrick, Pittsylvania, Richmond,
Russell, Scott, Smyth, Surry, Sussex, Tazewell, Washington, Westmoreland, Wise,
and Wythe and the cities of Bristol, Clifton Forge, Covington, Danville,
Emporia, Martinsville, and Norton. The proposed changes may remove VMUA
designation from one or two of these areas while some other areas may be newly
designated.
Projected Impact on Employment. The proposed changes may affect
the distribution of statewide public scholarships by changing the list of
VMUAs. Thus, supply of certain healthcare professionals may increase for
facilities that may newly be designated as VMUA and decrease for those losing
their designation. Similarly, statewide distribution of private grants may be
altered by the proposed changes. Thus, facilities with new VMUA designation may
see an increase in their demand for labor due to influx of additional grant funds,
while those losing their designation may experience a decrease in their demand
for labor.
Additionally, if the improvement in the VMUA designation
process due to new data results in federal government relying on Commonwealth's
VMUA designations and making new federal resources available to the designated
areas, we can expect to see an effect on employment. For example, federal rural
health clinic development designation would be expected to increase demand for
healthcare professionals as additional clinics would be established in VMUAs.
Also, federal J-1 Waiver designations would add to the supply of physicians
available in VMUAs.
Effects on the Use and Value of Private Property. Asset value
of privately owned beneficiaries of scholarships or grants may increase if they
are newly designated as VMUA. On the other hand, their asset values may
decrease if they lose their VMUA designation.
Small Businesses: Costs and Other Effects. While there is no
data to conclusively identify the small businesses affected by the proposed
changes, it is believed that most of the approximately 500 community and
business entities supported by the designation process are non-profit community
groups such as free clinics and community health centers. The costs and other
effects on the affected small businesses would be the same as discussed above.
Small Businesses: Alternative Method that Minimizes Adverse
Impact. The proposed regulations would have an adverse impact on small
businesses that are current beneficiaries of the VMUA designation, but would
lose some or all of their benefits once the proposed regulations become
effective. There is no known alternative that minimizes the adverse impact
while accomplishing the same goals.
Real Estate Development Costs. No direct effect 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.
_____________________________
1 VMUAs as of September 2006 include counties of
Accomack, Alleghany, Bath, Bland, Brunswick, Buchanan, Caroline, Charlotte,
Dickenson, Essex, Greensville, Halifax, Henry, Highland, Lancaster, Lee, Louisa,
Lunenburg, Mecklenburg, Northampton, Northumberland, Nottoway, Page, Patrick,
Pittsylvania, Richmond, Russell, Scott, Smyth, Surry, Sussex, Tazewell,
Washington, Westmoreland, Wise, Wythe, and cities of Bristol, Clifton Forge,
Covington, Danville, Emporia, Martinsville, Norton.
2 Ibid.
Agency's Response to Economic Impact Analysis: Virginia
Department of Health concurs with the conclusion reached by the Department of
Planning and Budget's economic impact analysis that the benefits for the
proposed changes will exceed the costs incurred in updating and identifying
medically underserved areas in Virginia in accordance with the amended
regulations.
Summary:
The proposed amendments (i) automatically designate the
state facilities operated by the Departments of Corrections, Juvenile Justice,
and Behavioral Health and Developmental Services as Virginia Medically
Underserved Areas (VMUA); (ii) update the data sources to be used in computing
VMUA designations and establish a minimum of five years of update and renewal
cycle for designations; and (iii) remove outdated information regarding
scholarship programs that are affected by the designation.
Part I
General Information
12VAC5-540-10. Authority.
In accordance with the provisions of § 32.1-122.5 of the
Code of Virginia, the State Board of Health is required to establish criteria
for determining medically underserved areas within the Commonwealth and
include in these criteria the need for medical care services in the state
facilities operated by the Departments of Corrections, Juvenile Justice, and
Behavioral Health and Developmental Services. The criteria are required to
be quantifiable measures, sensitive to the unique characteristics of urban and
rural jurisdictions.
12VAC5-540-20. Purpose.
The purpose of identifying medically underserved areas within
the Commonwealth is to establish geographic areas in need of additional primary
health care services. These areas may be selected by trained primary care
physicians and other health professionals as practice sites in fulfillment of
obligations that the physicians and other health professionals accepted in
return for medical training and scholarship grant assistance. Each year of
practice in a medically underserved area satisfies the repayment requirement of
a year of scholarship support from the Virginia Medical Scholarship Program.
Additionally, these medically underserved areas will be eligible locations for
practicing primary care physicians and other health professionals participating
in the state or federal physician loan repayment programs. Further, these
medically underserved areas may become eligible for assistance, state or
federal, to establish primary care medical centers.
Part II
Designating Medically Underserved Areas
12VAC5-540-30. Criteria for determining medically underserved
areas.
The following five criteria, as available, and as indicated,
shall be used to evaluate and identify medically underserved areas throughout
the Commonwealth of Virginia and the criteria shall be applied at a minimum
five-year interval using the most recent data available to update the
designations:
1. Percentage of population with income at or below 100% of
the federal poverty level. The source for these data shall be the most recent
available publication of the Bureau of the Census of the U.S. Department of
Commerce or appropriate intercensorial estimates of poverty accepted by the
Health Resources and Services Administration Shortage Designation Branch for
federal health professional shortage area and medically underserved area
designations.
2. Percentage of population that is 65 years of age or older.
The source for these data shall be the Bureau of the Census of the U.S.
Department of Commerce, or the latest estimates from the Weldon Cooper Center
for Public Service at the University of Virginia, or the Economic Services
Division of the Virginia Employment Commission.
3. The primary care physician to population ratio. The source
for these data shall be the Department of Family Practice of the Medical
College of Virginia of Virginia Commonwealth University Virginia
Department of Health Professions, Board of Medicine physician profile database.
Primary care physicians are defined as board certified or self-designated
generalist practitioners who practice family medicine, pediatrics, internal
medicine, or obstetrics/gynecology.
4. The four-year aggregate infant mortality rate. The source
for these data shall be the Center most recent four-year infant
mortality data for each jurisdiction from the Division of Health Statistics
of the Virginia Department of Health.
5. The most recent annual seasonally adjusted
quarterly civilian unemployment rate for each jurisdiction. The
source for these data shall be the Information Services Division of the
Virginia Employment Commission.
12VAC5-540-40. Application of the criteria.
A. Determining medically underserved cities and counties. The
criteria enumerated in 12VAC5-540-30 shall be used to construct a numerical
index by which the relative degree of medical underservice shall be calculated
for each city and county within the Commonwealth. Observations for each of the
five criteria will be listed for each Virginia city and county. An interval
scale will be used to assign a particular value to each observation. This will
be done for each of the five criteria. Each interval scale will consist of four
ranges or outcomes of observations. The ranges will be numerically equal. The
four ranges will be labeled as Level 1, Level 2, Level 3, and Level 4. The
numerical difference between the ranges will be established beginning with the
Level 2 range.
The Level 2 range shall have the statewide average for each
respective criterion, except the population to primary care physician ratio, as
its upper limit. The Level 2 upper limit for the primary care physician to
population ratio is established by dividing the difference between the Level 4
upper limit for this criterion and the Level 1 upper limit by two. Each
observation which is equal to or less than the Level 2 upper limit, but greater
than the Level 1 upper limit, will be assigned a numerical value of two.
The Level 1 range shall have an upper limit which is the
quotient of the statewide average divided by two. For the ratio of population
to primary care physician criterion, the upper limit of Level 1 shall be the
ratio 2500:1 as recommended by the American Academy of Family Physicians. Each
observation that is equal to or less than the Level 1 upper limit will be
assigned a numerical value of one.
The Level 3 range shall have an upper limit that is equal to
the sum of the upper limit of the Level 1 range and the upper limit of the
Level 2 range. For the ratio of population to primary care physician criterion,
the upper limit of level 3 shall be established at 3500:1, the federal standard
for designating health manpower shortage areas. Each observation that is equal
to or less than the Level 3 upper limit will be assigned a numerical value of
three.
The Level 4 range will include any observation greater than
the upper limit of Level 3 range. Each observation in the Level 4 range will be
assigned a numerical value of four.
The values for each of the ranges of the five criteria will
be summed for each Virginia city and county. Each Virginia city and county will
have an assigned value of five or greater, to a maximum of 20. A statewide
average value will be determined by summing the total city and county values
and dividing by the number of cities and counties. Any city or county assigned
a value that is greater than the statewide average value shall be considered
medically underserved. The application of criteria for determining medically
underserved cities and counties shall be performed annually and published by
the board.
B. Determining medically underserved areas within cities and
counties. Geographic subsections of cities or counties may be designated as
medically underserved areas when the entire city or county is not eligible if
the subsection has: (i) a population to primary care physician ratio equal to
or greater than 3500:1; and (ii) a population whose rate of poverty is greater
than the statewide average poverty rate; and (iii) a minimum population of
3,500 persons residing in a contiguous, identifiable, geographic area. The
board shall from time to time, on petition of any person, or as a result of its
own decision, apply criteria for determining medically underserved subareas of
cities and counties. Once determined to be medically underserved, any subarea
of a city or county shall appear on the next list of medically underserved
areas published by the board. Areas which qualify as medically underserved
areas under 12VAC5-540-40 A and that are within Standard Metropolitan Areas as
defined by the U.S. Department of Commerce, must also qualify under this
section for purposes of placement of health professionals.
C. Medical care services in state facilities operated by
the Departments of Corrections, Juvenile Justice, and Behavioral Health and
Developmental Services will be deemed Virginia medically underserved areas.
VA.R. Doc. No. R10-2199; Filed September 20, 2012, 9:16 a.m.
Final Regulation
REGISTRAR'S NOTICE:
The State Board of Health is claiming an exemption from the Administrative
Process Act in accordance with (i) § 2.2-4006 A 4 a of the Code of
Virginia, which excludes regulations that are necessary to conform to changes
in Virginia statutory law where no agency discretion is involved and (ii) § 2.2-4006
A 3 of the Code of Virginia, which excludes regulations that consist only of
changes in style or form or corrections of technical errors. The State Board of
Health will receive, consider, and respond to petitions by any interested
person at any time with respect to reconsideration or revision.
Title of Regulation: 12VAC5-600. Waterworks Operation
Fee (amending 12VAC5-600-10, 12VAC5-600-20,
12VAC5-600-30, 12VAC5-600-50, 12VAC5-600-60, 12VAC5-600-70, 12VAC5-600-100,
12VAC5-600-110).
Statutory Authority: §§ 32.1-12 and 32.1-170 of the
Code of Virginia.
Effective Date: November 22, 2012.
Agency Contact: Joe Hilbert, Director of Governmental
and Regulatory Affairs, Department of Health, 109 Governor Street, Richmond, VA
23219, telephone (804) 864-7006, FAX (804) 864-7022, or email joe.hilbert@vdh.virginia.gov.
Background: Item 298 of Chapter 3 of the 2012 Acts of
Assembly, Special Session I, reduces the Drinking Water Regulation (50801) line
item from $9,393,590 to $8,293,590. To allow the Department of Health to
recover the diminished funds, Item 298 B of the act allows for the increase of
the Waterworks Technical Assistance Program Fee from the existing $2.05 per
connection to a maximum level of $3.00 per connection for community waterworks.
Calculations by Department of Health staff indicate a fee of $2.95 per
connection for community waterworks is necessary to recover the required funds.
Summary:
The amendments increase the maximum fee to be collected
from community waterworks to no more than $3.00 per connection for community
waterworks. The statutory maximum fee for community waterworks remains at
$160,000 per waterworks.
In addition, several technical changes are made, including
changing the date on or before which the department will send a payment
form/data verification notice to July 1.
Part I
Definitions
12VAC5-600-10. Definitions.
As used in this chapter, unless otherwise defined, words and
terms are the same as those in § 32.1-167 of the Code of Virginia or in 12VAC5-590-20
12VAC5-590-10 (Waterworks Regulations) and shall have the following
meaning, unless the context clearly indicates otherwise:
"Board" means the State Board of Health.
"Commissioner" means the State Health Commissioner
who is the executive officer of the State Board of Health.
"Community waterworks" means a waterworks which
that serves at least 15 service connections used by year-round residents
or regularly serves at least 25 year-round residents.
"Customer account" means (i) a metered or unmetered
potable water service connection to the customer which is billed in any way by
the waterworks owner; or (ii) where any community waterworks sends no billing,
the customer accounts shall be defined as equal to the population served
divided by four.
"Department" means the Virginia Department of
Health.
"Due" means received or postmarked by the stated
date.
"Fiscal year" means the year from July 1 to June
30.
"Nontransient noncommunity (NTNC) waterworks" means
a waterworks that is not a community waterworks and that regularly serves at
least 25 of the same persons over six months out of the year.
"Owner" or "water purveyor" means
an individual, group of individuals, partnership, firm, association,
institution, corporation, governmental entity or the federal government, which
supplies or proposes to supply water to any person within this Commonwealth
from or by means of any waterworks.
"Service connection" means the point of delivery of
water to a customer's building service line as follows:
1. If a meter is installed, the service connection is the
downstream side of the meter;
2. If a meter is not installed, the service connection is the
point of connection to the waterworks;
3. When the water purveyor waterworks owner is
also the building owner, the service connection is the entry point to the
building.
"Waterworks" means a system that serves piped water
for drinking or domestic use to (i) the public, (ii) at least 15 connections,
or (iii) an average of 25 individuals for at least 60 days out of the year. The
term "waterworks" shall include all structures, equipment and
appurtenances used in the storage, collection, purification, treatment and
distribution of pure water except the piping and fixtures inside the building
where such water is delivered.
Part II
General Information
12VAC5-600-20. Purpose of the regulation.
The regulation establishes a waterworks operation fee
schedule where the number of customer accounts of a community waterworks is the
basis for assessing charges to the community waterworks. The fee schedule for
nontransient noncommunity waterworks is based on the waterworks classification
being classified as a nontransient noncommunity waterworks. No waterworks
owner shall pay more than $160,000 per year per waterworks, nor is it the
intent that an owner be charged this fee on water transferred to another
waterworks.
12VAC5-600-30. Compliance with the Administrative Process Act.
The provisions of the Administrative Process Act (§ 9-6.14:1
2.2-4000 et seq. of the Code of Virginia) shall govern the promulgation
and administration of this chapter.
Part III
Waterworks Operation Fees
12VAC5-600-50. Community waterworks operation fee.
A. An annual waterworks operation fee, not to exceed
$160,000, shall be charged as of July 1 of each fiscal year to the owner of
each community waterworks in an amount as follows:
For each fiscal year: the number of customer accounts
multiplied by no more than $2.05 $3.00.
B. The fee shall be paid to the department and be due as
follows:
1. If the fee established in subsection A of this section is
$400 or less, the fee shall be due in a lump sum on August 1;
2. If the fee established in subsection A of this section is
more than $400, the fee shall be due in a lump sum or equal quarterly
installments each year as follows:
a. August 1—The lump sum or first quarterly installment.
b. November 1—The second quarterly installment.
c. February 1—The third quarterly installment.
d. May 1—The fourth quarterly installment.
C. Data verification. The number of customer accounts will be
based on the best available data for a maximum period of six months prior to
the close of business on June 30 each year as provided by the waterworks'
owner or chief administrative officer to the department. This verification
shall be provided to the department by the owner of each community waterworks
at the address specified in 12VAC5-600-100 and is due by August 1 of each year
with the appropriate payment.
12VAC5-600-60. Nontransient noncommunity (NTNC) waterworks operation
fee.
A. An annual waterworks operation fee shall be charged as of
July 1 of each fiscal year to the owner of each NTNC waterworks as follows:.
For each fiscal year:, an amount of no more than $90
per NTNC waterworks shall be assessed.
B. The fee shall be due to the department every November 1.
12VAC5-600-70. Notice.
The department will send to each waterworks owner a payment
form/data verification notice as prescribed by the department on or before June
July 1 of each year. Failure to receive this notice does not relieve the
responsibility of the waterworks owner from providing payments or
verification.
12VAC5-600-100. Payments.
Payments are to be made payable to: VDH - Waterworks
Technical Assistance Fund and sent to:
Virginia Department of Health
Division of Water Supply Engineering
1500 E. Main Street
Room 109
P.O. Box 2448
Richmond, VA 23218
Office of Drinking Water
Madison Building, 6th Floor
109 Governor Street, Room 622
Richmond, Virginia 23219
12VAC5-600-110. Late fees and administrative charges.
In addition to the powers in 12VAC5-600-40, operation fees
not received or postmarked by the due date shall be subject to interest,
administrative charges, and late penalty fees in accordance with § 2.1-732
§ 2.2-4805 of the Code of Virginia.
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 (12VAC5-600)
Bill/Invoice for Payment of the Waterworks Operation Fee
(if more than $400), (rev. 1998).
Bill/Invoice for Payment of the Waterworks Operation Fee
(if $400 or less), (rev. 1998).
Waterworks
Operation Fee - Invoice/Data Verification Notice - less than $400 (rev. 7/12).
Waterworks
Operation Fee - Invoice/Data Verification Notice - more than $400 (rev. 7/12).
VA.R. Doc. No. R13-3258; Filed September 20, 2012, 9:20 a.m.
Final Regulation
REGISTRAR'S NOTICE:
The State Board of Health is claiming an exclusion from the Administrative
Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia,
which excludes regulations that are necessary to conform to changes in Virginia
statutory law where no agency discretion is involved. The State Board of Health
will receive, consider, and respond to petitions by any interested person at
any time with respect to reconsideration or revision.
Title of Regulation: 12VAC5-610. Sewage Handling and
Disposal Regulations (amending 12VAC5-610-320, 12VAC5-610-330).
Statutory Authority: §§ 32.1-12 and 32.1-164 of the
Code of Virginia.
Effective Date: November 22, 2012.
Agency Contact: Allen Knapp, Director, Division of
Onsite Sewage, Department of Health, 109 Governor Street, Richmond, VA 23219,
telephone (804) 864-7458, FAX (804) 864-7475, or email
allen.knapp@vdh.virginia.gov.
Summary:
The amendments conform to recent changes in statutory law
enacted by Chapter 184 of the 2012 Acts of Assembly. The amendments exempt
onsite sewage system installations that are pursuant to designs certified by licensed
private sector professional engineers and onsite soil evaluators from the
department's inspection and coverage requirements and set out inspection and
reporting requirements for such systems.
12VAC5-610-320. Inspection and correction.
No part of any installation shall be covered with earth or
used until inspected, corrections made if necessary, and approved, by the
district or local health department or unless expressly authorized by the
district or local health department. Any part of an installation which has been
covered prior to approval shall be uncovered upon the direction of the district
or local health department. This section shall not apply to any sewage
disposal system installation that is pursuant to a design certified by a
licensed professional engineer or onsite soil evaluator.
Exception. This section is inapplicable to a Type III septage
disposal facility.
12VAC5-610-330. Statements Inspections of private
evaluations and designs and reports required upon completion of
construction.
A. Statement from a licensed professional engineer on a
project where the submission of formal plans and specifications are required.
Upon completion of the construction or modifications of such a
sewage disposal system, the owner permitted pursuant to a design
certified by a licensed professional engineer or onsite soil evaluator, the
certifying licensed professional engineer or onsite soil evaluator shall inspect
the sewage disposal system installation in a timely manner and submit to
the district or local health department a statement signed by a licensed
professional engineer signed inspection report stating that the construction
work installation was completed substantially in accordance with the
approved plans and specifications evaluation and design revised
only in accordance with the provisions of 12VAC5-610-310. This statement
inspection report shall be based upon inspections of the sewage disposal
system during and after construction or modifications that are adequate to
assure the accuracy of the statement report. The department
may, but is not required to, inspect the installation of such sewage disposal
system. In the event that the certifying licensed professional engineer or
onsite soil evaluator does not inspect the installation in a timely manner or
declines to certify that the installation was completed substantially in
accordance with the approved evaluation and design, the owner may petition the
district or local health department to inspect the installation and render a
final case decision approving or disapproving the installation. The district or
local health department shall not be required to convene an informal
fact-finding proceeding in accordance with § 2.2-4019
of the Code of Virginia or 12VAC5-610-200 prior to rendering such decision.
B. Statement from the sewage disposal system contractor. Upon
completion of the construction or modification of a sewage disposal system, the
owner shall submit to the district or local health department a statement
signed by the contractor that the construction work was completed in accordance
with the construction permit, and when appropriate the plans and specifications
approved for the project and substantially in accordance with Part V
(12VAC5-610-660 et seq.) of this chapter.
VA.R. Doc. No. R13-3356; Filed October 1, 2012, 2:37 p.m.
BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL
SERVICES
Final Regulation
Title of Regulation: 12VAC35-115. Rules and
Regulations to Assure the Rights of Individuals Receiving Services from Providers
Licensed, Funded, or Operated by the Department of Mental Health, Mental
Retardation and Substance Abuse Services (amending 12VAC35-115-10, 12VAC35-115-30,
12VAC35-115-50, 12VAC35-115-80).
Statutory Authority: §§ 37.2-203 and 37.2-400 of
the Code of Virginia.
Effective Date: November 21, 2012.
Agency Contact: Margaret Walsh, Director, Office of
Human Rights, Department of Behavioral Health and Developmental Services,
Jefferson Building, 1220 Bank Street, 13th Floor, Richmond, VA 23219, telephone
(804) 786-2008, FAX (804) 371-2308, or email margaret.walsh@dbhds.virginia.gov.
Summary:
The amendments are made pursuant to Chapters 111, 517, and
813 of the 2009 Acts of the Assembly and (i) change the name of the agency from
the Department of Mental Health, Mental Retardation and Substance Abuse
Services to the Department of Behavioral Health and Developmental Services and
(ii) clarify that each person admitted to a hospital, training center, or other
facility, or program operated, funded, or licensed by the department, is
afforded the opportunity to have an individual of his choice notified of his
general condition, location, and transfer to another facility.
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 115
RULES AND REGULATIONS TO ASSURE THE RIGHTS OF INDIVIDUALS RECEIVING
SERVICES FROM PROVIDERS LICENSED, FUNDED, OR OPERATED BY THE DEPARTMENT OF MENTAL
HEALTH, MENTAL RETARDATION BEHAVIORAL HEALTH AND SUBSTANCE ABUSE
DEVELOPMENTAL SERVICES
Part I
General Provisions
12VAC35-115-10. Authority and applicability.
A. The Code of Virginia authorizes these regulations to
further define and protect the rights of individuals receiving services from
providers of mental health, mental retardation, or substance abuse services in
Virginia. The regulations require providers of services to take specific
actions to protect the rights of each individual. The regulations establish
remedies when rights are violated or in dispute, and provide a structure for
support of these rights.
B. Providers subject to these regulations include:
1. Facilities operated by the department under Chapters 3 (§
37.2-300 et seq.) and 7 (§ 37.2-700 et seq.) of Title 37.2 of the Code of
Virginia;
2. Sexually violent predator programs established under § 37.2-909
of the Code of Virginia;
3. Community services boards that provide services under
Chapter 5 (§ 37.2-500 et seq.) of Title 37.2 of the Code of Virginia;
4. Behavioral health authorities that provide services under
Chapter 6 (§ 37.2-600 et seq.) of Title 37.2 of the Code of Virginia;
5. Public or private providers that operate programs or
facilities licensed by the department under Article 2 (§ 37.2-403 et seq.)
of Chapter 4 of Title 37.2 of the Code of Virginia except those operated by the
Department of Corrections; and
6. Any other providers receiving funding from the department.
Providers of services under Part C of the Individuals with Disabilities
Education Act (IDEA), 20 USC §§ 1431-1444, that are subject to these
regulations solely by receipt of Part C funds from or through the department
shall comply with all applicable IDEA regulations found in 34 CFR Part 303 in
lieu of these regulations.
C. Unless another law takes precedence, these regulations
apply to all individuals who are receiving services from a public or private
provider of services operated, licensed or funded by the Department of Mental
Health, Mental Retardation Behavioral Health and Substance Abuse
Developmental Services, except those operated by the Department of
Corrections.
D. These regulations apply to individuals under forensic
status and individuals committed to the custody of the department as sexually
violent predators, except to the extent that the commissioner may determine
these regulations are not applicable to them. The exemption must be in writing
and based solely on the need to protect individuals receiving services,
employees, or the general public. The commissioner shall give the State Human
Rights Committee (SHRC) chairperson prior notice of all exemptions and provide
the written exemption to the SHRC for its information. These exemptions shall
be time limited and services shall not be compromised.
12VAC35-115-30. Definitions.
The following words and terms when used in this chapter shall
have the following meanings, unless the context clearly indicates otherwise:
"Abuse" means any act or failure to act by an
employee or other person responsible for the care of an individual in a
facility or program operated, licensed, or funded by the department, excluding
those operated by the Department of Corrections, that was performed or was failed
to be performed knowingly, recklessly, or intentionally, and that caused or
might have caused physical or psychological harm, injury, or death to a person
receiving care or treatment for mental illness, mental retardation, or
substance abuse. Examples of abuse include acts such as:
1. Rape, sexual assault, or other criminal sexual behavior;
2. Assault or battery;
3. Use of language that demeans, threatens, intimidates or
humiliates the person;
4. Misuse or misappropriation of the person's assets, goods or
property;
5. Use of excessive force when placing a person in physical or
mechanical restraint;
6. Use of physical or mechanical restraints on a person that
is not in compliance with federal and state laws, regulations, and policies,
professionally accepted standards of practice, or the person's individualized
services plan; and
7. Use of more restrictive or intensive services or denial of
services to punish the person or that is not consistent with his individualized
services plan. See § 37.2-100 of the Code of Virginia.
"Advance directive" means a document voluntarily
executed in accordance with § 54.1-2983 of the Code of Virginia or the laws of
another state where executed (§ 54.1-2993 of the Code of Virginia). This
may include a wellness recovery action plan (WRAP) or similar document as long
as it is executed in accordance with § 54.1-2983 of the Code of Virginia or the
laws of another state. A WRAP or similar document may identify the health care
agent who is authorized to act as the individual's substitute decision maker.
"Authorization" means a document signed by the
individual receiving services or that individual's authorized representative
that authorizes the provider to disclose identifying information about the
individual. An authorization must be voluntary. To be voluntary, the
authorization must be given by the individual receiving services or his
authorized representative freely and without undue inducement, any element of
force, fraud, deceit, or duress, or any form of constraint or coercion.
"Authorized representative" means a person
permitted by law or these regulations to authorize the disclosure of
information or to consent to treatment and services or participation in human
research. The decision-making authority of an authorized representative
recognized or designated under these regulations is limited to decisions
pertaining to the designating provider. Legal guardians, attorneys-in-fact, or
health care agents appointed pursuant to § 54.1-2983 of the Code of Virginia
may have decision-making authority beyond such provider.
"Behavior intervention" means those principles and
methods employed by a provider to help an individual to achieve a positive
outcome and to address challenging behavior in a constructive and safe manner.
Behavior management principles and methods must be employed in accordance with
the individualized services plan and written policies and procedures governing
service expectations, treatment goals, safety, and security.
"Behavioral treatment plan, functional plan, or
behavioral support plan" means any set of documented procedures that are
an integral part of the individualized services plan and are developed on the
basis of a systematic data collection, such as a functional assessment, for the
purpose of assisting an individual to achieve the following:
1. Improved behavioral functioning and effectiveness;
2. Alleviation of symptoms of psychopathology; or
3. Reduction of challenging behaviors.
"Board" means the State Mental Health, Mental
Retardation Board of Behavioral Health and Substance Abuse Developmental
Services Board.
"Caregiver" means an employee or contractor who
provides care and support services; medical services; or other treatment, rehabilitation,
or habilitation services.
"Commissioner" means the Commissioner of the
Department of Mental Health, Mental Retardation Behavioral Health
and Substance Abuse Developmental Services.
"Community services board" or "CSB" means
the public body established pursuant to § 37.2-501 of the Code of Virginia
that provides mental health, mental retardation, and substance abuse services
to individuals within each city and county that established it. For the purpose
of these regulations, community services board also includes a behavioral
health authority established pursuant to § 37.2-602 of the Code of Virginia.
"Complaint" means an allegation of a violation of
these regulations or a provider's policies and procedures related to these
regulations.
"Consent" means the voluntary agreement of an
individual or that individual's authorized representative to specific services.
Consent must be given freely and without undue inducement,
any element of force, fraud, deceit, or duress, or any form of constraint or coercion.
Consent may be expressed through any means appropriate for the individual,
including verbally, through physical gestures or behaviors, in Braille or
American Sign Language, in writing, or through other methods.
"Department" means the Department of Mental
Health, Mental Retardation Behavioral Health and Substance Abuse
Developmental Services.
"Director" means the chief executive officer of any
provider delivering services. In organizations that also include services not
covered by these regulations, the director is the chief executive officer of
the services or services licensed, funded, or operated by the department.
"Discharge plan" means the written plan that
establishes the criteria for an individual's discharge from a service and
identifies and coordinates delivery of any services needed after discharge.
"Disclosure" means the release by a provider of
information identifying an individual.
"Emergency" means a situation that requires a
person to take immediate action to avoid harm, injury, or death to an
individual or to others.
"Exploitation" means the misuse or misappropriation
of the individual's assets, goods, or property. Exploitation is a type of
abuse. (See § 37.2-100 of the Code of Virginia.) Exploitation also includes the
use of a position of authority to extract personal gain from an individual.
Exploitation includes violations of 12VAC35-115-120 (Work) and 12VAC35-115-130
(Research). Exploitation does not include the billing of an individual's third
party payer for services. Exploitation also does not include instances of use
or appropriation of an individual's assets, goods or property when permission
is given by the individual or his authorized representative:
1. With full knowledge of the consequences;
2. With no inducements; and
3. Without force, misrepresentation, fraud, deceit, duress of
any form, constraint, or coercion.
"Governing body of the provider" means the person
or group of persons with final authority to establish policy. For the purpose
of these regulations, the governing body of a CSB means the public body
established according to Chapter 5 (§ 37.2-500 et seq.) or Chapter 6 (§
37.2-600 et seq.) of Title 37.2 of the Code of Virginia, and shall include
administrative policy community services boards, operating community services
boards, local government departments with policy-advisory boards, and the board
of a behavioral health authority.
"Habilitation" means the provision of
individualized services conforming to current acceptable professional practice
that enhance the strengths of, teach functional skills to, or reduce or
eliminate challenging behaviors of an individual. These services occur in an
environment that suits the individual's needs, responds to his preferences, and
promotes social interaction and adaptive behaviors.
"Health care operations" means any activities of
the provider to the extent that the activities are related to its provision of
health care services. Examples include:
1. Conducting quality assessment and improvement activities,
case management and care coordination, contacting of health care providers and
patients with information about treatment alternatives, and related functions
that do not include treatment;
2. Reviewing the competence or qualifications of health care
professionals, evaluating practitioner and provider performance, and training,
licensing or credentialing activities;
3. Conducting or arranging for medical review, legal services,
and auditing functions, including fraud and abuse detection and compliance
programs; and
4. Other activities contained within the definition of health
care operations in the Standards for Privacy of Individually Identifiable
Health Information, 45 CFR 164.501.
"Health plan" means an individual or group plan
that provides or pays the cost of medical care, including any entity that meets
the definition of "health plan" in the Standards for Privacy of
Individually Identifiable Health Information, 45 CFR 160.103.
"Historical research" means the review of
information that identifies individuals receiving services for the purpose of
evaluating or otherwise collecting data of general historical significance. See
12VAC35-115-80 B (Confidentiality).
"Human research" means any systematic
investigation, including research development, testing, and evaluation,
utilizing human subjects, that is designed to develop or contribute to
generalized knowledge. Human research shall not include research exempt from
federal research regulations pursuant to 45 CFR 46.101(b).
"Human rights advocate" means a person employed by
the commissioner upon recommendation of the State Human Rights Director to help
individuals receiving services exercise their rights under this chapter. See
12VAC35-115-250 C.
"Individual" means a person who is receiving
services. This term includes the terms "consumer,"
"patient," "resident," "recipient," and
"client."
"Individualized services plan" or "ISP"
means a comprehensive and regularly updated written plan that describes the
individual's needs, the measurable goals and objectives to address those needs,
and strategies to reach the individual's goals. An ISP is person-centered,
empowers the individual, and is designed to meet the needs and preferences of
the individual. The ISP is developed through a partnership between the
individual and the provider and includes an individual's treatment plan,
habilitation plan, person-centered plan, or plan of care.
"Informed consent" means the voluntary written
agreement of an individual, or that individual's authorized representative to
surgery, electroconvulsive treatment, use of psychotropic medications, or any
other treatment or service that poses a risk of harm greater than that
ordinarily encountered in daily life or for participation in human research. To
be voluntary, informed consent must be given freely and without undue
inducement, any element of force, fraud, deceit, or duress, or any form of
constraint or coercion.
"Inspector general" means a person appointed by the
Governor to provide oversight by inspecting, monitoring, and reviewing the
quality of services that providers deliver.
"Investigating authority" means any person or
entity that is approved by the provider to conduct investigations of abuse and
neglect.
"Licensed professional" means a physician, licensed
clinical psychologist, licensed professional counselor, licensed clinical
social worker, licensed or certified substance abuse treatment practitioner, or
certified psychiatric nurse specialist.
"Local Human Rights Committee" or "LHRC"
means a group of at least five people appointed by the State Human Rights
Committee. See 12VAC35-115-250 D for membership and duties.
"Neglect" means failure by a person, program, or
facility operated, licensed, or funded by the department, excluding those
operated by the Department of Corrections, responsible for providing services
to do so, including nourishment, treatment, care, goods, or services necessary
to the health, safety, or welfare of a person receiving care or treatment for
mental illness, mental retardation, or substance abuse. See § 37.2-100 of
the Code of Virginia.
"Next friend" means a person designated in
accordance with 12VAC35-115-146 B to serve as the authorized representative of
an individual who has been determined to lack capacity to consent or authorize
the disclosure of identifying information, when required under these
regulations.
"Peer-on-peer aggression" means a physical act,
verbal threat or demeaning expression by an individual against or to another
individual that causes physical or emotional harm to that individual. Examples
include hitting, kicking, scratching, and other threatening behavior. Such
instances may constitute potential neglect.
"Person centered" means focusing on the needs and
preferences of the individual, empowering and supporting the individual in
defining the direction for his life, and promoting self-determination,
community involvement, and recovery.
"Program rules" means the operational rules and
expectations that providers establish to promote the general safety and
well-being of all individuals in the program and to set standards for how
individuals will interact with one another in the program. Program rules
include any expectation that produces a consequence for the individual within
the program. Program rules may be included in a handbook or policies and shall
be available to the individual.
"Protection and advocacy agency" means the state
agency designated under the federal Protection and Advocacy for Individuals
with Mental Illness (PAIMI) Act and the Developmental Disabilities (DD) Act.
The protection and advocacy agency is the Virginia Office for Protection and
Advocacy.
"Provider" means any person, entity, or
organization offering services that is licensed, funded, or operated by the
department.
"Psychotherapy notes" means comments recorded in
any medium by a health care provider who is a mental health professional
documenting and analyzing an individual or a group, joint, or family counseling
session that are separated from the rest of the individual's health record.
Psychotherapy notes shall not include annotations relating to medication and
prescription monitoring, counseling session start and stop times, treatment
modalities and frequencies, clinical test results, or any summary of any
symptoms, diagnosis, prognosis, functional status, treatment plan, or the individual's
progress to date.
"Research review committee" or "institutional
review board" means a committee of professionals that provides complete
and adequate review of research activities. The committee shall be sufficiently
qualified through maturity, experience, and diversity of its members, including
consideration of race, gender, and cultural background, to promote respect for
its advice and counsel in safeguarding the rights and welfare of participants
in human research. (See § 37.2-402 of the Code of Virginia and 12VAC35-180.)
"Restraint" means the use of a mechanical device,
medication, physical intervention, or hands-on hold to prevent an individual
from moving his body to engage in a behavior that places him or others at
imminent risk. There are three kinds of restraints:
1. Mechanical restraint means the use of a mechanical device
that cannot be removed by the individual to restrict the freedom of movement or
functioning of a limb or a portion of an individual's body when that behavior
places him or others at imminent risk.
2. Pharmacological restraint means the use of a medication
that is administered involuntarily for the emergency control of an individual's
behavior when that individual's behavior places him or others at imminent risk
and the administered medication is not a standard treatment for the
individual's medical or psychiatric condition.
3. Physical restraint, also referred to as manual hold, means
the use of a physical intervention or hands-on hold to prevent an individual
from moving his body when that individual's behavior places him or others at
imminent risk.
"Restraints for behavioral purposes" means using a
physical hold, medication, or a mechanical device to control behavior or
involuntarily restrict the freedom of movement of an individual in an instance
when all of the following conditions are met: (i) there is an emergency, (ii)
nonphysical interventions are not viable, and (iii) safety issues require an
immediate response.
"Restraints for medical purposes" means using a physical
hold, medication, or mechanical device to limit the mobility of an individual
for medical, diagnostic, or surgical purposes, such as routine dental care or
radiological procedures and related postprocedure care processes, when use of
the restraint is not the accepted clinical practice for treating the
individual's condition.
"Restraints for protective purposes" means using a
mechanical device to compensate for a physical or cognitive deficit when the
individual does not have the option to remove the device. The device may limit
an individual's movement, for example, bed rails or a gerichair, and prevent
possible harm to the individual or it may create a passive barrier, such as a
helmet to protect the individual.
"Restriction" means anything that limits or
prevents an individual from freely exercising his rights and privileges.
"Seclusion" means the involuntary placement of an
individual alone in an area secured by a door that is locked or held shut by a
staff person, by physically blocking the door, or by any other physical or
verbal means, so that the individual cannot leave it.
"Serious injury" means any injury resulting in
bodily hurt, damage, harm, or loss that requires medical attention by a
licensed physician.
"Services" means care, treatment, training,
habilitation, interventions, or other supports, including medical care,
delivered by a provider licensed, operated or funded by the department.
"Services record" means all written and electronic
information that a provider keeps about an individual who receives services.
"State Human Rights Committee" or "SHRC"
means a committee of nine members appointed by the board that is accountable
for the duties prescribed in 12VAC35-115-250 E. See 12VAC35-115-250 E for
membership and duties.
"State Human Rights Director" means the person
employed by and reporting to the commissioner who is responsible for carrying
out the functions prescribed in 12VAC35-115-250 F.
"Time out" means the involuntary removal of an
individual by a staff person from a source of reinforcement to a different,
open location for a specified period of time or until the problem behavior has
subsided to discontinue or reduce the frequency of problematic behavior.
"Treatment" means the individually planned, sound,
and therapeutic interventions that are intended to improve or maintain
functioning of an individual receiving services delivered by providers
licensed, funded, or operated by the department In order to be considered sound
and therapeutic, the treatment must conform to current acceptable professional
practice.
Part III
Explanation of Individual Rights and Provider Duties
12VAC35-115-50. Dignity.
A. Each individual has a right to exercise his legal, civil,
and human rights, including constitutional rights, statutory rights, and the
rights contained in these regulations, except as specifically limited herein.
Each individual has a right to have services that he receives respond to his
needs and preferences and be person-centered. Each individual also has the
right to be protected, respected, and supported in exercising these rights.
Providers shall not partially or totally take away or limit these rights solely
because an individual has a mental illness, mental retardation, or substance
use disorder and is receiving services for these conditions or has any physical
or sensory condition that may pose a barrier to communication or mobility.
B. In receiving all services, each individual has the right
to:
1. Use his preferred or legal name. The use of an individual's
preferred name may be limited when a licensed professional makes the
determination that the use of the name will result in demonstrable harm or have
significant negative impact on the program itself or the individual's
treatment, progress, and recovery. The director or his designee shall discuss
the issue with the individual and inform the human rights advocate of the
reasons for any restriction prior to implementation and the reasons for the
restriction shall be documented in the individual's services record. The need
for the restriction shall be reviewed by the team every month and documented in
the services record.
2. Be protected from harm including abuse, neglect, and
exploitation.
3. Have help in learning about, applying for, and fully using
any public service or benefit to which he may be entitled. These services and
benefits include educational or vocational services, housing assistance,
services or benefits under Titles II, XVI, XVIII, and XIX of the Social
Security Act, United States Veterans Benefits, and services from legal and
advocacy agencies.
4. Have opportunities to communicate in private with lawyers,
judges, legislators, clergy, licensed health care practitioners, authorized
representatives, advocates, the inspector general, and employees of the
protection and advocacy agency.
5. Be provided with general information about program
services, policies, and rules in writing and in the manner, format and language
easily understood by the individual.
6. Be afforded the opportunity to have an individual of his
choice notified of his general condition, location, and transfer to another
facility.
C. In services provided in residential and inpatient
settings, each individual has the right to:
1. Have sufficient and suitable clothing for his exclusive
use.
2. Receive nutritionally adequate, varied, and appetizing
meals that are prepared and served under sanitary conditions, are served at
appropriate times and temperatures, and are consistent with any individualized
diet program.
3. Live in a humane, safe, sanitary environment that gives
each individual, at a minimum:
a. Reasonable privacy and private storage space;
b. An adequate number of private, operating toilets, sinks,
showers, and tubs that are designed to accommodate individuals' physical needs;
c. Direct outside air provided by a window that opens or by an
air conditioner;
d. Windows or skylights in all major areas used by
individuals;
e. Clean air, free of bad odors; and
f. Room temperatures that are comfortable year round and
compatible with health requirements.
4. Practice a religion and participate in religious services
subject to their availability, provided that such services are not dangerous to
the individual or others and do not infringe on the freedom of others.
a. Religious services or practices that present a danger of
bodily injury to any individual or interfere with another individual's
religious beliefs or practices may be limited. The director or his designee
shall discuss the issue with the individual and inform the human rights
advocate of the reasons for any restriction prior to implementation. The
reasons for the restriction shall be documented in the individual's services
record.
b. Participation in religious services or practices may be
reasonably limited by the provider in accordance with other general rules
limiting privileges or times or places of activities.
5. Have paper, pencil and stamps provided free of charge for
at least one letter every day upon request. However, if an individual has funds
to buy paper, pencils, and stamps to send a letter every day, the provider does
not have to pay for them.
6. Communicate privately with any person by mail and have help
in writing or reading mail as needed.
a. An individual's access to mail may be limited only if the
provider has reasonable cause to believe that the mail contains illegal
material or anything dangerous. If so, the director or his designee may open
the mail, but not read it, in the presence of the individual.
b. An individual's ability to communicate by mail may be
limited if, in the judgment of a licensed professional, the individual's
communication with another person or persons will result in demonstrable harm
to the individual's mental health.
c. The director or his designee shall discuss the issue with
the individual and inform the human rights advocate of the reasons for any
restriction prior to implementation and the reasons for the restriction shall
be documented in the individual's services record. The need for the restriction
shall be reviewed by the team every month and documented in the services
record.
7. Communicate privately with any person by telephone and have
help in doing so. Use of the telephone may be limited to certain times and
places to make sure that other individuals have equal access to the telephone
and that they can eat, sleep, or participate in an activity without being
disturbed.
a. An individual's access to the telephone may be limited only
if, in the judgment of a licensed professional, communication with another
person or persons will result in demonstrable harm to the individual or
significantly affect his treatment.
b. The director or his designee shall discuss the issue with
the individual and inform the human rights advocate of the reasons for any
restriction prior to implementation and the reasons for the restriction shall
be documented in the individual's services record. The need for the restriction
shall be reviewed by the team every month and documented in the individual's
services record.
c. Residential substance abuse services providers that are not
inpatient hospital settings or crisis stabilization programs may develop
policies and procedures that limit the use of the telephone during the initial
phase of treatment when sound therapeutic practice requires restriction,
subject to the following conditions:
(1) Prior to implementation and when it proposes any changes
or revisions, the provider shall submit policies and procedures, program
handbooks, or program rules to the LHRC and the human rights advocate for
review and approval.
(2) When an individual applies for admission, the provider
shall notify him of these restrictions.
8. Have or refuse visitors.
a. An individual's access to visitors may be limited or
supervised only when, in the judgment of a licensed professional, the visits
result in demonstrable harm to the individual or significantly affect the
individual's treatment or when the visitors are suspected of bringing
contraband or threatening harm to the individual in any other way.
b. The director or his designee shall discuss the issue with
the individual and inform the human rights advocate of the reasons for any
restriction prior to implementation and the restriction shall be documented in
the individual's services record. The need for the restriction shall be
reviewed by the team every month and documented in the individual's services
record.
c. Residential substance abuse service providers that are not
inpatient hospital settings or crisis stabilization programs may develop
policies and procedures that limit visitors during the initial phase of
treatment when sound therapeutic practice requires the restriction, subject to
the following conditions:
(1) Prior to implementation and when proposing any changes or
revisions, the provider shall submit policies and procedures, program
handbooks, or program rules to the LHRC and the human rights advocate for
review and approval.
(2) The provider shall notify individuals who apply for
admission of these restrictions.
9. Nothing in these provisions shall prohibit a provider from
stopping, reporting, or intervening to prevent any criminal act.
D. The provider's duties.
1. Providers shall recognize, respect, support, and protect
the dignity rights of each individual at all times. In the case of a minor,
providers shall take into consideration the expressed preferences of the minor
and the parent or guardian.
2. Providers shall develop, carry out, and regularly monitor
policies and procedures that assure the protection of each individual's rights.
3. Providers shall assure the following relative to abuse, neglect,
and exploitation:
a. Policies and procedures governing harm, abuse, neglect, and
exploitation of individuals receiving their services shall require that, as a
condition of employment or volunteering, any employee, volunteer, consultant,
or student who knows of or has reason to believe that an individual may have
been abused, neglected, or exploited at any location covered by these
regulations, shall immediately report this information directly to the
director.
b. The director shall immediately take necessary steps to
protect the individual until an investigation is complete. This may include the
following actions:
(1) Direct the employee or employees involved to have no
further contact with the individual. In the case of incidents of peer-on-peer
aggression, protect the individuals from the aggressor in accordance with sound
therapeutic practice and these regulations.
(2) Temporarily reassign or transfer the employee or employees
involved to a position that has no direct contact with individuals receiving
services.
(3) Temporarily suspend the involved employee or employees
pending completion of an investigation.
c. The director shall immediately notify the human rights
advocate and the individual's authorized representative. In no case shall
notification be later than 24 hours after the receipt of the initial allegation
of abuse, neglect, or exploitation.
d. In no case shall the director punish or retaliate against
an employee, volunteer, consultant, or student for reporting an allegation of
abuse, neglect, or exploitation to an outside entity.
e. The director shall initiate an impartial investigation
within 24 hours of receiving a report of potential abuse or neglect. The
investigation shall be conducted by a person trained to do investigations and
who is not involved in the issues under investigation.
(1) The investigator shall make a final report to the director
or the investigating authority and to the human rights advocate within 10
working days of appointment. Exceptions to this timeframe may be requested and
approved by the department if submitted prior to the close of the sixth day.
(2) The director or investigating authority shall, based on
the investigator's report and any other available information, decide whether
the abuse, neglect or exploitation occurred. Unless otherwise provided by law,
the standard for deciding whether abuse, neglect, or exploitation has occurred
is preponderance of the evidence.
(3) If abuse, neglect or exploitation occurred, the director
shall take any action required to protect the individual and other individuals.
All actions must be documented and reported as required by 12VAC35-115-230.
(4) In all cases, the director shall provide his written
decision, including actions taken as a result of the investigation, within seven
working days following the completion of the investigation to the individual or
the individual's authorized representative, the human rights advocate, the
investigating authority, and the involved employee or employees. The decision
shall be in writing and in the manner, format, and language that is most easily
understood by the individual.
(5) If the individual affected by the alleged abuse, neglect,
or exploitation or his authorized representative is not satisfied with the
director's actions, he or his authorized representative, or anyone acting on
his behalf, may file a petition for an LHRC hearing under 12VAC35-115-180.
f. The director shall cooperate with any external
investigation, including those conducted by the inspector general, the protection
and advocacy agency, or other regulatory or enforcement agencies.
g. If at any time the director has reason to suspect that an
individual may have been abused or neglected, the director shall immediately
report this information to the appropriate local Department of Social Services
(see §§ 63.2-1509 and 63.2-1606 of the Code of Virginia) and cooperate
fully with any investigation that results.
h. If at any time the director has reason to suspect that the
abusive, neglectful or exploitive act is a crime, the director or his designee
shall immediately contact the appropriate law-enforcement authorities and
cooperate fully with any investigation that results.
4. Providers shall [ notify a person the
individual chooses afford the individual the opportunity to have an
individual of his choice notified ] of his general condition,
location, and transfer to another facility.
12VAC35-115-80. Confidentiality.
A. Each individual is entitled to have all identifying
information that a provider maintains or knows about him remain confidential.
Each individual has a right to give his authorization before the provider
shares identifying information about him or his care unless another state law
or regulation, or these regulations specifically require or permit the provider
to disclose certain specific information.
B. The provider's duties.
1. Providers shall maintain the confidentiality of any
information that identifies an individual. If an individual's services record
pertains in whole or in part to referral, diagnosis or treatment of substance
use disorders, providers shall disclose information only according to
applicable federal regulations (see 42 CFR Part 2, Confidentiality of Alcohol
and Drug Abuse Patient Records).
2. Providers shall obtain and document in the individual's
services record the individual's authorization or that of the authorized
representative prior to disclosing any identifying information about him. The
authorization must contain the following elements:
a. The name of the organization and the name or other specific
identification of the person or persons or class of persons to whom disclosure
is made;
b. A description of the nature of the information to be
disclosed, the purpose of the disclosure, and an indication whether the
authorization extends to the information placed in the individual's record
after the authorization was given but before it expires;
c. An indication of the effective date of the authorization
and the date the authorization will expire, or the event or condition upon
which it will expire; and
d. The signature of the individual and the date. If the
authorization is signed by an authorized representative, a description of the
authorized representative's authority to act.
3. Providers shall tell each individual and his authorized
representative about the individual's confidentiality rights. This shall
include how information can be disclosed and how others might get information
about the individual without his authorization. If a disclosure is not required
by law, the provider shall give strong consideration to any objections from the
individual or his authorized representative in making the decision to disclose
information.
4. Providers shall prevent unauthorized disclosures of
information from services records and shall maintain and disclose information
in a secure manner.
5. In the case of a minor, the authorization of the custodial
parent or other person authorized to consent to the minor's treatment under § 54.1-2969
is required, except as provided below:
a. Section 54.1-2969 E of the Code of Virginia permits a minor
to authorize the disclosure of information related to medical or health
services for a sexually transmitted or contagious disease, family planning or
pregnancy, and outpatient care, treatment or rehabilitation for substance use
disorders, mental illness, or emotional disturbance.
b. The concurrent authorization of the minor and custodial
parent is required to disclose inpatient substance abuse records.
c. The minor and the custodial parent shall authorize the disclosure
of identifying information related to the minor's inpatient psychiatric
hospitalization when the minor is 14 years of age or older and has consented to
the admission.
6. When providers disclose identifying information, they shall
attach a statement that informs the person receiving the information that it
must not be disclosed to anyone else unless the individual authorizes the
disclosure or unless state law or regulation allows or requires further
disclosure without authorization.
7. Providers may encourage individuals to name family members,
friends, and others who may be told of their presence in the program and
general condition or well-being. [ Providers shall notify a
person of the individual's choice of the individual's general condition, location,
and transfer to another facility upon the individual's oral or written request. ]
Except for information governed by 42 CFR Part 2, providers may disclose
to a family member, other relative, a close personal friend, or any other
person identified by the individual, information that is directly relevant to
that persons involvement with the individual's care or payment for his health
care, if (i) the provider obtains the individual's agreement, (ii) the provider
provides the individual with the opportunity to object to the disclosure, and
(iii) the individual does not object or the provider reasonably infers for the
circumstances, based or the exercise of professional judgment, that the
individual does not object to the disclosure. If the opportunity to agree or
object cannot be provided because of the individual's incapacity or an
emergency circumstance, the provider may, in the exercise of professional
judgment, determine whether the disclosure is in the best interest of the
individual and, if so, disclose only the information that is directly relevant
to the person's involvement with the individual's health care.
8. Providers may disclose the following identifying
information without authorization or violation of the individual's
confidentiality, but only under the conditions specified in the following
subdivisions of this subsection. Providers should always consult 42 CFR Part 2,
Confidentiality of Alcohol and Drug Abuse Patient Records, if applicable,
because these federal regulations may prohibit some of the disclosures
addressed in this section.
a. Emergencies: Providers may disclose information in an
emergency to any person who needs that particular information for the purpose
of preventing injury to or death of an individual or other person. The provider
shall not disclose any information that is not needed for this specific
purpose.
b. Providers or health plans: Providers may permit any full-
or part-time employee, consultant, agent, or contractor of the provider to use
identifying information or disclose to another provider, a health plan, the
department, or a CSB, information required to give services to the individual
or to get payment for the services.
c. Court proceedings: If the individual or someone acting for
him introduces any aspect of his mental condition or services as an issue
before a court, administrative agency, or medical malpractice review panel, the
provider may disclose any information relevant to that issue. The provider may
also disclose any records if they are properly subpoenaed, if a court orders
them to be produced, or if involuntary admission or certification for admission
is being proposed.
d. Legal counsel: Providers may disclose information to their
own legal counsel or to anyone working on behalf of their legal counsel in
providing representation to the provider. Providers of state-operated services
may disclose information to the Office of the Attorney General or to anyone
appointed by or working on behalf of that office in providing representation to
the Commonwealth of Virginia.
e. Human rights committees: Providers may disclose to the LHRC
and the SHRC any information necessary for the conduct of their
responsibilities under these regulations.
f. Others authorized or required by the commissioner, CSB, or
private program director: Providers may disclose information to other persons
if authorized or required for the following activities:
(1) Licensing, human rights, or certification or accreditation
reviews;
(2) Hearings, reviews, appeals, or investigations under these
regulations;
(3) Evaluation of provider performance and individual outcomes
(see §§ 37.2-508 and 37.2-608 of the Code of Virginia);
(4) Statistical reporting;
(5) Preauthorization, utilization reviews, financial and
related administrative services reviews, and audits; or
(6) Similar oversight and review activities.
g. Preadmission screening, services, and discharge planning:
Providers may disclose to the department, the CSB, or to other providers
information necessary to screen individuals for admission or to prepare and
carry out a comprehensive individualized services or discharge plan (see §
37.2-505 of the Code of Virginia).
h. Protection and advocacy agency: Providers may disclose
information to the protection and advocacy agency in accordance with that
agency's legal authority under federal and state law.
i. Historical research: Providers may disclose information to
persons engaging in bona fide historical research if all of the following
conditions are met:
(1) The request for historical research shall include, at a
minimum, a summary of the scope and purpose of the research, a description of
the product to result from the research and its expected date of completion, a
rationale explaining the need to access otherwise private information, and the
specific identification of the type and location of the records sought.
(2) The commissioner, CSB executive director, or private
program director has authorized the research;
(3) The individual or individuals who are the subject of the
disclosure are deceased;
(4) There are no known living persons permitted by law to
authorize the disclosure; and
(5) The disclosure would in no way reveal the identity of any
person who is not the subject of the historical research.
j. Protection of public safety: If an individual receiving
services makes a specific threat to cause serious bodily injury or death to an
identified or readily identifiable person and the provider reasonably believes
that the individual has the intent and the ability to carry out the threat
immediately or imminently, the provider may disclose those facts necessary to
alleviate the potential threat.
k. Inspector General: Providers may disclose to the Inspector
General any individual services records and other information relevant to the
provider's delivery of services.
l. Virginia Patient Level Data System: Providers may disclose
financial and services information to Virginia Health Information as required
by law (see Chapter 7.2 (§ 32.1-276.2 et seq.) of Title 32.1 of the Code
of Virginia).
m. Psychotherapy notes: Providers shall obtain an individual's
authorization for any disclosure of psychotherapy notes, except when disclosure
is made:
(1) For the provider's own training programs in which
students, trainees, or practitioners in mental health are being taught under
supervision to practice or improve their skills in group, joint, family or
individual counseling;
(2) To defend the provider or its employees or staff against
any accusation or wrongful conduct;
(3) In discharge of the provider's duty, in accordance with § 54.1-2400.1
B of the Code of Virginia, to take precautions to protect third parties from
violent behavior or other serious harm;
(4) As required in the course of an investigation, audit, review,
or proceeding regarding a provider's conduct by a duly authorized
law-enforcement, licensure, accreditation, or professional review entity; or
(5) When otherwise required by law.
n. A law-enforcement official:
(1) Pursuant to a search warrant or grand jury subpoena;
(2) In response to their request, for the purpose of
identifying or locating a suspect, fugitive, an individual required to register
pursuant to § 9.1-901 of the Sex Offender and Crimes Against Minors Registry
Act, material witness, or missing person, provided that only the following
information is disclosed:
(a) Name and address of the individual;
(b) Date and place of birth of the individual;
(c) Social Security number of the individual;
(d) Blood type of the individual;
(e) Date and time of treatment received by the individual;
(f) Date and time of death of the individual;
(g) Description of distinguishing physical characteristics of
the individual; and
(h) Type of injury sustained by the individual.
(3) Regarding the death of an individual for the purpose of
alerting law enforcement of the death if the health care entity has a suspicion
that such death may have resulted from criminal conduct; or
(4) If the health care entity believes in good faith that the
information disclosed constitutes evidence of a crime that occurred on its
premises.
o. Other statutes or regulations: Providers may disclose
information to the extent required or permitted by any other state or law or
regulation. See also § 32.1-127.1:03 of the Code of Virginia for a list of
circumstances in which records may be disclosed without authorization.
9. Upon request, the provider shall tell the individual or his
authorized representative the sources of information contained in his services
records and provide a written listing of disclosures of information made
without authorization, except for disclosures:
a. To employees of the department, CSB, the provider, or other
providers;
b. To carry out treatment, payment, or health care operations;
c. That are incidental or unintentional disclosures that occur
as a by-product of engaging in health care communications and practices that
are already permitted or required;
d. To an individual or his authorized representative;
e. Pursuant to an authorization;
f. For national security or intelligence purposes;
g. To correctional institutions or law enforcement officials;
or
h. That were made more that six years prior to the request.
10. The provider shall include the following information in
the listing of disclosures of information provided to the individual or his
authorized representative under subdivision 9 of this subsection:
a. The name of the person or organization that received the
information and the address if known;
b. A brief description of the information disclosed; and
c. A brief statement of the purpose of the disclosure or, in
lieu of such a statement, a copy of the written request for disclosure.
11. If the provider makes multiple disclosures of information
to the same person or entity for a single purpose, the provider shall include
the following:
a. The information required in subdivision 10 of this
subsection for the first disclosure made during the requested period;
b. The frequency, periodicity, or number of disclosures made
during the period for which the individual is requesting information; and
c. The date of the last disclosure during the time period.
12. If the provider makes a disclosure to a social service or
protective services agency about an individual who the provider reasonably
believes to be a victim of abuse or neglect, the provider is not required to
inform the individual or his authorized representative of the disclosure if:
a. The provider, in the exercise of professional judgment,
believes that informing the individual would place the individual at risk of
serious harm; or
b. The provider would be informing the authorized
representative, and the provider reasonably believes that the authorized
representative is responsible for the abuse or neglect, and that informing such
person would not be in the best interests of the individual.
VA.R. Doc. No. R09-2085; Filed September 26, 2012, 9:38 a.m.
w –––––––––––––––––– w
TITLE 14. INSURANCE
STATE CORPORATION COMMISSION
Final Regulation
REGISTRAR'S NOTICE:
The State Corporation Commission is exempt from the Administrative Process Act
in accordance with § 2.2-4002 A 2 of the Code of Virginia, which exempts
courts, any agency of the Supreme Court, and any agency that by the
Constitution is expressly granted any of the powers of a court of record.
Title of Regulation: 14VAC5-300. Rules Governing
Credit for Reinsurance (amending 14VAC5-300-10, 14VAC5-300-30,
14VAC5-300-40, 14VAC5-300-60 through 14VAC5-300-160; adding 14VAC5-300-95,
14VAC5-300-170; repealing 14VAC5-300-20, 14VAC5-300-50).
Statutory Authority: §§ 12.1-13, 38.2-223, and
38.2-1316.7 of the Code of Virginia.
Effective Date: January 1, 2013.
Agency Contact: Raquel C. Pino-Moreno, Principal
Insurance Analyst, Bureau of Insurance, State Corporation Commission, P.O. Box
1157, Richmond, VA 23218, telephone (804) 371-9499, FAX (804) 371-9511, or
email raquel.pino-moreno@scc.virginia.gov.
Summary:
The amendments incorporate revisions made by the National
Association of Insurance Commissioners (NAIC) to its Credit for Reinsurance
Model Regulation. The revisions provide the State Corporation Commission with
the authority to (i) certify reinsurers or to recognize the certification
issued by another NAIC-accredited state; (ii) evaluate a reinsurer that applies
for certification and to assign a rating based on that evaluation; (iii)
require that certified reinsurers post collateral in an amount that corresponds
with its assigned rating, so that a United States ceding insurer is allowed
full credit for the reinsurance ceded; (iv) evaluate a non-United States
jurisdiction to determine if it is a "qualified jurisdiction" or choose
to defer to an NAIC list of recommended qualified jurisdictions; and (v)
require ceding insurers to take steps to manage their concentration risk and to
diversify their reinsurance program.
Additional revisions to 14VAC5-300-95 A 4 clarify
"catastrophic occurrence" and to 14VAC5-300-95 A 5 that clarify that
both parties to a reinsurance contract must agree to an amendment before an
existing reinsurance contract would fall under the new certified reinsurer
requirements. Revisions to 14VAC5-300-90 E correct a citation reference and
revisions to 14VAC5-300-150 add language regarding (i) an assuming insurer
submitting to a court of competent jurisdiction and (ii) trust agreement
requirements when the trust contains insufficient funds or is insolvent.
Additional changes to the reproposed version of the rules
are made to 14VAC5-300-70 A 3 to provide for the filing of an electronic copy
of the annual statement with the commission, and to 14VAC5-300-90 E 1 d and
14VAC5-300-95 D 3 and 4 to correct typographical errors.
AT RICHMOND, SEPTEMBER 19, 2012
COMMONWEALTH OF VIRGINIA, ex
rel.
STATE CORPORATION COMMISSION
CASE NO. INS-2012-00058
Ex Parte: In the matter of
Adopting Revisions to the Rules
Governing Credit for Reinsurance
ORDER ADOPTING RULES
By Order to Take Notice ("Order") entered April 3,
2012, all interested persons were ordered to take notice that subsequent to
June 22, 2012, the State Corporation Commission ("Commission") would
consider the entry of an order adopting amendments to rules set forth in Chapter
300 of Title 14 of the Virginia Administrative Code entitled Rules Governing
Credit for Reinsurance, 14 VAC 5-300-10 et seq. ("Rules"), which
specifically amend the Rules at 14 VAC 5-300-10, 14 VAC 5-300-30, 14 VAC
5-300-40, 14 VAC 5-300-60, 14 VAC 5-300-70, 14 VAC 5-300-80, 14 VAC 5-300-90,
14 VAC 5-300-100, 14 VAC 5-300-110, 14 VAC 5-300-120, 14 VAC 5-300-130, 14 VAC
5-300-140, 14 VAC 5-300-150, and 14 VAC 5-300-160; propose new Rules at 14 VAC
5-300-95 and 14 VAC 5-300-170; and repeal the Rules at 14 VAC 5-300-20 and 14
VAC 5-300-50, unless on or before June 22, 2012, any person objecting to the
adoption of the amendments to the Rules filed a request for a hearing with the
Clerk of the Commission ("Clerk").
The Order also required all interested persons to file with
the Clerk, on or before June 22, 2012, their comments in support of or in
opposition to the proposed amendments to the Rules.
Allstate Insurance Company and Underwriters at Lloyd's,
London timely filed comments with the Clerk to which the Commission's Bureau of
Insurance ("Bureau") provided a response in the form of a Statement
of Position filed with the Clerk on June 29, 2012. The Bureau also
received comments from the Reinsurance Association of America, which the Bureau
responded to in its Statement of Position.
As a result of these comments, the Bureau recommended that
the proposed amendments to the Rules be further revised as follows:
(1) Amend the new rule at 14 VAC 5-300-95 at subsection A 4
to clarify that the deferral for posting collateral after a catastrophic event
should be granted only in those instances where the catastrophic event is
likely to result in significant insured losses.
(2) Amend the new rule at 14 VAC 5-300-95 at subsection A 5
to provide that the Rules do not apply retroactively unless the retroactive
application is agreed to by both parties to the reinsurance contract.
(3) Amend the rule at 14 VAC 5-300-90 at subsection E to
correct a citation reference.
(4) Amend the rule at 14 VAC 5-300-150 to include (1) language
providing that an assuming insurer will submit to a court of competent
jurisdiction, and (2) requirements for trust agreements in instances when a
trust becomes insolvent.
The Bureau also recommended that the proposed amendments to
the Rules and the revisions outlined above be exposed for additional comment
until August 13, 2012.
On July 5, 2012, the Commission entered an Order to Take
Notice of Revised Proposed Rules1 in which it exposed the revised
proposed amendments to the Rules for additional comments until August 13, 2012.
No comments were filed regarding the revised proposed amendments to the Rules.
The Bureau has recommended technical amendments to the rule
at 14 VAC 5-300-70 to provide for electronic filing of the annual statement and
to the rules at 14 VAC 5-300-90 and 14 VAC 5-300-95 to correct typographical
errors.
NOW THE COMMISSION, having considered the comments, the
Bureau's response to the comments, the Bureau's recommendations, and the
proposed amendments to the Rules, is of the opinion that the revised proposed
amendments to the Rules should be adopted as amended, effective January 1,
2013.
Accordingly, IT IS ORDERED THAT:
(1) The amendments to the Rules Governing Credit For
Reinsurance, 14 VAC 5-300-10 et seq., which specifically amend the Rules at 14
VAC 5-300-10, 14 VAC 5-300-30, 14 VAC 5-300-40, 14 VAC 5-300-60, 14 VAC
5-300-70, 14 VAC 5-300-80, 14 VAC 5-300-90, 14 VAC 5-300-100, 14 VAC
5-300-110, 14 VAC 5-300-120, 14 VAC 5-300-130, 14 VAC 5-300-140, 14 VAC
5-300-150, and 14 VAC 5-300-160; propose new Rules at 14 VAC 5-300-95 and 14
VAC 5-300-170; and repeal the Rules at 14 VAC 5-300-20 and 14 VAC
5-300-50, which are attached hereto and made a part hereof, are hereby ADOPTED
effective January 1, 2013.
(2) AN ATTESTED COPY hereof, together with a copy of the
adopted amended Rules, shall be sent by the Clerk of the Commission to the
Bureau of Insurance in care of Deputy Commissioner Douglas C. Stolte, who
forthwith shall give further notice of the adoption of the amended Rules by mailing
a copy of this Order, together with the amended Rules, to all licensed
insurers, burial societies, fraternal benefit societies, health services plans,
risk retention groups, home protection companies, joint underwriting
associations, group self-insurance pools, and group self-insurance associations
licensed by the State Corporation Commission, qualified reinsurers and certain
interested parties designated by the Bureau of Insurance.
(3) The Commission's Division of Information Resources
forthwith shall cause a copy of this Order, together with the amended Rules, to
be forwarded to the Virginia Registrar of Regulations for appropriate
publication in the Virginia Register of Regulations and shall make available
this Order and the attached amended Rules on the State Corporation Commission's
website, http://www.scc.virginia.gov/case.
(4) The
Bureau of Insurance shall file with the Clerk of the State Corporation
Commission an affidavit of compliance with the notice requirements of Ordering
Paragraph (2) above.
_____________________
14VAC5-300-10. Purpose.
The purpose of this chapter (14VAC5-300-10
et seq.) is to set forth rules and procedural requirements which the Commission
commission has determined are necessary to carry out the provisions of
Article 3.1 (§ 38.2-1316.1 et seq.) of Chapter 13 of Title 38.2 of the Code of
Virginia.
14VAC5-300-20. Severability.
(Repealed.)
If any provision of this
chapter or its application to any person or circumstance, is held invalid, such
determination shall not affect other provisions or applications of this chapter
which can be given effect without the invalid provision or application, and to
that end the provisions of this chapter are severable.
14VAC5-300-30. Applicability
and scope.
This chapter (14VAC5-300-10
et seq.) shall apply to all insurers taking credit for reinsurance under
the provisions of Article 3.1 (§ 38.2-1316.1 et seq.) of Chapter 13 of Title
38.2 of the Code of Virginia.
14VAC5-300-40. Definitions.
For purposes of The
following words and terms when used in this chapter (14VAC5-300-10 et
seq.) shall have the following meanings unless the context clearly
indicates otherwise:
"The Act" means
the provisions concerning reinsurance set forth in Article 3.1 (§ 38.2-1316.1
et seq.) of Chapter 13 of Title 38.2 of the Code of Virginia.
"Accredited
reinsurer" has the meaning set forth in § 38.2-1316.1 of the Code of
Virginia.
"Accredited
state" means a state in which the supervising insurance official, state
insurance department or regulatory agency is accredited by the National
Association of Insurance Commissioners (NAIC) with respect to compliance with
the NAIC Policy Statement on Financial Regulation Standards.
"Audited financial
report" means and includes those items specified in 14VAC5-270-60 of this
title, "Rules Governing Annual Audited Financial Reports."
"Beneficiary"
means the entity for whose sole benefit the trust described in 14VAC5-300-120 of
this chapter, or the letter of credit described in 14VAC5-300-130 of this
chapter, has been established and any successor of the beneficiary by
operation of law, including, without limitation, any receiver, conservator,
rehabilitator or liquidator.
"Certified
reinsurer" has the meaning set forth in § 38.2-1316.1 of the Code of
Virginia.
"Credit" has
the meaning defined in § 38.2-1316.1 of the Code of Virginia.
"Grantor" means
the entity that has established a trust for the sole benefit of the
beneficiary. However, when such a trust is established in conjunction with a
reinsurance agreement that qualifies for credit under 14VAC5-300-120 of this
chapter, the grantor shall not be an assuming insurer for which credit can
be taken under § 38.2-1316.2 or § 38.2-1316.3 of the Code of Virginia.
"Mortgage-related
security" means an obligation that is rated AA or higher (or the
equivalent) by a securities rating agency recognized by the Securities
Valuation Office of the NAIC and that either:
1. Represents ownership of
one or more promissory notes or certificates of interest or participation in
the notes (including any rights designed to assure servicing of, or the receipt
or timeliness of receipt by the holders of the notes, certificates, or
participation of amounts payable under, the notes, certificates or
participation), that:
a. Are directly secured by
a first lien on a single parcel of real estate, including stock allocated to a
dwelling unit in a residential cooperative housing corporation, upon which is
located a dwelling or mixed residential and commercial structure, or on a residential
manufactured home as defined in 42 USCA § 5402(6), whether the manufactured
home is considered real or personal property under the laws of the state in
which it is located; and
b. Were originated by a
savings and loan association, savings bank, commercial bank, credit union,
insurance company, or similar institution that is supervised and examined by a
federal or state housing authority, or by a mortgagee approved by the Secretary
of Housing and Urban Development pursuant to 12 USCA §§ 1709 and 1715-b,
or, where the notes involve a lien on the manufactured home, by an institution
or by a financial institution approved for insurance by the Secretary of
Housing and Urban Development pursuant to 12 USCA § 1703; or
2. Is secured by one or
more promissory notes or certificates of deposit or participations in the notes
(with or without recourse to the insurer of the notes) and, by its terms,
provides for payments of principal in relation to payments, or reasonable
projections of payments, or notes meeting the requirements of items 1 a and b
of this definition.
"NAIC" means
the National Association of Insurance Commissioners.
"Obligations", as
used in 14VAC5-300-120 B 6 of this chapter 14VAC5-300-120 A 11,
means:
1. Reinsured losses and
allocated loss expense expenses paid by the ceding company, but
not recovered from the assuming insurer;
2. Reserves for reinsured
losses reported and outstanding;
3. Reserves for reinsured
losses incurred but not reported; and
4. Reserves for allocated
reinsured loss expenses and unearned premiums.
"Promissory
note" means, when used in connection with a manufactured home, a loan,
advance or credit sale as evidenced by a retail installment sales contract or
other instrument.
"Qualified United
States financial institutions" has the meanings set forth in § 38.2-1316.1
of the Code of Virginia.
"Statutory financial
statement" means financial statements filed on either a quarterly or
annual basis with the supervising insurance official, insurance department or
insurance regulatory agency of the assuming insurer's state of domicile or, in
the case of an alien assuming insurer, with the state through which it is
entered and in which it is licensed to transact insurance or reinsurance. Any
statutory financial statement required under this chapter shall be filed in
accordance with the filing dates prescribed for the financial statements filed
by licensed insurers pursuant to §§ 38.2-1300 and 38.2-1301 of the Code of
Virginia.
"Substantially
similar" standards means credit for reinsurance standards which the
Commission determines equal or exceed the standards of the Act and this chapter
(14VAC5-300-10 et seq.). An insurer licensed and domiciled, or entered through
and licensed, in an accredited state is deemed to be subject to substantially
similar standards for purposes of the Act and this chapter.
"Surplus to
policyholders" (i) when applied to a domestic or foreign assuming insurer,
has the meaning set forth in § 38.2-100 of the Code of Virginia, and (ii),
when applied to an alien assuming insurer, means "trusteed surplus"
as defined in § 38.2-1031 of the Code of Virginia. In both instances as
used in this chapter, the calculation and verification of such surplus shall be
subject to the provisions of Title 38.2 of the Code of Virginia pertaining to
admitted assets, investments, reserve requirements and other liabilities.
14VAC5-300-50. Credit for
reinsurance generally. (Repealed.)
A. Except for those
credits or reductions in liability allowed pursuant to § 38.2-1316.4 of
the Act, a ceding insurer shall not receive reserve credits for reinsurance
unless the assuming insurer meets certain financial and licensing requirements
established by §§ 38.2-1316.2 and 38.2-1316.3 of the Act. The following
subdivisions of this section and 14VAC5-300-60 through 14VAC5-300-90 of this
chapter set forth requirements for such assuming insurers.
B. The Act also contains
examination and jurisdiction submission requirements by which most assuming
insurers are required to submit to the examination authority of the Commission
and the limited jurisdiction of this Commonwealth. The assuming insurer may
also be required to appoint the Clerk of the Commission as statutory agent for
service of process in any action, suit or proceeding arising out of a
reinsurance agreement for which credit is taken under the Act, and instituted
by or on behalf of the ceding insurer. The following provisions shall apply
whenever such submissions or appointments are required by the Act or this
chapter:
1. The submissions shall
be executed and filed in duplicate on forms approved by the Commission.
2. When the assuming
insurer is an incorporated company, each appointment or submission shall be
executed by a duly authorized officer of the corporation. When the assuming
insurer is an unincorporated group of persons, such forms may be executed by a
trustee or other duly appointed and authorized representative of the group. In
no case shall the executing officer, trustee, or representative be affiliated
with or employed by a corresponding ceding insurer.
3. A submission to limited
jurisdiction and any appointment of the Clerk of the Commission as agent for
service of process shall be accompanied by a current listing of ceding insurers
for whom jurisdiction through courts in Virginia is acknowledged. The listing
shall identify all ceding insurers domiciled in Virginia with whom reinsurance
agreements are in effect. For each ceding insurer identified, the listing shall
report the complete name, address, domicile, and, for those companies
registered with the NAIC, the identifying NAIC number of the ceding insurer.
Such listing shall be updated at least annually unless more frequent filings
are requested by the Commission.
C. It is possible for a ceding
insurer to take credit for a reinsurance transaction in one of two ways even if
the assuming company cannot satisfy the threshold financial and licensing
requirements or is unwilling to make the examination and jurisdiction
submissions provided for in the Act. In such instances, the controlling statute
is § 38.2-1316.4 of the Act.
1. Under subdivision 1 of
§ 38.2-1316.4, credit may be taken if the transaction is required by law,
however, the amount of credit may be restricted as provided in 14VAC5-300-100
of this chapter.
2. Under subdivision 2 of
§ 38.2-1316.4, credit may be taken in the form of a reduction from liability
for collateralized transactions. 14VAC5-300-110 through 14VAC5-300-140 of this
chapter relate to collateralized transactions, including those secured by
letters of credit.
D. Regardless of whether
a ceding insurer seeks credit pursuant to § 38.2-1316.2, § 38.2-1316.3 or §
38.2-1316.4 of the Act, no balance sheet adjustments can be made unless the
reinsurance agreement satisfies the conditions of § 38.2-1316.5 of the Act and
14VAC5-300-150 of this chapter. Additional conditions set forth throughout this
chapter can affect transactions involving trusteed funds or groups of assuming
insurers.
E. The ceding insurer is
responsible for determining, in advance of taking any credit for reinsurance,
whether the assuming insurer is willing and able to satisfy the licensing and
financial conditions, and make the examination and jurisdictional submissions
provided for in § 38.2-1316.2 or § 38.2-1316.3 of the Act. If such
conditions are not satisfied, or such submissions are not made in a proper and
timely manner as required by this chapter, credit for reinsurance may be
disallowed in the ceding insurer even though the required materials or filings
may originate, by necessity or definition, with the assuming insurer.
For purposes of the Act,
and except as otherwise approved by the Commission, an insurer shall not be
considered "licensed" unless it is fully authorized to actively
solicit and conduct its business in the appropriate jurisdiction.
F. Except as provided
elsewhere in this chapter, all filings required by the Act or this chapter
shall be filed (i) prior to the date of the statutory financial statement under
which the ceding insurer in a given reinsurance agreement initially seeks
credit according to the provisions of the Act, and (ii) on or before March 1 of
each successive year in which the ceding insurer seeks credit or the assuming
insurer seeks standing in this Commonwealth as an accredited reinsurer.
G. Unless an extension
for the time of filing is first granted in writing, the failure to submit
timely filings or to respond within 10 days to any request by the Commission
for additional documents shall be considered grounds for disallowing credit
and/or revoking the standing of an accredited reinsurer. Extensions may be
granted for any period determined by the Commission, provided, the request for
extension is in writing and is supported by a showing of good and valid cause.
14VAC5-300-60. Credit for
reinsurance; reinsurer licensed in this Commonwealth.
Pursuant to §§ § 38.2-1316.2
A1 A 1 and 38.2-1316.3 A1 B of the Act, the Commission
commission shall allow credit when reinsurance is ceded to an assuming
insurer which is licensed to transact insurance in this Commonwealth. For
purposes of this section, an insurer shall not be considered so
"licensed" unless it is fully authorized to actively solicit and
conduct its business in this Commonwealth and in its domiciliary state.
14VAC5-300-70. Credit for
reinsurance; accredited reinsurers.
A. Pursuant to § 38.2-1316.2
A2 and § 38.2-1316.3 A1 A 2 of the Act, the Commission commission
shall allow credit when reinsurance is ceded to an assuming insurer which is
an accredited reinsurer as of the date of the ceding insurer's statutory
financial statement.
B. An assuming insurer
which satisfies the filing requirements of this section, and which maintains a
surplus to policyholders in an amount not less than $20 million shall be
recognized in this Commonwealth as an accredited reinsurer.
1. Such insurer's initial
request for standing as an accredited reinsurer shall be deemed granted 90 days
following the Commission's receipt of documents required by subdivisions D 1
and D 2, unless the Commission specifically requests, in writing, information
pursuant to subdivision D 3 of this section.
2. Any request by the
Commission for additional information pursuant to subdivision D 3 of this
section, shall toll the statutory provisions for automatic recognition as an
accredited reinsurer.
C. An assuming insurer
which fails to maintain surplus to policyholders of at least $20 million may
request recognition as an accredited reinsurer by filing, in addition to the
other requirements set forth in this section, a letter of explanation as to why
its surplus is less than $20 million and justification as to why the Commission
should recognize the accreditation of such assuming insurer.
1. Such insurers shall be
recognized as accredited reinsurers only upon a showing of good and valid
cause.
2. Such insurers' standing
as accredited reinsurers may be limited to certain types of reinsurance
transactions, or otherwise applicable only with regard to specified types of
reinsurance contracts, such as pooling arrangements among affiliates within the
same holding company system.
D. Filing requirements.
1. As a condition of
accreditation, an accredited reinsurer shall file with the Commission:
a. Evidence of its
submission to the Commission's authority to examine its books and records; and
b. Evidence of its
submission to this Commonwealth's jurisdiction and appointment of the Clerk of
the Commission as agent for service of process in any action, suit or
proceeding instituted by or on behalf of the ceding company.
2. The following documents
shall be filed prior to accreditation and annually thereafter for as long as
the assuming insurer seeks standing in this Commonwealth as an accredited
reinsurer.
a. A certified copy of a
certificate of authority or of compliance or other evidence that it is licensed
to transact insurance or reinsurance in at least one state, or in the case of a
United States branch of an alien assuming insurer, is entered through and
licensed to transact insurance or reinsurance in at least one state.
b. A copy of its statutory
financial statement, and
c. A copy of its most
recent audited financial report.
3. In addition to the
foregoing, the insurer shall file, upon the request of the Commission, any
additional information, certifications or reports of the assuming insurer as
the Commission determines are necessary to verify the licensing status or
financial condition of the assuming insurer.
for reinsurance ceded by
a domestic insurer to an assuming insurer that is accredited as a reinsurer in
this Commonwealth as of the date on which statutory financial statement credit
for reinsurance is claimed. An accredited reinsurer shall:
1. File a properly
executed Certificate of Assuming Insurer as evidence of its submission to this
Commonwealth's jurisdiction and to this Commonwealth's authority to examine its
books and records;
2. File with the
commission a certified copy of a certificate of authority or other acceptable
evidence that it is licensed to transact insurance or reinsurance in at least
one state, or, in the case of a United States branch of an alien assuming
insurer, is entered through and licensed to transact insurance or reinsurance
in at least one state;
3. File annually with the
commission [ a an electronic ] copy
of its annual statement filed with the insurance department of its state of
domicile or, in the case of an alien assuming insurer, with the state through
which it is entered and in which it is licensed to transact insurance or
reinsurance, and a copy of its most recent audited financial statement; and
4. Maintain a surplus as
regards policyholders in an amount not less than $20 million, or obtain the
affirmative approval of the commission upon a finding that it has adequate
financial capacity to meet its reinsurance obligations and is otherwise
qualified to assume reinsurance from domestic insurers.
B. If the commission
determines that the assuming insurer has failed to meet or maintain any of
these qualifications, the commission may upon written notice and opportunity
for hearing, suspend or revoke the accreditation. Credit shall not be allowed a
domestic ceding insurer under this section if the assuming insurer's
accreditation has been revoked by the commission, or if the reinsurance was
ceded while the assuming insurer's accreditation was under suspension by the commission.
14VAC5-300-80. Credit for
reinsurance; reinsurer domiciled and licensed in another state, and neither
licensed nor accredited in Virginia.
A. Pursuant to the
provisions of § 38.2-1316.2 A 3 of the Act, the Commission commission
shall allow credit when a domestic insurer cedes reinsurance to an assuming
insurer which as of the date of the ceding insurer's statutory financial
statement:
1. Maintains a surplus to
policyholders in an amount not less than $20 million;
2. Is domiciled and
licensed, or entered through and licensed, in a state which employs standards
regarding credit for reinsurance substantially similar to those applicable
under the Act and this chapter;
3. Submits to the
Commission's authority to examine its books and records;
4. Submits to this
Commonwealth's jurisdiction and designates the Clerk of the Commission as agent
for service of process in any action, suit or proceeding instituted by or on
behalf of the ceding company; and
5. Satisfies the
applicable filing requirements set forth in subsection C of this section.
B. A foreign or alien
ceding insurer taking credit pursuant to § 38.2-1316.3 A2 of the Act must cede
reinsurance to an assuming insurer which:
1. Maintains a surplus to
policyholders in an amount not less than $20 million;
2. Is licensed and
authorized to actively solicit and conduct its business in at least one state;
and
3. Satisfies the
applicable filing requirements set forth in subsection C of this section.
C. Filing requirements.
1. When credit is requested
for a domestic ceding insurer, the Commission may require that the ceding
insurer file or cause to be filed;
a. Evidence to support a
finding by the Commission that the assuming insurer's state of domicile, or
entry, employs standards regarding credit for reinsurance substantially
similar to those set forth in the Act. Such evidence must be in a form
acceptable to the Commission, and at the request of the Commission shall
consist of statutes, regulations, and interpretations of the standards utilized
by the state of domicile, or entry.
b. Such additional
information, certifications, or reports of the assuming insurer as the
Commission determines are necessary to verify the licensing status or
financial condition of the assuming insurer.
2. When credit is
requested for a foreign or alien ceding insurer, the Commission may require the
ceding insurer to file or cause to be filed such information, certifications or
reports of the assuming insurer as the Commission determines are necessary to
verify the licensing status or financial condition of the assuming insurer.
3. When reinsurance is
ceded by a domestic insurer and assumed pursuant to pooling arrangements among
insurers in the same holding company, unless specifically required by the
Commission, the $20 million surplus to policyholder requirement shall be deemed
waived. Notwithstanding this provision, the Commission may require the ceding
insurer to file or cause to be filed:
a. A copy of the
underlying pooling agreement.
b. Such additional
information, certifications or reports of the members of the pooling
arrangement as the Commission determines are necessary to verify the financial
condition of the collective or individual members of the pooling arrangement.
for reinsurance ceded by
a domestic insurer to an assuming insurer that as of any date on which
statutory financial statement credit for reinsurance is claimed:
1. Is domiciled in (or, in
the case of a United States branch of an alien assuming insurer, is entered
through) a state that employs standards regarding credit for reinsurance
substantially similar to those applicable under the Act and this chapter;
2. Maintains a surplus as
regards policyholders in an amount not less than $20 million; and
3. Files a properly
executed Certificate of Assuming Insurer with the commission as evidence of its
submission to this Commonwealth's authority to examine its books and records.
B. The provisions of this
section relating to surplus as regards policyholders shall not apply to
reinsurance ceded and assumed pursuant to pooling arrangements among insurers
in the same holding company system. As used in this section,
"substantially similar" standards means credit for reinsurance
standards that the commission determines equal or exceed the standards of the Act
and this chapter.
14VAC5-300-90. Credit for
reinsurance; reinsurers maintaining trust funds.
A. Pursuant to § 38.2-1316.2
A 4 or § 38.2-1316.3 A 3 of the Act, the commission shall allow credit
for reinsurance ceded to a trusteed assuming insurer which, as of the date of
the ceding insurer's statutory financial statement:
1. Maintains a trust fund and
trusteed surplus that complies with the provisions of § 38.2-1316.2 A 4 of
the Act;
2. Complies with the
requirements set forth in subsections B, C and D of this section; and
3. Reports annually to the
commission on or before June 1 of each year in which a ceding insurer seeks
reserve credit under the Act substantially the same information as that
required to be reported on the NAIC annual statement form by licensed insurers,
to enable the commission to determine the sufficiency of the trust fund. The
accounting shall, among other things, set forth the balance to the trust and
list the trust's investments as of the preceding year end and shall
certify the date of termination of the trust, if so planned, or certify that
the trust shall not expire prior to the next following December 31.
B. When credit is taken
for reinsurance ceded to any trusteed assuming insurer, the commission may
require that the ceding insurer file or cause to be filed:
1. A copy of the trust
agreement pertaining to the requisite trust funds along with a statement
identifying and locating the specific provisions in the agreement which satisfy
the form of trust requirements set forth in subsection E of this section;
2. Satisfactory evidence
that the requisite trust funds are held in a qualified United States financial
institution;
3. A certified statement
and accounting of trusteed surplus executed by a duly authorized officer or
representative of the trusteed assuming insurer;
4. A certified statement
from the trustee of the trust listing the assets of the trust; and
5. A certified English
translation for any foreign language documents filed pursuant to the Act or
this chapter.
C. When credit is
requested for reinsurance ceded to trusteed assuming insurer which is a group
including incorporated and individual unincorporated underwriters, the group
shall make available to the commission annual certifications of solvency of
each underwriter member of the group, prepared by the group's domiciliary
regulator and its independent accountant, or if a certification is unavailable
a financial statement, prepared by independent public accountants, of each
underwriter member of the group.
D. When credit is
requested for reinsurance ceded to a trusteed assuming insurer which is a group
of incorporated insurers under common administration, the group shall:
1. File evidence of its
submission to the commission's authority to examine the books and records of
any member of the group.
2. Certify that any member
examined will bear the expense of any such examination.
3. Make available to the
commission an annual certification of each underwriter member's solvency by the
member's domiciliary regulator and financial statements prepared by independent
public accountants of each underwriter member of the group.
4. If requested by the
commission, file copies of annual statements for the three-year period
preceding the initial request for credit, or other documents satisfactory to
the commission, which show that the group has continuously transacted an
insurance business outside the United States for at least three years.
E. Form of Trust. The
trust required under § 38.2-1316.2 A 4 of the Act and subdivisions A 2, A 3, B
1, and B 2 of this section shall provide that: B. The following
requirements apply to the following categories of assuming insurer:
1. The trust fund for a
single assuming insurer shall consist of funds in trust in an amount not less
than the assuming insurer's liabilities attributable to reinsurance ceded by
United States domiciled insurers, and in addition, the assuming insurer shall
maintain a trusteed surplus of not less than $20 million, except as provided in
subdivision 2 of this subsection.
2. At any time after the
assuming insurer has permanently discontinued underwriting new business secured
by the trust for at least three full years, the commissioner with principal
regulatory oversight of the trust may authorize a reduction in the required
trusteed surplus, but only after a finding, based on an assessment of the risk,
that the new required surplus level is adequate for the protection of United
States ceding insurers, policyholders, and claimants in light of reasonably
foreseeable adverse loss development. The risk assessment may involve an
actuarial review, including an independent analysis of reserves and cash flows,
and shall consider all material risk factors, including when applicable the
lines of business involved, the stability of the incurred loss estimates and
the effect of the surplus requirements on the assuming insurer's liquidity or
solvency. The minimum required trusteed surplus may not be reduced to an amount
less than 30% of the assuming insurer's liabilities attributable to reinsurance
ceded by United States ceding insurers covered by the trust.
3. a. The trust fund for a
group including incorporated and individual unincorporated underwriters shall
consist of:
(1) For reinsurance ceded
under reinsurance agreements with an inception, amendment or renewal date on or
after January 1, 1993, funds in trust in an amount not less than the respective
underwriters' several liabilities attributable to business ceded by United
States domiciled ceding insurers to any underwriter of the group;
(2) For reinsurance ceded
under reinsurance agreements with an inception date on or before December 31,
1992, and not amended or renewed after that date, notwithstanding the other
provisions of this chapter, funds in trust in an amount not less than the
respective underwriters' several insurance and reinsurance liabilities
attributable to business written in the United States; and
(3) In addition to these
trusts, the group shall maintain a trusteed surplus of which $100 million shall
be held jointly for the benefit of the United States domiciled ceding insurers
of any member of the group for all the years of account.
b. The incorporated
members of the group shall not be engaged in any business other than
underwriting as a member of the group and shall be subject to the same level of
regulation and solvency control by the group's domiciliary regulator as are the
unincorporated members. The group shall, within 90 days after its financial
statements are due to be filed with the group's domiciliary regulator, provide
to the commission:
(1) An annual
certification by the group's domiciliary regulator of the solvency of each
underwriter member of the group; or
(2) If a certification is
unavailable, a financial statement, prepared by independent public accountants,
of each underwriter member of the group.
4. a. The trust fund for a
group of incorporated insurers under common administration, whose members
possess aggregate policyholders surplus of $10 billion (calculated and reported
in substantially the same manner as prescribed by the NAIC Annual Statement
Instructions and the NAIC Accounting Practices and Procedures Manual) and which
has continuously transacted an insurance business outside the United States for
at least three years immediately prior to making application for accreditation,
shall:
(1) Consist of funds in
trust in an amount not less than the assuming insurers' several liabilities
attributable to business ceded by United States domiciled ceding insurers to
any members of the group pursuant to reinsurance contracts issued in the name
of such group;
(2) Maintain a joint
trusteed surplus of which $100 million shall be held jointly for the benefit of
United States domiciled ceding insurers of any member of the group; and
(3) File a properly
executed Certificate of Assuming Insurer as evidence of the submission to this
Commonwealth's authority to examine the books and records of any of its members
and shall certify that any member examined will bear the expense of any such
examination.
b. Within 90 days after
the statements are due to be filed with the group's domiciliary regulator, the
group shall file with the commission an annual certification of each
underwriter member's solvency by the member's domiciliary regulators, and
financial statements, prepared by independent public accountants, of each
underwriter member of the group.
C. 1. Credit for
reinsurance shall not be granted unless the form of the trust and any
amendments to the trust have been approved by either the commissioner of the
state where the trust is domiciled or the commissioner of another state who,
pursuant to the terms of the trust instrument, has accepted responsibility for
regulatory oversight of the trust. The form of the trust and any trust
amendments also shall be filed with the commissioner of every state in which
the ceding insurer beneficiaries of the trust are domiciled. The trust
instrument shall provide that:
1. a. Contested
claims shall be valid and enforceable out of funds in trust to the extent
remaining unsatisfied 30 days after entry of the final order of any court of
competent jurisdiction in the United States.;
2. b. Legal
title to the assets of the trust shall be vested in the trustee for the benefit
of the grantor's United States policyholders and ceding insurers, their assigns
and successors in interest.;
3. c. The trust
and the assuming insurer shall be subject to examination as determined by the
commission.;
4. d. The trust
shall remain in effect for as long as the assuming insurer, or any member or
former member of a group of insurers, shall have outstanding obligations under
reinsurance agreements subject to the trust.; and
5. e. No later
than February 28 of each year the trustees of the trust (i) shall report to the
commission in writing setting forth the balance in the trust and listing the
trust's investments at the preceding year end and (ii) shall certify the date
of termination of the trust, if so planned, or certify that the trust shall not
expire prior to the next December 31.
F. Any amendment to the
trust, required under § 38.2-1316.2 A 4 of the Act and subdivisions A 1, A 3, B
1, and B 2 of this section, shall be filed with the commission within 30 days
after the effective date of the amendment.
2. a. Notwithstanding any
other provisions in the trust instrument, if the trust fund is inadequate
because it contains an amount less than the amount required by this subsection
or if the grantor of the trust has been declared insolvent or placed into
receivership, rehabilitation, liquidation or similar proceedings under the laws
of its state or country of domicile, the trustee shall comply with an order of
the commissioner with regulatory oversight over the trust or with an order of a
court of competent jurisdiction directing the trustee to transfer to the
commissioner with regulatory oversight over the trust or other designated
receiver all of the assets of the trust fund.
b. The assets shall be
distributed by and claims shall be filed with and valued by the commissioner
with regulatory oversight over the trust in accordance with the laws of the
state in which the trust is domiciled applicable to the liquidation of domestic
insurance companies.
c. If the commissioner
with regulatory oversight over the trust determines that the assets of the
trust fund or any part thereof are not necessary to satisfy the claims of the
United States beneficiaries of the trust, the commissioner with regulatory
oversight over the trust shall return the assets, or any part thereof, to the
trustee for distribution in accordance with the trust agreement.
d. The grantor shall waive
any right otherwise available to it under United States law that is inconsistent
with this provision.
D. For purposes of this
section, the term "liabilities" shall mean the assuming insurer's
gross liabilities attributable to reinsurance ceded by United States domiciled
insurers excluding liabilities that are otherwise secured by acceptable means,
and, shall include:
1. For business ceded by
domestic insurers authorized to write accident and health, and property and
casualty insurance:
a. Losses and allocated
loss expenses paid by the ceding insurer, recoverable from the assuming
insurer;
b. Reserves for losses
reported and outstanding;
c. Reserves for losses
incurred but not reported;
d. Reserves for allocated
loss expenses; and
e. Unearned premiums.
2. For business ceded by
domestic insurers authorized to write life, health, and annuity insurance:
a. Aggregate reserves for
life policies and contracts net of policy loans and net due and deferred
premiums;
b. Aggregate reserves for
accident and health policies;
c. Deposit funds and other
liabilities without life or disability contingencies; and
d. Liabilities for policy
and contract claims.
E. Assets deposited in
trusts established pursuant to § 38.2-1316.2 A of the Act and this
section shall be valued according to their current fair market value and shall
consist only of cash in United States dollars, certificates of deposit issued
by a United States financial institution as defined in § 38.2-1316.1 of
the Act, clean, irrevocable, unconditional, and "evergreen" letters
of credit issued or confirmed by a qualified United States financial
institution, as defined in § 38.2-1316.1, and investments of the type
specified in this subsection, but investments in or issued by an entity
controlling, controlled by or under common control with either the grantor or
beneficiary of the trust shall not exceed 5.0% of total investments. No more
than 20% of the total of the investments in the trust may be foreign
investments authorized under subdivisions 1 e, 3, 5 b, or 6 of this subsection,
and no more than 10% of the total of the investments in the trust may be
securities denominated in foreign currencies. For purposes of applying the
preceding sentence, a depository receipt denominated in United States dollars
and representing rights conferred by a foreign security shall be classified as
a foreign investment denominated in a foreign currency. The assets of a trust
established to satisfy the requirements of § 38.2-1316.2 A 4 shall
be invested only as follows:
1. Government obligations
that are not in default as to principal or interest, that are valid and legally
authorized and that are issued, assumed, or guaranteed by:
a. The United States or by
any agency or instrumentality of the United States;
b. A state of the United
States;
c. A territory,
possession, or other governmental unit of the United States;
d. An agency or
instrumentality of a governmental unit referred to in subdivisions 1 b and c of
this subsection if the obligations shall be by law (statutory [ of
or ] otherwise) payable, as to both principal and interest,
from taxes levied or by law required to be levied or from adequate special
revenues pledged or otherwise appropriated or by law required to be provided
for making these payments, but shall not be obligations eligible for investment
under this subsection if payable solely out of special assessments on
properties benefited by local improvements; or
e. The government of any
other country that is a member of the Organization for Economic Cooperation and
Development and whose government obligations are rated A or higher, or the
equivalent, by a rating agency recognized by the Securities Valuation Office of
the NAIC;
2. Obligations that are
issued in the United States, or that are dollar denominated and issued in a
non-United States market, by a solvent United States institution (other than an
insurance company) or that are assumed or guaranteed by a solvent United States
institution (other than an insurance company) and that are not in default as to
principal or interest if the obligations:
a. Are rated A or higher
(or the equivalent) by a securities rating agency recognized by the Securities
Valuation Office of the NAIC, or if not so rated, are similar in structure and
other material respects to other obligations of the same institution that are
so rated;
b. Are insured by at least
one authorized insurer (other than the investing insurer or a parent,
subsidiary or affiliate of the investing insurer) licensed to insure
obligations in this Commonwealth and, after considering the insurance, are
rated AAA (or the equivalent) by a securities rating agency recognized by the
Securities Valuation Office of the NAIC; or
c. Have been designated as
Class One or Class Two by the Securities Valuation Office of the NAIC;
3. Obligations issued,
assumed or guaranteed by a solvent non-United States institution chartered in a
country that is a member of the Organization for Economic Cooperation and
Development or obligations of United States corporations issued in a non-United
States currency, provided that in either case the obligations are rated A or
higher, or the equivalent, by a rating agency recognized by the Securities
Valuation Office of the NAIC;
4. An investment made
pursuant to the provisions of subdivision 1, 2, or 3 of this subsection shall
be subject to the following additional limitations:
a. An investment in or
loan upon the obligations of an institution other than an institution that
issues mortgage-related securities shall not exceed 5.0% of the assets of the trust;
b. An investment in any
one mortgage-related security shall not exceed 5.0% of the assets of the trust;
c. The aggregate total
investment in mortgage-related securities shall not exceed 25% of the assets of
the trust; and
d. Preferred or guaranteed
shares issued or guaranteed by a solvent United States institution are
permissible investments if all of the institution's obligations are eligible as
investments under subdivisions 2 a and c of this subsection, but shall not
exceed 2.0% of the assets of the trust.
5. Equity interests.
a. Investments in common
shares or partnership interests of a solvent United States institution are
permissible if:
(1) Its obligations and
preferred shares, if any, are eligible as investments under this subsection;
and
(2) The equity interests
of the institution (except an insurance company) are registered on a national
securities exchange as provided in the Securities Exchange Act of 1934, 15 USC
§§ 78 a to 78 kk or otherwise registered pursuant to that Act, and if otherwise
registered, price quotations for them are furnished through a nationwide
automated quotations system approved by the Financial Industry Regulatory
Authority, or successor organization. A trust shall not invest in equity
interests under this subdivision an amount exceeding 1.0% of the assets of the
trust even though the equity interests are not so registered and are not issued
by an insurance company;
b. Investments in common
shares of a solvent institution organized under the laws of a country that is a
member of the Organization for Economic Cooperation and Development, if:
(1) All its obligations
are rated A or higher, or the equivalent, by a rating agency recognized by the
Securities Valuation Office of the NAIC; and
(2) The equity interests
of the institution are registered on a securities exchange regulated by the
government of a country that is a member of the Organization for Economic
Cooperation and Development;
c. An investment in or
loan upon any one institution's outstanding equity interests shall not exceed
1.0% of the assets of the trust. The cost of an investment in equity interests
made pursuant to this subdivision, when added to the aggregate cost of other
investments in equity interests then held pursuant to this subdivision, shall
not exceed 10% of the assets in the trust;
6. Obligations issued,
assumed, or guaranteed by a multinational development bank, provided the
obligations are rated A or higher, or the equivalent, by a rating agency
recognized by the Securities Valuation Office of the NAIC.
7. Investment companies.
a. Securities of an
investment company registered pursuant to the Investment Company Act of 1940,
15 USC § 80 a, are permissible investments if the investment company:
(1) Invests at least 90%
of its assets in the types of securities that qualify as an investment under
subdivision 1, 2, or 3 of this subsection or invests in securities that are
determined by the commission to be substantively similar to the types of securities
set forth in subdivision 1, 2, or 3 of this subsection; or
(2) Invests at least 90%
of its assets in the types of equity interests that qualify as an investment
under subdivision 5 a of this subsection;
b. Investments made by a
trust in investment companies under this subdivision shall not exceed the
following limitations:
(1) An investment in an
investment company qualifying under subdivision 7 a (1) of this subsection
shall not exceed 10% of the assets in the trust and the aggregate amount of investment
in qualifying investment companies shall not exceed 25% of the assets in the
trust; and
(2) Investments in an
investment company qualifying under subdivision 7 a (2) of this subsection
shall not exceed 5.0% of the assets in the trust and the aggregate amount of
investment in qualifying investment companies shall be included when
calculating the permissible aggregate value of equity interests pursuant to
subdivision 5 a of this subsection.
8. Letters of credit.
a. In order for a letter
of credit to qualify as an asset of the trust, the trustee shall have the right
and the obligation pursuant to the deed of trust or some other binding
agreement (as duly approved by the commission), to immediately draw down the
full amount of the letter of credit and hold the proceeds in trust for the
beneficiaries of the trust if the letter of credit will otherwise expire
without being renewed or replaced.
b. The trust agreement
shall provide that the trustee shall be liable for its negligence, willful
misconduct or lack of good faith. The failure of the trustee to draw against
the letter of credit in circumstances where such draw would be required shall
be deemed to be negligence and/or willful misconduct.
F. A specific security
provided to a ceding insurer by an assuming insurer pursuant to 14VAC5-300-100
shall be applied, until exhausted, to the payment of liabilities of the
assuming insurer to the ceding insurer holding the specific security prior to,
and as a condition precedent for, presentation of a claim by the ceding insurer
for payment by a trustee of a trust established by the assuming insurer
pursuant to this section.
14VAC5-300-95. Credit for
reinsurance; certified reinsurers.
A. Pursuant to
§ 38.2-1316.2 B of the Act, the commission shall allow credit for
reinsurance ceded by a domestic insurer to an assuming insurer that has been
certified as a reinsurer in this Commonwealth at all times for which statutory
financial statement credit for reinsurance is claimed under this section. The
credit allowed shall be based upon the security held by or on behalf of the
ceding insurer in accordance with a rating assigned to the certified reinsurer
by the commission. The security shall be in a form consistent with the
provisions of § 38.2-1316.2 B and 14VAC5-300-110, 14VAC5-300-120,
14VAC5-300-130 or 14VAC5-300-140. The amount of security required in order for
full credit to be allowed shall correspond with the following requirements:
|
1. Ratings
|
Security Required
|
|
|
Secure – 1
|
0.0%
|
|
|
Secure – 2
|
10%
|
|
|
Secure – 3
|
20%
|
|
|
Secure – 4
|
50%
|
|
|
Secure – 5
|
75%
|
|
|
Vulnerable – 6
|
100%
|
2. Affiliated reinsurance
transactions shall receive the same opportunity for reduced security
requirements as all other reinsurance transactions.
3. The commission shall
require the certified reinsurer to post 100%, for the benefit of the ceding
insurer or its estate, security upon the entry of an order of rehabilitation,
liquidation, or conservation against the ceding insurer.
4. In order to facilitate
the prompt payment of claims, a certified reinsurer shall not be required to
post security for catastrophe recoverables for a period of one year from the
date of the first instance of a liability reserve entry by the ceding company
as a result of a loss from a catastrophic occurrence that is likely to result
in significant insured losses, as recognized by the commission. The one year
deferral period is contingent upon the certified reinsurer continuing to pay
claims in a timely manner. Reinsurance recoverables for only the following lines
of business as reported on the NAIC annual financial statement related
specifically to the catastrophic occurrence will be included in the deferral:
a. Line 1: Fire
b. Line 2: Allied Lines
c. Line 3: Farmowners
multiple peril
d. Line 4: Homeowners
multiple peril
e. Line 5: Commercial
multiple peril
f. Line 9: Inland marine
g. Line 12: Earthquake
h. Line 21: Auto physical
damage
5. Credit for reinsurance
under this section shall apply only to reinsurance contracts entered into or
renewed on or after the effective date of the certification of the assuming
insurer. Any reinsurance contract entered into prior to the effective date of
the certification of the assuming insurer that is subsequently amended by
mutual agreement of the parties to the reinsurance contract after the effective
date of the certification of the assuming insurer, or a new reinsurance
contract, covering any risk for which collateral was provided previously, shall
only be subject to this section with respect to losses incurred and reserves
reported from and after the effective date of the amendment or new contract.
6. Nothing in this section
shall prohibit the parties to a reinsurance agreement from agreeing to
provisions establishing security requirements that exceed the minimum security
requirements established for certified reinsurers under this section.
B. Certification
procedure.
1. The commission shall
post notice on the Bureau of Insurance's website promptly upon receipt of any
application for certification, including instructions on how members of the
public may respond to the application. The commission may not take final action
on the application until at least 30 days after posting the notice required by
this subdivision.
2. The commission shall
issue written notice to an assuming insurer that has made application and been
approved as a certified reinsurer. Included in such notice shall be the rating
assigned the certified reinsurer in accordance with subsection A of this
section. The commission shall publish a list of all certified reinsurers and
their ratings.
3. In order to be eligible
for certification, the assuming insurer shall meet the following requirements:
a. The assuming insurer
shall be domiciled and licensed to transact insurance or reinsurance in a
qualified jurisdiction, as determined by the commission pursuant to subsection
C of this section.
b. The assuming insurer
shall maintain capital and surplus, or its equivalent, of no less than $250
million calculated in accordance with subdivision 4 h of this subsection. This
requirement may also be satisfied by an association including incorporated and
individual unincorporated underwriters having minimum capital and surplus
equivalents (net of liabilities) of at least $250 million and a central fund
containing a balance of at least $250 million.
c. The assuming insurer
shall maintain financial strength ratings from two or more rating agencies
deemed acceptable by the commission. These ratings shall be based on
interactive communication between the rating agency and the assuming insurer
and shall not be based solely on publicly available information. These
financial strength ratings will be one factor used by the commission in
determining the rating that is assigned to the assuming insurer. Acceptable
rating agencies include the following:
(1) Standard & Poor's;
(2) Moody's Investors
Service;
(3) Fitch Ratings;
(4) A.M. Best Company; or
(5) Any other nationally
recognized statistical rating organization.
d. The certified reinsurer
shall comply with any other requirements reasonably imposed by the commission.
4. Each certified
reinsurer shall be rated on a legal entity basis, with due consideration being
given to the group rating where appropriate, except that an association
including incorporated and individual unincorporated underwriters that has been
approved to do business as a single certified reinsurer may be evaluated on the
basis of its group rating. Factors that may be considered as part of the
evaluation process include, but are not limited to, the following:
a. The certified reinsurer's
financial strength rating from an acceptable rating agency. The maximum rating
that a certified reinsurer may be assigned will correspond to its financial
strength rating as outlined in the table below. The commission shall use the
lowest financial strength rating received from an approved rating agency in
establishing the maximum rating of a certified reinsurer. A failure to obtain
or maintain at least two financial strength ratings from acceptable rating
agencies will result in loss of eligibility for certification:
|
Ratings
|
Best
|
S&P
|
Moody's
|
Fitch
|
|
Secure – 1
|
A++
|
AAA
|
Aaa
|
AAA
|
|
Secure – 2
|
A+
|
AA+, AA, AA-
|
Aa1, Aa2, Aa3
|
AA+, AA, AA-
|
|
Secure – 3
|
A
|
A+, A
|
A1, A2
|
A+, A
|
|
Secure – 4
|
A-
|
A-
|
A3
|
A-
|
|
Secure – 5
|
B++, B+
|
BBB+, BBB, BBB-
|
Baa1, Baa2, Baa3
|
BBB+, BBB, BBB-
|
|
Vulnerable – 6
|
B, B-, C++, C+, C, C-, D, E, F
|
BB+, BB, BB-, B+, B, B-, CCC, CC, C, D, R
|
Ba1, Ba2, Ba3, B1, B2, B3, Caa, Ca, C
|
BB+, BB, BB-, B+, B, B-, CCC+, CC, CCC-, DD
|
b. The business practices
of the certified reinsurer in dealing with its ceding insurers, including its
record of compliance with reinsurance contractual terms and obligations;
c. For certified
reinsurers domiciled in the United States, a review of the most recent
applicable NAIC annual statement blank, either Schedule F (for
property/casualty reinsurers) or Schedule S (for life and health reinsurers);
d. For certified
reinsurers not domiciled in the United States, a review annually of the Assumed
Reinsurance Form CR-F (for property/casualty reinsurers) or the Reinsurance
Assumed Life Insurance, Annuities, Deposit Funds and Other Liabilities Form
CR-S (for life and health reinsurers) of this chapter;
e. The reputation of the
certified reinsurer for prompt payment of claims under reinsurance agreements,
based on an analysis of ceding insurers' Schedule F reporting of overdue
reinsurance recoverables, including the proportion of obligations that are more
than 90 days past due or are in dispute, with specific attention given to
obligations payable to companies that are in administrative supervision or
receivership;
f. Regulatory actions
against the certified reinsurer;
g. The report of the
independent auditor on the financial statements of the insurance enterprise, on
the basis described in subdivision 4 h of this subsection;
h. For certified
reinsurers not domiciled in the United States, audited financial statements
(audited United States GAAP basis if available, audited IFRS basis statements
are allowed but shall include an audited footnote reconciling equity and net
income to a United States GAAP basis), regulatory filings, and actuarial
opinion (as filed with the non-United States jurisdiction supervisor). Upon the
initial application for certification, the commission will consider audited
financial statements for the last three years filed with its non-United States
jurisdiction supervisor;
i. The liquidation
priority of obligations to a ceding insurer in the certified reinsurer's
domiciliary jurisdiction in the context of an insolvency proceeding;
j. A certified reinsurer's
participation in any solvent scheme of arrangement, or similar procedure, which
involves United States ceding insurers. The commission shall receive prior
notice from a certified reinsurer that proposes participation by the certified
reinsurer in a solvent scheme of arrangement; and
k. Any other information
deemed relevant by the commission.
5. Based on the analysis
conducted under subdivision 4 e of this subsection of a certified reinsurer's
reputation for prompt payment of claims, the commission may make appropriate
adjustments in the security the certified reinsurer is required to post to
protect its liabilities to United States ceding insurers, provided that the
commission shall, at a minimum, increase the security the certified reinsurer
is required to post by one rating level under subdivision 4 a of this
subsection if the commission finds that:
a. More than 15% of the
certified reinsurer's ceding insurance clients have overdue reinsurance
recoverables on paid losses of 90 days or more that are not in dispute and that
exceed $100,000 for each cedent; or
b. The aggregate amount of
reinsurance recoverables on paid losses that are not in dispute that are
overdue by 90 days or more exceeds $50 million.
6. The assuming insurer
shall submit a properly executed Certificate of Certified Reinsurer as evidence
of its submission to the jurisdiction of this Commonwealth, appointment of the
commission as an agent for service of process in this Commonwealth, and
agreement to provide security for 100% of the assuming insurer's liabilities
attributable to reinsurance ceded by United States ceding insurers if it
resists enforcement of a final United States judgment. The commission shall not
certify any assuming insurer that is domiciled in a jurisdiction that the
commission has determined does not adequately and promptly enforce final United
States judgments or arbitration awards.
7. The certified reinsurer
shall agree to meet applicable information filing requirements as determined by
the commission, both with respect to an initial application for certification
and on an ongoing basis. All information submitted by certified reinsurers that
are not otherwise public information subject to disclosure shall be exempted
from disclosure under §§ 38.2-221.3 and 38.2-1306.1 of the Act and shall
be withheld from public disclosure. The applicable information filing
requirements are, as follows:
a. Notification within 10
days of any regulatory actions taken against the certified reinsurer, any
change in the provisions of its domiciliary license or any change in rating by
an approved rating agency, including a statement describing such changes and
the reasons therefore;
b. Annually, Form CR-F or
CR-S, as applicable;
c. Annually, the report of
the independent auditor on the financial statements of the insurance
enterprise, on the basis described in subdivision 7 d of this subsection;
d. Annually, audited
financial statements (audited United States GAAP basis if available, audited
IFRS basis statements are allowed but shall include an audited footnote
reconciling equity and net income to a United States GAAP basis), regulatory
filings, and actuarial opinion (as filed with the certified reinsurer's
supervisor). Upon the initial certification, audited financial statements for
the last three years filed with the certified reinsurer's supervisor;
e. At least annually, an
updated list of all disputed and overdue reinsurance claims regarding
reinsurance assumed from United States domestic ceding insurers;
f. A certification from
the certified reinsurer's domestic regulator that the certified reinsurer is in
good standing and maintains capital in excess of the jurisdiction's highest
regulatory action level; and
g. Any other information
that the commission may reasonably require.
8. Change in rating or
revocation of certification.
a. In the case of a
downgrade by a rating agency or other disqualifying circumstance, the
commission shall upon written notice assign a new rating to the certified
reinsurer in accordance with the requirements of subdivision 4 a of this
subsection.
b. The commission shall
have the authority to suspend, revoke, or otherwise modify a certified
reinsurer's certification at any time if the certified reinsurer fails to meet
its obligations or security requirements under this section, or if other
financial or operating results of the certified reinsurer, or documented
significant delays in payment by the certified reinsurer, lead the commission
to reconsider the certified reinsurer's ability or willingness to meet its
contractual obligations.
c. If the rating of a
certified reinsurer is upgraded by the commission, the certified reinsurer may
meet the security requirements applicable to its new rating on a prospective
basis, but the commission shall require the certified reinsurer to post
security under the previously applicable security requirements as to all
contracts in force on or before the effective date of the upgraded rating. If
the rating of a certified reinsurer is downgraded by the commission, the
commission shall require the certified reinsurer to meet the security
requirements applicable to its new rating for all business it has assumed as a
certified reinsurer.
d. Upon revocation of the
certification of a certified reinsurer by the commission, the assuming insurer
shall be required to post security in accordance with 14VAC5-300-110 in order
for the ceding insurer to continue to take credit for reinsurance ceded to the
assuming insurer. If funds continue to be held in trust in accordance with
14VAC5-300-90, the commission may allow additional credit equal to the ceding
insurer's pro rata share of such funds, discounted to reflect the risk of
uncollectibility and anticipated expenses of trust administration.
Notwithstanding the change of a certified reinsurer's rating or revocation of
its certification, a domestic insurer that has ceded reinsurance to that
certified reinsurer may not be denied credit for reinsurance for a period of
three months for all reinsurance ceded to that certified reinsurer, unless the
reinsurance is found by the commission to be at high risk of uncollectibility.
C. Qualified
jurisdictions.
1. If, upon conducting an
evaluation under this section with respect to the reinsurance supervisory
system of any non-United States assuming insurer, the commission determines
that the jurisdiction qualifies to be recognized as a qualified jurisdiction,
the commission shall publish notice and evidence of such recognition in an
appropriate manner. The commission may establish a procedure to withdraw
recognition of those jurisdictions that are no longer qualified.
2. In order to determine
whether the domiciliary jurisdiction of a non-United States assuming insurer is
eligible to be recognized as a qualified jurisdiction, the commission shall
evaluate the reinsurance supervisory system of the non-United States
jurisdiction, both initially and on an ongoing basis, and consider the rights,
benefits, and the extent of reciprocal recognition afforded by the non-United
States jurisdiction to reinsurers licensed and domiciled in the United States.
The commission shall determine the appropriate approach for evaluating the
qualifications of such jurisdictions, and create and publish a list of
jurisdictions whose reinsurers may be approved by the commission as eligible
for certification. A qualified jurisdiction shall agree to share information
and cooperate with the commission with respect to all certified reinsurers
domiciled within that jurisdiction. Additional factors to be considered in
determining whether to recognize a qualified jurisdiction, in the discretion of
the commission, include but are not limited to the following:
a. The framework under
which the assuming insurer is regulated.
b. The structure and
authority of the domiciliary regulator with regard to solvency regulation
requirements and financial surveillance.
c. The substance of
financial and operating standards for assuming insurers in the domiciliary
jurisdiction.
d. The form and substance
of financial reports required to be filed or made publicly available by
reinsurers in the domiciliary jurisdiction and the accounting principles used.
e. The domiciliary regulator's
willingness to cooperate with United States regulators in general and the
commission in particular.
f. The history of
performance by assuming insurers in the domiciliary jurisdiction.
g. Any documented evidence
of substantial problems with the enforcement of final United States judgments
in the domiciliary jurisdiction. A jurisdiction will not be considered to be a
qualified jurisdiction if the commission has determined that it does not
adequately and promptly enforce final United States judgments or arbitration
awards.
h. Any relevant
international standards or guidance with respect to mutual recognition of
reinsurance supervision adopted by the International Association of Insurance
Supervisors or successor organization.
i. Any other matters deemed
relevant by the commission.
3. A list of qualified
jurisdictions shall be published through the NAIC committee process. The
commission shall consider this list in determining qualified jurisdictions. If
the commission approves a jurisdiction as qualified that does not appear on the
list of qualified jurisdictions, the commission shall provide thoroughly
documented justification with respect to the criteria provided under
subdivisions 2 a through i of this subsection.
4. United States
jurisdictions that meet the requirements for accreditation under the NAIC
financial standards and accreditation program shall be recognized as qualified
jurisdictions.
D. Recognition of
certification issued by an NAIC accredited jurisdiction.
1. If an applicant for
certification has been certified as a reinsurer in an NAIC accredited
jurisdiction, the commission has the discretion to defer to that jurisdiction's
certification, and to defer to the rating assigned by that jurisdiction, if the
assuming insurer submits a properly executed Certificate of Certified Reinsurer
and such additional information as the commission requires. The assuming
insurer shall be considered to be a certified reinsurer in this Commonwealth.
2. Any change in the
certified reinsurer's status or rating in the other jurisdiction shall apply
automatically in this Commonwealth as of the date it takes effect in the other
jurisdiction. The certified reinsurer shall notify the commission of any change
in its status or rating within 10 days after receiving notice of the change.
3. The commission may
withdraw recognition of the other jurisdiction's rating at any time and assign
a new rating in accordance with subdivision B [ 7
8 ] a of this section.
4. The commission may
withdraw recognition of the other jurisdiction's certification at any time,
with written notice to the certified reinsurer. Unless the commission suspends
or revokes the certified reinsurer's certification in accordance with
subdivision B [ 7 8 ] b of this section,
the certified reinsurer's certification shall remain in good standing in this
Commonwealth for a period of three months, which shall be extended if
additional time is necessary to consider the assuming insurer's application for
certification in this Commonwealth.
E. Mandatory funding
clause. In addition to the clauses required under 14VAC5-300-150, reinsurance
contracts entered into or renewed under this section shall include a proper
funding clause, which requires the certified reinsurer to provide and maintain
security in an amount sufficient to avoid the imposition of any financial
statement penalty on the ceding insurer under this section for reinsurance
ceded to the certified reinsurer.
F. The commission shall
comply with all reporting and notification requirements that may be established
by the NAIC with respect to certified reinsurers and qualified jurisdictions.
14VAC5-300-100. Credit for
reinsurance required by law.
When an assuming insurer
fails to meet the requirements of § 38.2-1316.2 or § 38.2-1316.3 of
the Act, the ceding insurer may take credit pursuant to subdivision 1 of §
38.2-1316.4 of the Act but only with respect to the insurance of risks located
in jurisdictions where such reinsurance is required by the applicable law or
regulation of that jurisdiction. As used in this section,
"jurisdiction" means any state, district or territory of the United
States and any lawful national government.
14VAC5-300-110. Reduction
Asset or reduction from liability for reinsurance ceded to an assuming insurer
not meeting the requirements of § 38.2-1316.2 or 38.2-1316.3 14VAC5-300-60
through 14VAC5-300-100.
A. A ceding insurer
taking credit pursuant to subdivision 2 of § 38.2-1316.4 of the Act for
reinsurance ceded shall be allowed such reduction from liability only when the
requirements of subdivision 2 of § 38.2-1316.4 of the Act and 14VAC5-300-120,
14VAC5-300-130 or 14VAC5-300-140 of this chapter are met.
B. In determining the
appropriateness of the proposed security arrangement or accounting treatment,
the Commission may consider the guidelines and other criteria as set forth in
the NAIC Examiners' Handbook, NAIC practice and procedure manuals, or annual
statement instructions in effect when the Commission exercises discretion under
the Act or this chapter (14VAC5-300-10 et seq.). A. Pursuant to
§ 38.2-1316.4 of the Act, the commission shall allow a reduction from
liability for reinsurance ceded by a domestic insurer to an assuming insurer
not meeting the requirements of § 38.2-1316.2 of the Act in an amount not
exceeding the liabilities carried by the ceding insurer. The reduction shall be
in the amount of funds held by or on behalf of the ceding insurer, including
funds held in trust for the exclusive benefit of the ceding insurer, under a
reinsurance contract with such assuming insurer as security for the payment of
obligations under the reinsurance contract. The security shall be held in the
United States subject to withdrawal solely by, and under the exclusive control
of, the ceding insurer or, in the case of a trust, held in a qualified United
States financial institution as defined in § 38.2-1316.1 of the Act. This
security may be in the form of any of the following:
(1) Cash;
(2) Securities listed by
the Securities Valuation Office of the NAIC, including those deemed exempt from
filing as defined by the Purposes and Procedures Manual of the NAIC Securities
Valuation Office, and qualifying as admitted assets;
(3) Clean, irrevocable,
unconditional and "evergreen" letters of credit issued or confirmed
by a qualified United States institution, as defined in § 38.2-1316.1 of
the Act, effective no later than December 31 of the year for which filing is
being made, and in the possession of, or in trust for, the ceding insurer on or
before the filing date of its annual statement. Letters of credit meeting
applicable standards of issuer acceptability as of the dates of their issuance
(or confirmation) shall, notwithstanding the issuing (or confirming)
institution's subsequent failure to meet applicable standards of issuer
acceptability, continue to be acceptable as security until their expiration,
extension, renewal, modification or amendment, whichever first occurs; or
(4) Any other form of
security acceptable to the commission.
B. An admitted asset or a
reduction from liability for reinsurance ceded to an unauthorized assuming
insurer pursuant to this section shall be allowed only when the requirements of
14VAC5-300-150 and the applicable portions of 14VAC5-300-120, 14VAC5-300-130,
or 14VAC5-300-140 of this chapter have been satisfied.
14VAC5-300-120. Trust
agreements qualified under 14VAC5-300-110 and subdivision 2 of § 38.2-1316.4 of
the Act.
A. When a ceding insurer
takes credit pursuant to subdivision 2 of § 38.2-1316.4 of the Act for
reinsurance transactions secured by funds held in trust, the underlying trust
agreement shall meet the following conditions:
1. The trust agreement shall
be entered into between the beneficiary, the grantor and a trustee which shall
be a qualified United States financial institution, as those terms are defined
in this chapter (14VAC5-300-10 et seq.).
2. The trust agreement shall
create a trust account into which assets shall be deposited.
3. All assets in the trust
account shall be held by the trustee at the trustee's office in the United
States, except that a bank may apply for the Commission's permission to use
a foreign branch office of such bank as trustee for trust agreements
established pursuant to this section. If the Commission approves the use of
such foreign branch office as trustee, then its use must be approved by the
beneficiary in writing and the trust agreement must provide that the written
notice described in subdivision A 4 of this section must also be presentable,
as a matter of legal right, at the trustee's principal office in the United
States.
4. The trust agreement shall
provide that:
a. The beneficiary shall have
the right to withdraw assets from the trust account at any time, without notice
to the grantor, subject only to written notice from the beneficiary to the
trustee;
b. No other statement or
document is required to be presented in order to withdraw assets, except that
the beneficiary may be required to acknowledge receipt of withdrawn assets.;
c. It is not subject to any
conditions or qualifications outside of the trust agreement; and
d. It shall not contain
references to any other agreements or documents except as provided for under subdivision
9 subdivisions 11 and 12 of this subsection;.
e. At least 30 days, but
not more than 45 days, prior to termination of the trust account, written
notification of termination shall be delivered by the trustee to the
beneficiary; and
f. The trustee shall be
liable for its own negligence, willful misconduct or lack of good faith.
5. The trust agreement shall
be established for the sole benefit of the beneficiary.
6. The trust agreement shall
require the trustee to:
a. Receive assets and hold
all assets in a safe place;
b. Determine that all assets
are in such form that the beneficiary, or the trustee upon direction by the
beneficiary, may whenever necessary negotiate any such assets, without consent
or signature from the grantor or any other person or entity;
c. Furnish to the grantor and
the beneficiary a statement of all assets in the trust account upon its
inception and at intervals no less frequent than the end of each calendar
quarter;
d. Notify the grantor and the
beneficiary, within 10 days, of any deposits to or withdrawals from the trust
account;
e. Upon written demand of the
beneficiary, immediately take any and all steps necessary to transfer
absolutely and unequivocally all right, title and interest in the assets held
in the trust account to the beneficiary and deliver physical custody of such
assets to such beneficiary; and
f. Allow no substitutions or
withdrawals of assets from the trust account, except on written instructions
from the beneficiary, except that the trustee may, without the consent of but
with notice to the beneficiary, upon call or maturity of any trust asset,
withdraw such asset upon condition that the proceeds are paid into the trust
account.
7. The trust agreement
shall provide that at least 30 days, but not more than 45 days, prior to
termination of the trust account, written notification of termination shall be
delivered by the trustee to the beneficiary.
8. The trust agreement
shall be made subject to and governed by the laws of the state in which the
trust is established.
8. 9. The trust
agreement shall prohibit invasion of the trust corpus for the purpose of paying
compensation to, or reimbursing the expenses of, the trustee. In order for a
letter of credit to qualify as an asset of the trust, the trustee shall have
the right and the obligation pursuant to the deed of trust or some other binding
agreement (as duly approved by the commission), to immediately draw down the
full amount of the letter of credit and hold the proceeds in trust for the
beneficiaries of the trust if the letter of credit will otherwise expire
without being renewed or replaced.
9. The reinsurance
agreement entered into in conjunction with such a trust agreement may, but need
not, contain provisions required by subdivision C 1 b of this section, so long
as these required conditions are included in the trust agreement.
10. The trust agreement
shall provide that the trustee shall be liable for its negligence, willful
misconduct, or lack of good faith. The failure of the trustee to draw against
the letter of credit in circumstances where such draw would be required shall be
deemed to be negligence or willful misconduct, or both.
11. Notwithstanding other
provisions of this chapter, when a trust agreement is established in
conjunction with a reinsurance agreement covering risks other than life,
annuities, and accident and health, where it is customary practice to provide a
trust agreement for a specific purpose, the trust agreement may provide that
the ceding insurer shall undertake to use and apply amounts drawn upon the
trust account, without diminution because of the insolvency of the ceding
insurer or the assuming insurer, only for the following purposes:
a. To pay or reimburse the
ceding insurer for the assuming insurer's share under the specific reinsurance
agreement regarding any losses and allocated loss expenses paid by the ceding
insurer, but not recovered from the assuming insurer, or for unearned premiums
due to the ceding insurer if not otherwise paid by the assuming insurer;
b. To make payment to the
assuming insurer of any amounts held in the trust account that exceed 102% of
the actual amount required to fund the assuming insurer's obligations under the
specific reinsurance agreement; or
c. Where the ceding
insurer has received notification of termination of the trust account and where
the assuming insurer's entire obligations under the specific reinsurance
agreement remain unliquidated and undischarged 10 days prior to the termination
date, to withdraw amounts equal to the obligations and deposit those amounts in
a separate account, in the name of the ceding insurer in any qualified United
States financial institution as defined in § 38.2-1316.1 of the Act apart
from its general assets, in trust for such uses and purposes specified in
subdivisions 11 a and b of this subsection as may remain executory after such
withdrawal and for any period after the termination date.
12. Notwithstanding other
provisions of this chapter, when a trust agreement is established to meet the
requirements of 14VAC5-300-110 in conjunction with a reinsurance agreement
covering life, annuities or accident and health risks, where it is customary to
provide a trust agreement for a specific purpose, the trust agreement may
provide that the ceding insurer shall undertake to use and apply amounts drawn
upon the trust account, without diminution because of the insolvency of the
ceding insurer or the assuming insurer, only for the following purposes:
a. To pay or reimburse the
ceding insurer for:
(1) The assuming insurer's
share under the specific reinsurance agreement of premiums returned, but not
yet recovered from the assuming insurer, to the owners of policies reinsured
under the reinsurance agreement on account of cancellations of the policies;
and
(2) The assuming insurer's
share under the specific reinsurance agreement of surrenders and benefits or
losses paid by the ceding insurer, but not yet recovered from the assuming
insurer, under the terms and provisions of the policies reinsured under the reinsurance
agreement;
b. To pay to the assuming
insurer amounts held in the trust account in excess of the amount necessary to
secure the credit or reduction from liability for reinsurance taken by the
ceding insurer; or
c. Where the ceding
insurer has received notification of termination of the trust and where the
assuming insurer's entire obligations under the specific reinsurance agreement
remain unliquidated and undischarged 10 days prior to the termination date, to
withdraw amounts equal to the assuming insurer's share of liabilities, to the
extent that the liabilities have not yet been funded by the assuming insurer,
and deposit those amounts in a separate account, in the name of the ceding
insurer in any qualified United States financial institution apart from its
general assets, in trust for the uses and purposes specified in subdivisions 12
a and b of this subsection as may remain executory after withdrawal and for any
period after the termination date.
13. Either the reinsurance
agreement or the trust agreement shall stipulate that assets deposited in the
trust account shall be valued according to their current fair market value and
shall consist only of cash in United States dollars, certificates of deposit
issued by a United States bank and payable in United States dollars, and
investments permitted by the Code of Virginia or any combination of the above,
provided investments in or issued by an entity controlling, controlled by or
under common control with either the grantor or the beneficiary of the trust
shall not exceed 5.0% of total investments. The agreement may further specify
the types of investments to be deposited. If the reinsurance agreement covers
life, annuities or accident and health risks, then the provisions required by
this subdivision shall be included in the reinsurance agreement.
B. When a ceding insurer
seeks credit pursuant to subdivision 2 of § 38.2-1316.4 of the Act for
reinsurance transactions secured by funds held in trust, the underlying trust
agreement may contain the following provisions subject to all conditions set
forth:
1. The trust agreement may
provide that the trustee may resign upon delivery of a written notice of
resignation, effective not less than 90 days after receipt by the beneficiary
and grantor of the notice and that the trustee may be removed by the grantor by
delivery to the trustee and the beneficiary of a written notice of removal,
effective not less than 90 days after receipt by the trustee and the
beneficiary of the notice, provided that no such resignation or removal shall
be effective until a successor trustee has been duly appointed and approved by
the beneficiary and the grantor and all assets in the trust have been duly
transferred to the new trustee.
2. The grantor may have the
full and unqualified right to vote any shares of stock in the trust account and
to receive from time to time payments of any dividends or interest upon any
shares of stock or obligations included in the trust account. Any such interest
or dividends shall be either forwarded promptly upon receipt to the grantor or
deposited in a separate account established in the grantor's name.
3. The trustee may be given
authority to invest, and accept substitutes of, any funds in the account,
provided that no investment or substitution shall be made without prior
approval of the beneficiary, unless the trust agreement specifies categories of
investments acceptable to the beneficiary and authorizes the trustee to invest
such funds and to accept such substitutions which the trustee determines are at
least equal in current fair market value to the assets withdrawn and
that are consistent with the restrictions in subdivision C 1 b of this section.
4. The trust agreement may
provide that the beneficiary may at any time designate a party to which all or
part of the trust assets are to be transferred. Such transfer may be
conditioned upon the trustee receiving, prior to or simultaneously, other
specified assets.
5. The trust agreement may
provide that, upon termination of the trust account, all assets not previously
withdrawn by the beneficiary shall, with written approval by the beneficiary,
be delivered over to the grantor.
6. Notwithstanding other
provisions of this chapter, when a trust agreement is established in
conjunction with a reinsurance agreement covering risks other than life,
annuities and accident and health, where it is customary practice to provide a
trust agreement for a specific purpose, such a trust agreement may,
notwithstanding any other conditions in this chapter, provide that the ceding
insurer shall undertake to use and apply amounts drawn upon the trust account,
without diminution because of the insolvency of the ceding insurer or the
assuming insurer, for the following purposes:
a. To pay or reimburse the
ceding insurer for the assuming insurer's share under the specific reinsurance
agreement regarding any losses and allocated loss expenses paid by the ceding
insurer, but not recovered from the assuming insurer, or for unearned premiums
due to the ceding insurer if not otherwise paid by the assuming insurer;
b. To make payment to the
assuming insurer of any amounts held in the trust account that exceed 102% of
the actual amount required to fund the assuming insurer's obligations under the
specific reinsurance agreement; or
c. Where the ceding
insurer has received notification of termination of the trust account and where
the assuming insurer's entire obligations under the specific reinsurance
agreement remain unliquidated and undischarged 10 days prior to such
termination date, to withdraw amounts equal to such obligations and deposit
such amounts in a separate account, in the name of the ceding insurer in any
qualified United States financial institution as defined in this chapter apart
from its general assets, in trust for such uses and purposes specified in
subdivisions a and b above as may remain executory after such withdrawal and
for any period after such termination date.
C. Conditions applicable to
reinsurance agreements entered into by a ceding insurer which takes credit
pursuant to subdivision 2 of § 38.2-1316.4 of the Act for reinsurance
transactions secured by funds held in trust.
1. The reinsurance agreement
may contain provisions that:
a. Require the assuming
insurer to enter into a trust agreement and to establish a trust account for
the benefit of the ceding insurer, and specifying what such agreement is to
cover.;
b. Stipulate that assets
deposited in the trust account shall be valued according to their current fair
market value and shall consist only of cash (United States legal tender),
certificates of deposit (issued by a United States bank and payable in United
States legal tender), and investments of the types permitted by § 38.2-1316.4
of the Code of Virginia or any combination of the above, provided that such
investments are issued by an institution that is not the parent, subsidiary, or
affiliate of either the grantor or the beneficiary and, provided, further, that
the amount of credit taken or reduction from liability allowed shall not, as a
result of this subdivision, exceed the amount of credit or reduction from
liability allowed a domestic insurer pursuant to Title 38.2. The reinsurance
agreement may further specify the types of investments to be deposited. Where a
trust agreement is entered into in conjunction with a reinsurance agreement
covering risks other than life, annuities and accident and health, then such
trust agreement may contain the provisions required by this subdivision in lieu
of including such provisions in the reinsurance agreement.
c. b. Require
the assuming insurer, prior to depositing assets with the trustee, to execute
assignments, or endorsements in blank, or to transfer
legal title to the trustee of all shares, obligations or any other assets
requiring assignments, in order that the ceding insurer, or the trustee upon
the direction of the ceding insurer, may whenever necessary negotiate any such
assets without consent or signature from the assuming insurer or any other
entity.;
d. c. Require
that all settlements of account between the ceding insurer and the assuming
insurer be made in cash or its equivalent.; and
e. d. Stipulate
that the assuming insurer and the ceding insurer agree that the assets in the
trust account, established pursuant to the provisions of the reinsurance
agreement, may be withdrawn by the ceding insurer at any time, notwithstanding
any other provisions in the reinsurance agreement, and shall be utilized and
applied by the ceding insurer or its successors in interest by operation of
law, including without limitations any liquidator, rehabilitator, receiver or
conservator of such company, without diminution because of insolvency on the
part of the ceding insurer or the assuming insurer, only for the following
purposes:
(1) To pay or
reimburse the ceding insurer for the:
(a) The assuming
insurer's share under the specific reinsurance agreement of premiums
returned, but not yet recovered from the assuming insurer, to the owners
of policies reinsured under the reinsurance agreement because of cancellations
of such policies;
(2) To reimburse the
ceding insurer for the (b) The assuming insurer's share of
surrenders and benefits or losses paid by the ceding insurer pursuant to the
provisions of the policies reinsured under the reinsurance agreement; and
(3) To fund an account
with the ceding insurer in an amount at least equal to the deduction for
reinsurance ceded, from the ceding insurer liabilities for policies ceded under
the agreement, which account shall include, but not be limited to, amounts for
policy reserves, claims and losses incurred (including losses incurred but not
reported), loss adjustment expenses, and unearned premium reserves; and
(4) To any (c) Any
other amounts necessary to secure the credit or reduction from liability for
reinsurance taken by the ceding insurer claims are due under the
reinsurance agreement.; or
(2) To make payment to the
assuming insurer of amounts held in the trust account in excess of the amount
necessary to secure the credit or reduction from liability for reinsurance
taken by the ceding insurer.
2. The reinsurance
agreement also may contain provisions that:
f. a. Give the
assuming insurer the right to seek approval (which shall not be unreasonably or
arbitrarily withheld) from the ceding insurer to withdraw from the trust
account all or any part of the trust assets and transfer such assets to the
assuming insurer, provided:
(1) The assuming insurer
shall, at the time of such withdrawal, replace the withdrawn assets with other
qualified assets having a current fair market value equal to the market
value of the assets withdrawn so as to maintain at all times the deposit in the
required amount, or
(2) After such withdrawal and
transfer, the current fair market value of the trust account is no less
than 102% of the required amount.
g. b. Provide
for: (1) The the return of any amount withdrawn in excess of the
actual amounts required for subdivisions C 1 e (1), (2), and (3), or in the
case of subdivision C 1 e (4), any amounts that are subsequently determined not
to be due and; (2) Interest subdivision C 1 d of this section, and for
interest payments, at a rate not in excess of the prime rate of interest,
on the such amounts held pursuant to subdivision C 1 e (3);.
h. c. Permit
the award by any arbitration panel or court of competent jurisdiction of:
(1) Interest at a rate
different from that provided in subdivision g (2) above, 2 b of this
subsection;
(2) Court or arbitration
costs,;
(3) Attorney's fees,;
and
(4) Any other reasonable
expenses.
2. D. With
regard to financial reporting, a trust agreement may be used to reduce any
liability for reinsurance ceded to an unauthorized assuming insurer in
financial statements required to be filed with the Commission commission
in compliance with the provisions of this chapter when established on or before
the date of filing of the financial statement of the ceding insurer. Further,
the reduction for the existence of an acceptable trust account may be up to the
current fair market value of acceptable assets available to be withdrawn from
the trust account at that time, but such reduction shall be no greater than the
specific obligations, as defined in this chapter (14VAC5-300-10 et seq.),
under the reinsurance agreement that the trust account was established to
secure;.
3. E. With
regard to existing agreements and notwithstanding the effective date of this
chapter [effective March 1, 1992], any trust agreement or underlying
reinsurance agreement in existence prior to January 1, 1992 July 1,
2012, will continue to be acceptable until the first occurring
anniversary or renewal date after December 31, 1991 January 1, 2013,
at which time the agreements will have to be in full compliance with this
chapter for the trust agreement to be acceptable; and.
4. F. The
failure of any trust agreement to specifically identify the beneficiary as
defined in 14VAC5-300-40 of this chapter shall not be construed to
affect any actions or rights which the Commission commission may
take or possess pursuant to the provisions of the laws of this Commonwealth.
14VAC5-300-130. Letters of
credit qualifying for § 38.2-1316.4 credit under 14VAC5-300-110.
A. The letter of credit must
shall be clean, irrevocable, unconditional and issued or confirmed by
a qualified United States financial institution as defined in
§ 38.2-1316.1 of the Act. The letter of credit shall contain an issue date
and expiration date and shall stipulate that the beneficiary need only draw a
sight draft under the letter of credit and present it to obtain funds and that
no other document need be presented. The letter of credit also shall indicate
that it is not subject to any condition or qualifications outside of the letter
of credit. In addition, the letter of credit itself shall not contain reference
to any other agreements, documents or entities, except as provided in
subdivision H 1 of this section. As used in this section,
"beneficiary" means the domestic insurer for whose benefit the letter
of credit has been established and any successor of the beneficiary by operation
of law. If a court of law appoints a successor in interest to the named
beneficiary, then the named beneficiary includes and is limited to the court
appointed domiciliary receiver (including conservator, rehabilitator or
liquidator). It cannot be conditioned on the delivery of any other
documents or materials. It shall contain an issue date and date of expiration
and shall stipulate that the beneficiary need only draw a sight draft under the
letter of credit and present it to obtain funds and that no other document need
be presented.
B. The letter of credit
must be irrevocable. It must provide that it cannot be modified, except for an
increase in face amount, or revoked without the consent of the beneficiary,
once the beneficiary is established.
C. The letter of credit
must be unconditional. It shall indicate specifically that it is not subject to
any condition or qualifications outside of the letter of credit. In addition,
the letter of credit itself shall not contain preference to any other
agreements, documents or entities, except as provided in subdivision K 1 of
this section.
D. B. The
heading of the letter of credit may include a boxed section which contains the
name of the applicant and other appropriate notations to provide a reference
for such letter of credit. The boxed section shall be clearly marked to
indicate that such information is for internal identification purposes only.
E. C. The
letter of credit shall contain a statement to the effect that the obligation of
the qualified United States financial institution under the letter of credit is
in no way contingent upon reimbursement with respect thereto.
F. D. The term
of the letter of credit shall be for at least one year and shall contain an
"evergreen clause" which automatically renews the letter of credit
for a time certain should the issuer of the same fail to affirmatively signify
its intention to non-renew upon expiry and which that prevents the
expiration of the letter of credit without due notice from the issuer. The
"evergreen clause" shall provide for a period of no less than 30 days
notice prior to expiry expiration date for nonrenewal.
G. E. The
letter of credit shall state whether it is subject to and governed by the laws
of this Commonwealth, the ceding insurer's state of domicile or the Uniform
Customs and Practice for Documentary Credits of the International Chamber of
Commerce (Publication 500) Publication 600 (UCP 600) or International
Standby Practices ISP98 of the International Chamber of Commerce, Publication
590, or any successor publication, and all drafts drawn thereunder shall be
presentable at an office in the United States of a qualified United States
financial institution.
H. F. If the
letter of credit is made subject to the Uniform Customs and Practice for
Documentary Credits of the International Chamber of Commerce (Publication 500),
or any successor publication, then the letter of credit shall specifically
address and make provision provide for an extension of time to
draw against the letter of credit in the event that one or more of the
occurrences specified in Article 17 of Publication 500, or any successor
publication, occur.
I. The letter of credit
shall be issued or confirmed by a qualified United States financial institution
authorized to issue letters of credit, pursuant to the applicable definitions
contained within § 38.2-1316.1 of the Act.
J. When a G. If
the letter of credit, is issued by a financial institution not
recognized by the Act and this chapter as a qualified United States financial
institution authorized to issue letters of credit, is subsequently
confirmed by other than a qualified United States financial
institution, as described in subsection I A of this
section, then the following additional requirements shall be met:
1. The issuing financial
institution shall formally designate the confirming qualified United States
financial institution as its agent for the receipt and payment of the drafts;
and
2. The "evergreen
clause" shall provide for a period of no less than 30 days' days
notice prior to expiry the expiration date for nonrenewal.
K. H.
Reinsurance agreement provisions.
1. The reinsurance agreement
in conjunction with which the letter of credit is obtained may contain provisions
which:
a. Require the assuming
insurer to provide letters of credit to the ceding insurer and specify what
they are to cover.;
b. Stipulate that the
assuming insurer and ceding insurer agree that the letter of credit provided by
the assuming insurer pursuant to the provisions of the reinsurance agreement
may be drawn upon at any time, notwithstanding any other provision provisions
in such the agreement, and shall be utilized by the ceding
insurer or its successors in interest only for one or more of the following
reasons:
(1) To pay or
reimburse the ceding insurer for the:
(a) The assuming
insurer's share under the specific reinsurance agreement of premiums
returned, but not yet recovered from the assuming insurers, to the
owners of policies reinsured under the reinsurance agreement on account of
cancellations of such policies;
(2) To reimburse the
ceding insurer for the (b) The assuming insurer's share under the
specific reinsurance agreement, of surrenders and benefits or losses paid
by the ceding insurer, but not yet recovered from the assuming insurers,
under the terms and provisions of the policies reinsured under the reinsurance
agreement; and
(3) To fund an account
with the ceding insurer in an amount at least equal to the deduction, for
reinsurance ceded, from the ceding insurer's liabilities for policies ceded
under the agreement (such amount shall include, but not be limited to, amounts
for policy reserves, claims and losses incurred and unearned premium reserves);
and
(4) To pay any (c)
Any other amounts necessary to secure the credit or reduction from
liability for reinsurance taken by the ceding insurer claims are due
under the reinsurance agreement.;
(2) Where the letter of
credit will expire without renewal or be reduced or replaced by a letter of
credit for a reduced amount and where the assuming insurer's entire obligations
under the reinsurance agreement remain unliquidated and undischarged 10 days
prior to the termination date, to withdraw amounts equal to the assuming
insurer's share of the liabilities, to the extent that the liabilities have not
yet been funded by the assuming insurer and exceed the amount of any reduced or
replacement letter of credit, and deposit those amounts in a separate account
in the name of the ceding insurer in a qualified United States financial
institution apart from its general assets, in trust for such uses and purposes
specified in subdivision 1 b (1) of this subsection as may remain after withdrawal
and for any period after the termination date.
c. All of the foregoing
provisions of subdivision 1 of this subsection should be applied without
diminution because of insolvency on the part of the ceding insurer or assuming
insurer.
2. Nothing contained in
subdivision 1 of this subsection shall preclude the ceding insurer and assuming
insurer from providing for:
a. An interest payment, at a
rate not in excess of the prime rate of interest, on the amounts held pursuant
to subdivision 1 b (3) of this subsection; and/or or
b. The return of any amounts
drawn down on the letters of credit in excess of the actual amounts required
for the above or, in the case of subdivision 1 b (4) of this subsection,
any amounts that are subsequently determined not to be due.
3. When a letter of credit
is obtained in conjunction with a reinsurance agreement covering risks other
than life, annuities and health, where it is customary practice to provide a
letter of credit for a specific purpose, then such reinsurance agreement may in
lieu of subdivision 1 b of this subsection, require that the parties enter into
a "Trust Agreement" which may be incorporated into the reinsurance
agreement or be a separate document.
L. A letter of credit may
not be used to reduce any liability for reinsurance ceded to an unauthorized
assuming insurer in financial statements required to be filed with the
Commission unless an acceptable letter of credit with the filing ceding insurer
as beneficiary has been issued on or before the date of filing of the financial
statement.
14VAC5-300-140. Other
security.
The Commission commission
may allow credit pursuant to subdivision 2 d of § 38.2-1316.4 of the Act for
unencumbered funds withheld by the ceding insurer in the United States subject
to withdrawal solely by the ceding insurer and under its exclusive control.
14VAC5-300-150. Reinsurance
contract.
A. Credit will not be
granted, nor an asset or reduction from liability allowed, to a ceding
insurer for reinsurance effected with assuming insurers meeting the
requirements of 14VAC5-300-60, 14VAC5-300-70, 14VAC5-300-80, 14VAC5-300-90, and
14VAC5-300-110 of this chapter 14VAC5-300-95, or 14VAC5-300-100 or
otherwise in compliance with § 38.2-1316.2 of the Act after the
adoption of this chapter (14VAC5-300-10 et seq.) unless the reinsurance
agreement:
1. Includes a proper
insolvency clauses pursuant to subdivisions A 1 through A 3 of § 38.2-1316.5
of the Act; and clause that stipulates that reinsurance is payable
directly to the liquidator or successor without diminution regardless of the
status of the ceding company;
2. Includes a provision pursuant to
subdivision A 4 of § 38.2-1316.5 of the Act § 38.2-1316.2
whereby the assuming insurer, if an unauthorized assuming insurer entering
into a transaction with a domestic insurer, has submitted to the
jurisdiction of an alternative dispute resolution panel or court of competent
jurisdiction within the United States, has agreed to comply with all
requirements necessary to give such court or panel jurisdiction, has designated
an agent upon whom service of process may be effected, and has agreed to abide
by the final decisions of such court or panel.; and
3. Includes a proper
reinsurance intermediary clause, if applicable, that stipulates that the credit
risk for the intermediary is carried by the assuming insurer.
B. If the assuming
insurer is not licensed, accredited, or certified to transact insurance or
reinsurance in this Commonwealth, the credit permitted pursuant to § 38.2-1316.2
A 3, A 4, and E shall not be allowed unless the assuming insurer agrees in the
reinsurance agreements:
1. a. That in the event of
the failure of the assuming insurer to perform its obligations under the terms
of the reinsurance agreement, the assuming insurer, at the request of the ceding
insurer, shall submit to the jurisdiction of any court of competent
jurisdiction in any state of the United States, will comply with all
requirements necessary to give the court jurisdiction, and will abide by the
final decision of the court or of any appellate court in the event of an
appeal; and
b. To designate the
commission or a designated attorney as its true and lawful attorney upon whom
may be served any lawful process in any action, suit, or proceeding instituted
by or on behalf of the ceding insurer.
2. This subsection is not
intended to conflict with or override the obligation of the parties to a
reinsurance agreement to arbitrate their disputes, if this obligation is
created in the agreement.
C. If the assuming
insurer does not meet the requirements of § 38.2-1316.2 A 1, 2, or 3, the
credit permitted by § 38.2-1316.2 A 4 or B shall not be allowed unless the
assuming insurer agrees in the trust agreements to the following conditions:
1. Notwithstanding any
other provisions in the trust instrument, if the trust fund is inadequate
because it contains an amount less than the amount required by
§ 38.2-1316.2 A 4, or if the grantor of the trust has been declared
insolvent or placed into receivership, rehabilitation, liquidation, or similar
proceedings under the laws of its state or country of domicile, the trustee
shall comply with an order of the commissioner with regulatory oversight over
the trust or with an order of a court of competent jurisdiction directing the
trustee to transfer to the commissioner with regulatory oversight all of the
assets of the trust fund.
2. The assets shall be
distributed by and claims shall be filed with and valued by the commissioner
with regulatory oversight in accordance with the laws of the state in which the
trust is domiciled that are applicable to the liquidation of domestic insurance
companies.
3. If the commissioner
with regulatory oversight determines that the assets of the trust fund or any
part thereof are not necessary to satisfy the claims of the United States
ceding insurers of the grantor of the trust, the assets or part thereof shall
be returned by the commissioner with regulatory oversight to the trustee for
distribution in accordance with the trust agreement.
4. The grantor shall waive
any right otherwise available to it under United States law that is
inconsistent with this provision.
14VAC5-300-160. Contracts
affected.
All new and renewal
reinsurance transactions entered into after December 31, 1991 2012,
shall conform to the requirements of the Act and this chapter if credit is to
be given to the ceding insurer for such reinsurance. Unless otherwise
provided in this chapter, credits for cessions under reinsurance agreements in
force on July 1, 2012, or commenced within six months thereafter, shall be
governed by the requirements for such credits in effect on June 30, 2012.
14VAC5-300-170.
Severability.
If any provision in this
chapter or the application thereof to any person or circumstance is for any
reason held to be invalid, the remainder of the chapter and the application of
the provision to other persons or circumstances shall not be affected thereby.
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 (14VAC5-300)
Certificate of Assuming Insurer - Year Ended
December 31, 2012, R05 [ (3/12) (09/12) ] (eff. 01/13).
Certificate of Certified Reinsurer - Year Ended
December 31, 2012, R15(03/12) (eff. 01/13).
Schedule S, Part 1 - Part 6, 1994-2011 National
Association of Insurance Commissioners (eff. 01/13).
Schedule F, Part 1 - Part 8, 1994-2011 National
Association of Insurance Commissioners (eff. 01/13).
Form CR-F - Part 1 - Part 2, 2011 National
Association of Insurance Commissioners (eff. 01/13).
Form CR-S - Part 1 - Part 3, 2011 National
Association of Insurance Commissioners (eff. 01/13).
DOCUMENTS INCORPORATED BY
REFERENCE (14VAC5-300-9999)
NAIC Policy Statement on Financial Regulation
Standards, 2012, National Association of Insurance Commissioners.
NAIC Annual Statement
Instructions, 2011 Life Annual Statement Instructions, September 15, 2011,
National Association of Insurance Commissioners and the Center for Insurance
Policy and Research.
NAIC Annual Statement
Instructions, 2011 Property/Casualty Annual Statement Instructions, September
15, 2011, National Association of Insurance Commissioners and the Center for
Insurance Policy and Research.
NAIC Accounting Practices
& Procedures Manual, Volumes I, II, III, March 2011, National Association
of Insurance Commissioners.
ICC Uniform Customs and
Practice for Documentary Credits (UCP 500), 1993, International Chamber of
Commerce.
ICC Uniform Customs and
Practice for Documentary Credits (UCP 600), 2007, International Chamber of
Commerce.
International Standby
Practices ISP98, 1999, The Institute of International Banking Law and Practice,
Inc.
Purposes and Procedures
Manual of the NAIC Securities Valuation Office - Effective for Statements
Ending December 31, 2011, Volume/Issue 11/01, 2011, National Association of
Insurance Commissioners.
VA.R. Doc. No. R12-3115; Filed
September 24, 2012, 5:06 p.m.
w –––––––––––––––––– w
TITLE 16.
LABOR AND EMPLOYMENT
SAFETY AND HEALTH CODES BOARD
Final Regulation
REGISTRAR'S NOTICE: The following regulatory action is exempt
from the Administrative Process Act in accordance with § 2.2-4006 A 4 c of
the Code of Virginia, which excludes regulations that are necessary to meet the
requirements of federal law or regulations provided such regulations do not
differ materially from those required by federal law or regulation. The Safety
and Health Codes Board will receive, consider, and respond to petitions by any
interested person at any time with respect to reconsideration or revision.
Title of Regulation:
16VAC25-90. Federal Identical General Industry Standards (amending
16VAC25-90-1910.1030).
Statutory Authority:
§ 40.1-22 of the Code of Virginia.
Effective Date: January
1, 2013.
Agency Contact: John J.
Crisanti, Planning and Evaluation Manager, Department of Labor and Industry,
Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804)
786-4300, FAX (804) 786-8418, TTY (804) 786-2376, or email
john.crisanti@doli.virginia.gov.
Summary:
Federal OSHA has made a
technical amendment to its Bloodborne Pathogens Standard by moving the
paragraph on sharps injury log requirements from paragraph (i), entitled
"Dates," to paragraph (h), entitled "Recordkeeping." This
action adopts this amendment into Virginia's general industry standards.
Note on Incorporation by
Reference: Pursuant to § 2.2-4103
of the Code of Virginia, 29 CFR Part 1910 (Occupational Safety and Health
Standards) is declared a document generally available to the public and
appropriate for incorporation by reference. For this reason this document will
not be printed in the Virginia Register of Regulations. A copy of this document
is available for inspection at the Department of Labor and Industry, Main
Street Centre, 600 East Main Street, Richmond, Virginia 23219, and in the
office of the Registrar of Regulations, General Assembly Building, 9th and
Broad Streets, Richmond, Virginia 23219.
Statement of Final Agency
Action: On September 12, 2012, the Safety and Health Codes Board adopted
the Corrections and Technical Amendment to federal OSHA's final rule for the
Bloodborne Pathogens Standard, § 1910.1030, as published in 77 FR 19933
through 77 FR 19934 on April 3, 2012, with an effective date of January 1,
2013.
Federal Terms and State
Equivalents: When the regulations as set forth in the revised final rule
for Occupational Safety and Health Standards is applied to the Commissioner of
the Department of Labor and Industry or to Virginia employers, the following
federal terms shall be considered to read as follows:
|
Federal
Terms
|
|
VOSH
Equivalent
|
|
29
CFR
|
|
VOSH
Standard
|
|
Assistant
Secretary
|
|
Commissioner
of Labor and Industry
|
|
Agency
|
|
Department
|
|
April
3, 2012
|
|
January
1, 2013
|
VA.R. Doc. No. R13-3408; Filed
September 28, 2012, 2:41 p.m.
Final
Regulation
REGISTRAR'S NOTICE: The following regulatory action is exempt
from the Administrative Process Act in accordance with § 2.2-4006 A 4 c of
the Code of Virginia, which excludes regulations that are necessary to meet the
requirements of federal law or regulations provided such regulations do not
differ materially from those required by federal law or regulation. The Safety
and Health Codes Board will receive, consider, and respond to petitions by any
interested person at any time with respect to reconsideration or revision.
Titles of Regulations: 16VAC25-90. Federal Identical General
Industry Standards (amending 16VAC25-90-1910.217, Appendix C to
16VAC25-90-1910.134).
16VAC25-175. Federal Identical Construction Industry Standards (adding Appendix A to Subpart L of Part 1926).
Statutory Authority: § 40.1-22
of the Code of Virginia.
Effective Date: January
1, 2013.
Agency Contact: John J.
Crisanti, Planning and Evaluation Manager, Department of Labor and Industry,
Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804)
786-4300, FAX (804) 786-8418, TTY (804) 786-2376, or email john.crisanti@doli.virginia.gov.
Summary:
Federal OSHA has corrected
the medical evaluation questionnaire in Appendix C of its Respiratory
Protection Standard, § 1910.134, by removing the term
"fits" in a question. Also, it has corrected its Mechanical Power Presses
Standard for General Industry, § 1910.217, by restoring requirements that were removed inadvertently
from the regulatory text. The final revision to Subpart L of Scaffold Standards
for Construction, Part 1926, corrects a cross reference made in two paragraphs
in Appendix A. This action incorporates these changes into the Virginia general
industry standards and construction industry standards.
Note on Incorporation by
Reference: Pursuant to § 2.2-4103
of the Code of Virginia, 29 CFR Part 1910 (Occupational Safety and Health
Standards) and 29 CFR Part 1926 (Construction Industry Standards) are declared
documents generally available to the public and appropriate for incorporation
by reference. For this reason these documents will not be printed in the
Virginia Register of Regulations. A copy of each document is available for
inspection at the Department of Labor and Industry, Main Street Centre, 600
East Main Street, Richmond, Virginia 23219, and in the office of the Registrar
of Regulations, General Assembly Building, 9th and Broad Streets, Richmond,
Virginia 23219.
Statement of Final Agency
Action: On September 12, 2012, the Safety and Health Codes Board adopted
federal OSHA's Corrections and Technical Amendments to Multiple Standards as
published in 77 FR 46948 through 77 FR 46950 on August 7, 2012, with an
effective date of January 1, 2013.
Federal Terms and State
Equivalents: When the regulations as set forth in the revised final rule
for Occupational Safety and Health Standards and Construction Industry
Standards are applied to the Commissioner of the Department of Labor and
Industry or to Virginia employers, the following federal terms shall be
considered to read as follows:
|
Federal
Terms
|
|
VOSH
Equivalent
|
|
29
CFR
|
|
VOSH
Standard
|
|
Assistant
Secretary
|
|
Commissioner
of Labor and Industry
|
|
Agency
|
|
Department
|
|
August
7, 2012
|
|
January
1, 2013
|
VA.R. Doc. No. R13-3409; Filed
September 28, 2012, 2:43 p.m.
Final
Regulation
REGISTRAR'S NOTICE: The following regulatory action is exempt
from the Administrative Process Act in accordance with § 2.2-4006 A 4 c of
the Code of Virginia, which excludes regulations that are necessary to meet the
requirements of federal law or regulations provided such regulations do not
differ materially from those required by federal law or regulation. The Safety
and Health Codes Board will receive, consider, and respond to petitions by any
interested person at any time with respect to reconsideration or revision.
Titles of Regulations: 16VAC25-90. Federal Identical General
Industry Standards (amending 16VAC25-90-1910.106,
16VAC25-90-1910.107, 16VAC25-90-1910.119, 16VAC25-90-1910.120,
16VAC25-90-1910.123, 16VAC25-90-1910.124, 16VAC25-90-1910.125,
16VAC25-90-1910.252, 16VAC25-90-1910.1001, 16VAC25-90-1910.1003,
16VAC25-90-1910.1017, 16VAC25-90-1910.1018, 16VAC25-90-1910.1025,
16VAC25-90-1910.1026, 16VAC25-100-1910.1027, 16VAC25-90-1910.1028,
16VAC25-90-1910.1029, 16VAC25-90-1910.1043, 16VAC25-90-1910.1044,
16VAC25-90-1910.1045, 16VAC25-90-1910.1047, 16VAC25-90-1910.1048,
16VAC25-90-1910.1050, 16VAC25-90-1910.1051, 16VAC25-90-1910.1052,
16VAC25-90-1910.1200, 16VAC25-90-1910.1450).
16VAC25-100. Federal Identical Shipyard Employment Standards (amending 16VAC25-100-1915.1001,
16VAC25-100-1915.1026).
16VAC25-175. Federal Identical Construction Industry Standards (amending 16VAC25-175-1926.60,
16VAC25-175-1926.62, 16VAC25-175-1926.64, 16VAC25-175-1926.65,
16VAC25-175-1926.152, 16VAC25-175-1926.155, 16VAC25-175-1926.1101,
16VAC25-175-1926.1126, 16VAC25-175-1926.1127).
Statutory Authority: § 40.1-22
of the Code of Virginia.
Effective Date: January
1, 2013.
Agency Contact: John J.
Crisanti, Planning and Evaluation Manager, Department of Labor and Industry,
Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804)
786-4300, FAX (804) 786-8418, TTY (804) 786-2376, or email
john.crisanti@doli.virginia.gov.
Summary:
In this final rule,
federal OSHA has modified its Hazard Communication Standard (HAZCOM) in General
Industry, 29 CFR 1910; Construction, 29 CFR 1926; and Shipyard Employment, 29
CFR 1915, which contain hazard classification and communication provisions, to
be internally consistent and aligned with the United Nations' Globally
Harmonized System of Classification and Labeling of Chemicals (GHS) and enhance
worker safety and facilitate international trade. The modifications to the
standard include: revised criteria for classification of chemical hazards;
revised labeling provisions that include requirements for use of standardized
signal words, pictograms, hazard statements, and precautionary statements; a
specified format for safety data sheets; and related revisions to definitions
of terms used in the standard and requirements for employee training on labels
and safety data sheets.
Federal OSHA has also
modified provisions of other standards, including standards for flammable and
combustible liquids for both General Industry and Construction, §§ 1910.106 and
1926.152, respectively, to align the requirements of the standards with the GHS
hazard categories for flammable liquids.
Modifications to the
Process Safety Management of Highly Hazardous Chemicals standard, § 1910.119,
will ensure that the scope of the standard is not changed by the revisions to
the HAZCOM. In addition, modifications have been made to most of OSHA's
substance-specific health standards to ensure that requirements for signs and
labels and safety data sheets (SDSs) are consistent with the modified HAZCOM.
This action incorporates
these changes into the Virginia standards for general industry, construction,
and shipyard employment. Like federal OSHA, VOSH is seeking to use the extended
phase-in period for this final rule with the same federal date schedule for
implementation so that the additional time granted to manufacturers,
distributors, and users of chemicals will serve to reduce the transitional
costs associated with this rule.
Note on Incorporation by
Reference: Pursuant to § 2.2-4103
of the Code of Virginia, 29 CFR Part 1910 (Occupational Safety and Health
Standards), 29 CFR 1915 (Shipyard Employment Standards), and 29 CFR Part 1926
(Construction Industry Standards) are declared documents generally available to
the public and appropriate for incorporation by reference. For this reason
these documents will not be printed in the Virginia Register of Regulations. A
copy of each document is available for inspection at the Department of Labor
and Industry, Main Street Centre, 600 East Main Street, Richmond, Virginia
23219, and in the office of the Registrar of Regulations, General Assembly
Building, 9th and Broad Streets, Richmond, Virginia 23219.
Statement of Final Agency
Action: On September 12, 2012, the Safety and Health Codes Board adopted
federal OSHA's Final Rule for the Hazard Communication Standard, § 1910.1200,
and Other Related Standards in Parts 1910, 1915, and 1926 with the exception of
§ 1910.6 (Incroporation by Reference), as published in 77 FR 17573 through
77 FR 17896 on March 26, 2012, with an effective date of January 1, 2013.
Federal Terms and State
Equivalents: When the regulations as set forth in the revised final rule
for Occupational Safety and Health Standards, Shipyard Employment Standards,
and Construction Industry Standards are applied to the Commissioner of the
Department of Labor and Industry or to Virginia employers, the following
federal terms shall be considered to read as follows:
|
Federal
Terms
|
|
VOSH
Equivalent
|
|
29
CFR
|
|
VOSH
Standard
|
|
Assistant
Secretary
|
|
Commissioner
of Labor and Industry
|
|
Agency
|
|
Department
|
|
May
25, 2012
|
|
January
1, 2013
|
VA.R. Doc. No. R13-3411; Filed
September 28, 2012, 2:45 p.m.
Final
Regulation
REGISTRAR'S NOTICE: The following regulatory action is exempt
from the Administrative Process Act in accordance with § 2.2-4006 A 4 c of
the Code of Virginia, which excludes regulations that are necessary to meet the
requirements of federal law or regulations provided such regulations do not
differ materially from those required by federal law or regulation. The Safety
and Health Codes Board will receive, consider, and respond to petitions by any
interested person at any time with respect to reconsideration or revision.
Titles of Regulations:
16VAC25-90. Federal Identical General Industry Standards (amending
16VAC25-90-1910.135).
16VAC25-100. Federal
Identical Shipyard Employment Standards (amending
16VAC25-100-1915.155).
16VAC25-120. Federal
Identical Marine Terminals Standards (amending
16VAC25-120-1917.93).
16VAC25-130. Federal
Identical Longshoring Standards for Hazard Communications (amending
16VAC25-130-1918.103).
16VAC25-175. Federal
Identical Construction Industry Standards (adding
16VAC25-175-1926.100).
Statutory Authority: § 40.1-22
of the Code of Virginia.
Effective Date: January
1, 2013.
Agency Contact: John J.
Crisanti, Planning and Evaluation Manager, Department of Labor and Industry,
Main Street Centre, 600 East Street, Richmond, VA 23219, telephone (804)
786-4300, FAX (804) 786-8418, TTY (804) 786-2376, or email
john.crisanti@doli.virginia.gov.
Summary:
On June 22, 2012, federal
OSHA issued this Direct Final Rule to revise the personal protective equipment
(PPE) sections of its General Industry, Shipyard Employment, Longshoring, and
Marine Terminals standards regarding requirements for head protection, along
with an identical proposed rule, at 77 FR 37617. OSHA updated the references in
§§ 1910.135(b)(1), 1915.155(b)(1), 1917.93(b)(1), and 1918.103(b)(1) to
recognize the 2009 edition of the American National Standard for Industrial
Head Protection (ANSI Z89.1). The provisions in the 2009 edition permit
optional testing for helmets worn in the backwards position ("reverse
wearing"), optional testing for helmets at colder temperatures than
provided in previous editions, and optional testing for the high-visibility
coloring of helmets. Additionally, changes in the 2009 edition include: (1)
removing the definition of "cap" and "hat" and inserting
the definitions of "manufacturer" and "test plaque" in the
2009 edition; (2) permitting the testing facility to determine an appropriate
size of the headform if the manufacturer did not specify the size; (3)
requiring orientation of test samples in the normal wearing position when
conducting various test procedures; and (4) removing vertical guard rails from
the lists of necessary components for specified test equipment.
The 2009 revision to the
General Industry and Maritime Industry personal protective equipment standards,
however, did not address the construction standards requiring personal
protective equipment. Therefore, the construction standards at § 1926.100
(b) and (c) still required compliance with the older ANSI Z89.1-1969 and ANSI
Z89.2-1971, respectively. To bring the construction standard up to date and
ensure consistency across all of its standards, federal OSHA amended § 1926.100
to permit compliance with ANSI Z89.1-1969 and ANSI Z89.2-1971, which set forth
requirements regarding different types of helmets now addressed in ANSI Z89.1,
and replaced these outdated head protection references with the same three most
recent editions of ANSI Z89.1, referenced in the general industry and maritime
industry standards: ANSI Z89.1-1997, ANSI Z89.1-2003, or ANSI Z89.1-2009.
The 2009 edition defines
Type I and Type II helmets by the area of the head to which the helmets afford
protection, rather than by whether the helmets have a brim. It also renames the
classes of helmets tested for protection against electrical hazards (i.e.,
classes G, E, and C instead of A, B, and C), although it still bases helmet
classification on the capacity of the helmet to protect employees from
electrical hazards. In addition, the 2009 edition of ANSI Z89.1 eliminates a
fourth class of helmets used in firefighting. Many requirements included in the
1969 and 1971 editions, such as requirements specifying the type of material
manufacturers must use when making different components and specifications
regarding helmet accessories, have been eliminated in the 2009 edition. Most
importantly, ANSI revised the performance requirements and test methods. The
2009 edition includes fundamental updates such as more and different types of
test methods and the use of different equipment for performing these test
methods.
Additionally, on July 23,
2012, federal OSHA published a correction to the Direct Final Rule for Updating
OSHA Construction Standards Based on National Consensus Standards; Head
Protection at 77 FR 42988. In this correction to the Direct Final Rule, OSHA
corrected instruction number 16 of the Direct Final Rule (77 FR 37600) with
respect to the Construction Industry head protection standards to eliminate
confusion resulting from a drafting error in § 1926.100. The original
instruction number 16 stated that § 1926.100 was amended by adding paragraph
(b)(1) through (b)(3) and removed paragraph (c). The corrected instruction
number 16 states that § 1926.100 was amended by removing paragraph
(c) and revising paragraph (b).
This action incorporates
these changes into the Virginia general industry, shipyard employment, marine
terminals, longshoring, and construction industry standards.
Note on Incorporation by
Reference: Pursuant to § 2.2-4103
of the Code of Virginia, 29 CFR Part 1910 (Occupational Safety and Health
Standards), 29 CFR 1915 (Shipyard Employment Standards), 29 CFR 1917 (Marine
Terminals Standards), 29 CFR 1918 (Safety and Health Regulations for
Longshoring), and 29 CFR Part 1926 (Construction Industry Standards) are declared
documents generally available to the public and appropriate for incorporation
by reference. For this reason these documents will not be printed in the
Virginia Register of Regulations. A copy of each document is available for
inspection at the Department of Labor and Industry, Main Street Centre, 600
East Main Street, Richmond, Virginia 23219, and in the office of the Registrar
of Regulations, General Assembly Building, 9th and Broad Streets, Richmond,
Virginia 23219.
Statement of Final Agency
Action: On September 12, 2012, the Safety and Health Codes Board adopted
federal OSHA's Direct Final Rule for Updating OSHA Standards for Head
Protection and the Correction to the Direct Final Rule, as published in 77 FR
37587 through 77 FR 37600 on June 22, 2012, and in 77 FR 42988 through 77 FR
42989 on July 23, 2012, respectively, with an effective date of January 1,
2013.
Federal Terms and State
Equivalents: When the regulations as set forth in the revised final rule
for Occupational Safety and Health Standards and Construction Industry
Standards are applied to the Commissioner of the Department of Labor and
Industry or to Virginia employers, the following federal terms shall be
considered to read as follows:
|
Federal
Terms
|
|
VOSH
Equivalent
|
|
29
CFR
|
|
VOSH
Standard
|
|
Assistant
Secretary
|
|
Commissioner
of Labor and Industry
|
|
Agency
|
|
Department
|
|
September
20, 2012
|
|
January
1, 2013
|
VA.R. Doc. No. R13-3412; Filed
September 28, 2012, 2:46 p.m.
Final Regulation
REGISTRAR'S NOTICE: The following regulatory action is exempt
from the Administrative Process Act in accordance with § 2.2-4006 A 4 c of
the Code of Virginia, which excludes regulations that are necessary to meet the
requirements of federal law or regulations provided such regulations do not
differ materially from those required by federal law or regulation. The Safety
and Health Codes Board will receive, consider, and respond to petitions by any
interested person at any time with respect to reconsideration or revision.
Titles of Regulations:
16VAC25-175. Federal Identical Construction Industry Standards (amending
6VAC25-175-1926.800, 16VAC25-175-1926.856, 16VAC25-175-1926.858).
Statutory Authority: § 40.1-22
of the Code of Virginia.
Effective Date: January
1, 2013.
Agency Contact: John J.
Crisanti, Planning and Evaluation Manager, Department of Labor and Industry,
Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804)
786-4300, FAX (804) 786-8418, TTY (804) 786-2376, or email
john.crisanti@doli.virginia.gov.
Summary:
On August 17, 2012,
federal OSHA issued a Direct Final Rule, along with a companion notice of
proposed rulemaking at 77 FR 49741, that applies the requirements of the August
2010 Final Rule for Cranes and Derricks in Construction to demolition work and
underground construction. This Direct Final Rule has applied the same crane
rules to underground construction and demolition that were already being used
by other construction sectors and has streamlined federal OSHA's standards by
eliminating the separate Cranes and Derricks Standard currently used for
underground and demolition work.
The Direct Final Rule also
corrected several errors introduced in the 2010 rulemaking. To cover all
construction work under Subpart CC and to correct errors, federal OSHA has
amended (i) §§ 1926.856(c) and 1926.858(b) by replacing the requirements
to comply with Subpart DD with requirements to comply with Subpart CC and (ii)
§ 1926.858(b) by reinstating the requirement to comply with Subpart N as well.
Also, federal OSHA has
amended § 1926.800(t) to extend Subpart CC to underground construction and to
resolve the technical errors set forth in that section. Federal OSHA has
amended the introductory paragraph of § 1926.800(t) to restore the provision
allowing employers to use cranes to hoist personnel for routine access to the
underground worksites via a shaft without the need to show that conventional
means of access are more hazardous or impossible for this purpose. This
amendment excepts routine access of employees to an underground worksite via a
shaft from the requirements of § 1926.1431(a), requirements that are virtually
identical to the requirements of § 1926.550(g)(2). Federal OSHA has also
restored § 1926.800(t)(1) through (4) and corrected three minor grammatical
errors that appeared in the text of paragraphs § 1926.800(t)(3)(vi),
(t)(4)(iii), and (t)(4)(iv) as previously published in the Code of Federal
Regulations.
This action incorporates
these changes into the Virginia construction industry standards.
Note on Incorporation by
Reference: Pursuant to § 2.2-4103
of the Code of Virginia, 29 CFR Part 1926 (Construction Industry Standards) is
declared a document generally available to the public and appropriate for
incorporation by reference. For this reason this document will not be printed
in the Virginia Register of Regulations. A copy of this document is available
for inspection at the Department of Labor and Industry, Main Street Centre, 600
East Main Street, Richmond, Virginia 23219, and in the office of the Registrar
of Regulations, General Assembly Building, 9th and Broad Streets, Richmond,
Virginia 23219.
Statement of Final Agency
Action: On September 12, 2012, the Safety and Health Codes Board adopted
federal OSHA's Direct Final Rule for Cranes and Derricks in Construction;
Demolition and Underground Construction, as published in 77 FR 49722 through 77
FR 49730 on August 17, 2012, with an effective date of January 1, 2013.
Federal Terms and State
Equivalents: When the regulations as set forth in the revised final rule
for Construction Industry Standards is applied to the Commissioner of the
Department of Labor and Industry or to Virginia employers, the following
federal terms shall be considered to read as follows:
|
Federal
Terms
|
|
VOSH
Equivalent
|
|
29
CFR
|
|
VOSH
Standard
|
|
Assistant
Secretary
|
|
Commissioner
of Labor and Industry
|
|
Agency
|
|
Department
|
|
November
15, 2012
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|
January
1, 2013
|
VA.R. Doc. No. R13-3410; Filed
September 28, 2012, 2:48 p.m.
Final
Regulation
REGISTRAR'S NOTICE: The following regulatory action is exempt
from the Administrative Process Act in accordance with § 2.2-4006 A 4 c of
the Code of Virginia, which excludes regulations that are necessary to meet the
requirements of federal law or regulations provided such regulations do not
differ materially from those required by federal law or regulation. The Safety
and Health Codes Board will receive, consider, and respond to petitions by any
interested person at any time with respect to reconsideration or revision.
Titles of Regulations:
16VAC25-175. Federal Identical Construction Industry Standards (amending
16VAC25-175-1926.251).
Statutory Authority: § 40.1-22
of the Code of Virginia.
Effective Date: January
1, 2013.
Agency Contact: John J.
Crisanti, Planning and Evaluation Manager, Department of Labor and Industry,
Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804)
786-4300, FAX (804) 786-8418, TTY (804) 786-2376, or email
john.crisanti@doli.virginia.gov.
Summary:
In the final rule for
OSHA's Standards Improvement Project - Phase III (June 8, 2011), federal OSHA
stated that it was amending its standards regulating slings for general
industry, shipyard employment, and construction by removing outdated tables
that specify safe working loads and revising other provisions that referenced
the outdated tables. In replacing these tables, federal OSHA added requirements
that prohibit employers from loading slings in excess of the recommended safe
working load prescribed on identification markings located on or attached to
each sling; these requirements also prohibit the use of slings that do not have
such markings. Although federal OSHA removed the load-capacity tables for
slings from several standards, it failed to include in the regulatory text
provisions to remove the tables in § 1926.251 (Construction; tables
H-1 and H-3 through H-19) and redesignate Table H-2 to H-1 and Table H-20 to
H-2. In this action, federal OSHA amended § 1926.251 by removing most of the
existing rated capacity tables (H-1 and H-3 through H-19), redesignating Table
H-2 as Table H-1 and Table H-20 as Table H-2, and revising paragraphs (b)(5)
and (c)(5) to indicate the new table number. This action incorporates these
changes into the Virginia construction standards.
Note on Incorporation by
Reference: Pursuant to § 2.2-4103
of the Code of Virginia, 29 CFR Part 1926 (Construction Industry Standards) is
declared a document generally available to the public and appropriate for
incorporation by reference. For this reason this document will not be printed
in the Virginia Register of Regulations. A copy of this document is available
for inspection at the Department of Labor and Industry, Main Street Centre, 600
East Main Street, Richmond, Virginia 23219, and in the office of the Registrar
of Regulations, General Assembly Building, 9th and Broad Streets, Richmond,
Virginia 23219.
Statement of Final Agency
Action: On September 12, 2012, the Safety and Health Codes Board adopted
the Correction and Technical Amendment to federal OSHA's Final Rule for Rigging
Equipment for Material Handling Construction Standard, § 1926.251, as published
in 77 FR 23117 through 77 23118 on April 18, 2012, with an effective date of
January 1, 2013.
Federal Terms and State
Equivalents: When the regulations as set forth in the revised final rule
for Occupational Safety and Health Standards is applied to the Commissioner of
the Department of Labor and Industry or to Virginia employers, the following
federal terms shall be considered to read as follows:
|
Federal
Terms
|
|
VOSH
Equivalent
|
|
29
CFR
|
|
VOSH
Standard
|
|
Assistant
Secretary
|
|
Commissioner
of Labor and Industry
|
|
Agency
|
|
Department
|
|
April
18, 2012
|
|
January
1, 2013
|
VA.R. Doc. No. R13-3413; Filed
September 28, 2012, 2:49 p.m.
w –––––––––––––––––– w
TITLE 18.
PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD FOR BRANCH PILOTS
Final Regulation
Title of Regulation:
18VAC45-20. Board for Branch Pilots Regulations (amending
18VAC45-20-5, 18VAC45-20-10, 18VAC45-20-20, 18VAC45-20-40, 18VAC45-20-50).
Statutory Authority: § 54.1-902
of the Code of Virginia.
Effective Date:
December 1, 2012.
Agency Contact:
Kathleen R. Nosbisch, Executive Director, Board for Branch Pilots, 9960 Mayland
Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (804)
527-4294, or email branchpilots@dpor.virginia.gov.
Summary:
The amendments (i) update
the physical examination requirements to include chemical testing for initial
and renewal licensing requirements; (ii) modify the grounds for denial of
initial licensure or licensure renewal, or discipline; (iii) reduce the amount
of time a licensee has to report certain information to the board to seven
days; (iii) require the medical review officer to report any delay or refusal
by a licensee to report to a test or being tested; and (iv) add marijuana to the
definitions of "chemical test" and "illegal drugs."
Summary of Public Comments
and Agency's Response: No public comments were received by the promulgating
agency.
18VAC45-20-5. Definitions.
The words and terms used in
this chapter have the following meanings, unless the context requires a
different meaning:
"Attempting to
perform" means any time when a licensee has accepted an assignment to
perform any of the duties of his office or job.
"Chemical test,"
except when applied to testing for the presence of alcohol, means any
scientifically recognized test and analyses of an individual's breath, blood,
urine, saliva, bodily fluids, hair or tissues for evidence of controlled
substances listed in Schedules I - V of the Drug Control Act (§ 54.1-3400 et
seq. of the Code of Virginia) or marijuana. The words "chemical
test" as used in this chapter in connection with the testing for the
presence of alcohol refers to a scientifically recognized test involving saliva
or breath.
"Illegal drugs"
includes (i) any controlled substance as that term is defined in the
Drug Control Act at § 54.1-3401 of the Code of Virginia listed in Schedule I;
(§ 54.1-3446 of the Code of Virginia or ); (ii) those
controlled substances illegally acquired listed from Schedules II - V; or
(§§ 54.1-3448, 54.1-3450, 54.1-3452 and 54.1-3454 of the Code of
Virginia, respectively); or [ (iii) ] marijuana.
It is the intent of these regulations that in the event the contents of
Schedules I - V of the Drug Control Act are changed, that these regulations
incorporate such changes at the time those controlled substances are made a
part of the Drug Control Act in Virginia.
"Medical review
officer" or "MRO" means a Virginia licensed physician with a
current valid certification from the American College of Occupational and
Environmental Medicine or the American Association of Medical Review Officers
whose duties, authorities and responsibilities are delineated by these
organizations.
"On duty" means
the period of time the licensee is available to receive orders for an
assignment.
18VAC45-20-10. Initial
licensing.
A. Any person wishing to
obtain a license as a limited branch pilot shall meet the following
qualifications:
1. Satisfactorily complete a
two-year apprenticeship in a program approved by the board;
2. Satisfactorily complete a
comprehensive examination which shall be approved by the board and administered
by the examining committee of the board. The examination shall be in two parts:
a. Written; and
b. Practical oral
examination;
3. Comply with the board's
regulations and Chapter 9 (§ 54.1-900 et seq.) of Title 54.1 of the Code
of Virginia;
4. Furnish to the board
evidence of a satisfactory physical examination conducted within the
immediately preceding 60 days. This examination shall include the chemical
tests referred to in 18VAC45-20-5;
5. Notify the board of any
chronic or acute physical or mental condition; and
6. Pay a licensing fee of
$60. Each check or money order shall be made payable to the Treasurer of
Virginia. All fees shall be nonrefundable.
B. Any limited branch pilot
wishing to obtain a full branch pilot license shall meet the following
qualifications:
1. Satisfactorily complete a
five-year apprenticeship in a program approved by the board;
2. Hold a limited branch pilot
license in good standing;
3. Pass a practical
examination approved by the board and administered by the board's examining
committee;
4. Possess a valid unlimited
Federal Inland Masters License with First Class Pilot endorsement issued by the
United States Coast Guard for the same waters as his branch. Any such federal
license acquired after January 1994 shall include an Automated Radar Plotting
Aids (ARPA) radar certificate. A copy of this license shall be filed with the
clerk of the board immediately;
5. Furnish to the board
evidence of a satisfactory physical examination conducted within the
immediately preceding 60 days. This examination shall include the chemical
tests referred to in 18VAC45-20-50;
6. Qualify in accordance with
§ 54.1-905 of the Code of Virginia; and
7. Pay a licensing fee of
$60. Each check or money order is to be made payable to the Treasurer of
Virginia. All fees shall be nonrefundable.
18VAC45-20-20. License
renewal.
A. Each pilot seeking
renewal of his license shall complete a renewal application, comply with the
provisions of this section, and appear before the board or its License Renewal
Committee which shall determine if he possesses the qualifications to be
renewed.
B. Any limited branch pilot
seeking to renew his license shall meet the following standards:
1. Furnish to the board
evidence of a satisfactory physical examination conducted within the
immediately preceding 60 days. If the branch pilot has not been subject to
random chemical testing during the preceding 24 months, then this examination
shall include the chemical tests referred to in 18VAC45-20-50;
2. Furnish to the board
evidence that he has transited the waters embraced by his license during the
preceding 12 months;
3. After three years of
licensure as a limited branch pilot, possess a valid First Class Pilot License
issued by the United States Coast Guard for the same waters as his limited
branch. Any such federal license acquired after January 1994 shall include an
Automated Radar Plotting Aids (ARPA) radar certificate; and
4. Pay a license renewal fee
of $60. Each check or money order is to be made payable to the Treasurer of
Virginia. All fees shall be nonrefundable.
C. Any full branch pilot
seeking to renew his license shall meet the following standards:
1. Possess a valid unlimited
Federal Inland Masters License with First Class Pilot endorsement issued by the
United States Coast Guard for the same waters as his branch; any such federal
license renewed or acquired after January 1994 shall include an Automated Radar
Plotting Aids (ARPA) radar certificate;
2. Furnish to the board
evidence of a satisfactory physical examination conducted within the
immediately preceding 60 days. If the branch pilot has not been subject to
random chemical testing during the preceding 24 months, then this examination
shall include the chemical tests referred to in 18VAC45-20-50;
3. Furnish to the board
evidence that he has transited the waters embraced by his license during the
preceding 12 months, and that he has piloted 12 or more ships during that time,
at least six trips as a pilot within the first six months of the calendar year
and six trips as a pilot within the last six months of the calendar year. Upon
the showing of good cause, the board may waive the requirements of this
subdivision when in its judgment the pilot is otherwise qualified;
4. Qualify in accordance with
§ 54.1-906 of the Code of Virginia; and
5. Pay a license renewal fee
of $60. Each check or money order is to be made payable to the Treasurer of
Virginia. All fees shall be nonrefundable.
18VAC45-20-40. Grounds for
denial of licensure, denial of renewal, or discipline.
The board shall have the
authority to deny initial licensure, deny an extension of license, or deny
renewal as well as to discipline existing licensees, whether limited or not,
for the following reasons:
1. (i) Having been
convicted or found guilty regardless of adjudication in any jurisdiction of the
United States of any felony or a misdemeanor involving moral turpitude or any
alcohol- or drug-related offense there being no appeal pending, therefrom or
the time for appeal having elapsed.
(ii) Having been convicted
or found guilty regardless of adjudication in any jurisdiction of the United
States of any felony or a misdemeanor resulting from an arrest for any alcohol-
or drug-related offense, there being no appeal pending therefrom or the time
for appeal having elapsed.
Any plea of nolo contendere
shall be considered a conviction for the purposes of this subdivision. The
record of a conviction certified or authenticated in such form as to be
admissible in evidence of the laws of the jurisdiction where convicted shall be
admissible as prima facie evidence of such conviction;
2. Failing to inform the
board in writing within 30 seven calendar days of pleading guilty
or nolo contendere or being convicted or found guilty of any felony or of a
misdemeanor involving moral turpitude or any alcohol- or drug-related
offense;
3. Failing to report to the
board in writing any reports of the National Transportation Safety Board
involving the licensee, or the results of any disciplinary action taken by the
United States Coast Guard against the licensee within 30 seven
calendar days of that report or action;
4. Refusing or in any other
way failing to carry out an order from the pilot officers for reasons other
than the public's health, safety, or welfare;
5. Negligence or misconduct
in the performance of duties;
6. Violating or cooperating
with others in violating any provision of Chapter 9 (§ 54.1-900 et seq.) of the
Title 54.1 of the Code of Virginia or any regulation of the board;
7. Failing to, as soon as
possible under the circumstances, report to the pilot officers his finishing
time and other required information relating to the particulars of the ship;
8. Failing to file
immediately with the president or vice president of the board with a copy to
the board administrator a complete written account of any violation of the
statutes of Virginia or of the United States relating to pilotage or failing to
report in writing to the president or vice president of the board with a copy
to the board administrator an account of all collisions, groundings, or other
maritime mishaps of any description that may occur during the discharge of the
pilot's duties. This report shall be received no later than seven days after
such an incident;
9. Failing to report to the
board any physical or mental condition which may affect his ability to perform
the duties of a pilot. Such reports shall be provided within 30 seven
calendar days of the onset of the condition;
10. Refusing to comply with
the board's requirement for a chemical test. Such test is required immediately
and no later than 12 hours after involvement in a collision, grounding, or
other incident resulting in personal injury, death, environmental hazard, or
property damage in excess of $100,000. Refusing to comply with this requirement
may result in summary suspension of the pilot's license in accordance with §
54.1-902 of the Code of Virginia;
11. Refusing to comply with
any board requirement for chemical tests in any instance in which the board has
cause to believe a test is necessary to protect the public health, safety, or
welfare. Refusing to comply with this requirement may result in summary
suspension of the pilot's license in accordance with § 54.1-902 of the Code of
Virginia;
12. Failing to send proof of
any test required by subdivision 10 or 11 of this section to the president or
vice president of the board with a copy to the board administrator within 48
hours of the administration of the test;
13. A positive finding as a
result of, or on, any substance abuse or chemical test as a result of which the
board believes there is a threat to the public health, safety , or welfare.
Such a finding may result in summary suspension of the pilot's license in
accordance with § 54.1-902 of the Code of Virginia;
14. Evidence of impaired
performance in any instance in which the board believes there is a threat to
the public health, safety, or welfare. Such a finding may result in summary
suspension of the pilot's license in accordance with § 54.1-902 of the Code of
Virginia;
15. Performing or attempting
to perform any of the duties of his office or job while under the influence of
illegal drugs;
16. Performing or attempting
to perform any of the duties of his office or job while under the influence of
alcohol or any medication (controlled substance or otherwise) to the extent
that he was unfit for the performance of the duties of his office or job; and
17. Failing to comply with
any of the provisions of 18VAC45-20-50.
18VAC45-20-50. Random chemical
testing.
A. All Virginia licensed
branch pilots shall be subject to the random chemical testing as set forth in
this chapter. Random chemical testing shall be conducted at an annual selection
rate of not less than 30% and not more than 100% of total licensees. Licensees
shall be responsible for all costs associated with random chemical testing. The
chemical test shall be a comprehensive drug screen acceptable to the board that
includes testing for controlled substances in Schedules I - V of Chapter 34 (§
54.1-3400 et seq.) of Title 54.1 of the Code of Virginia.
Only licensees on duty may
be selected for random testing. A licensee selected for random chemical testing
shall report for testing within two hours of notification. Failure to take a
random chemical test is considered refusal to take the test.
B. Duties of licensee.
1. All licensees of this
board shall enroll and participate in a random chemical testing program that
meets the criteria of this chapter.
2. An on-duty licensee
selected for random chemical testing shall report for testing within two hours
of notification that he has been selected.
3. Licensees who receive a
prescription for any medication from any health care provider shall have the
following duties:
a. Give the health care
provider a copy of the licensee's job description as a Virginia pilot;
b. Give the health care
provider a complete list of medications used within the 30 days preceding the
current visit;
c. Obtain a written statement
from the health care provider stating if the new prescription is for a
controlled substance (Schedules II - V of the Drug Control Act) and obtain a
written statement from the health care provider as to the licensee's fitness to
safely perform the duties found in the job description; and
d. If prescribed any medication
containing a Schedule II - V controlled substance that is to be used within 12
hours of being on duty, make certain the MRO received by hand delivery or
telefax each prescription written by any health care provider at the time such
prescription is written along with a complete list of medications used by the
licensee within the preceding 30 days.
C. The medical review
officer shall:
1. Be completely familiar
with all duties of a Virginia pilot.
2. Receive, evaluate and
maintain records of all medications given to him by or on behalf of each
Virginia pilot.
3. Receive, evaluate and
maintain a record of each random chemical test taken by a Virginia pilot.
4. Any time the MRO finds the
presence of a drug or alcohol that may impair the safe discharge of any duty of
a Virginia pilot such that he is unfit to perform those duties, report his
written findings to the licensee and president or vice president of the board
and to the board's administrator.
5. Report in writing to
the licensee, president or vice-president of the board, and the board's
administrator of any delay or refusal by a licensee in reporting to testing or
being tested.
5. 6. To the
extent consistent with state and federal law, protect the confidentiality of
all licensee records.
6. 7. Judge
fitness to safely perform duties in the context of the licensee's prescription
medications and the licensee's available medical history. Any time the MRO
finds evidence that the Virginia pilot may be impaired in the safe discharge of
any of his duties such that he may be unfit to perform those duties, his
written finding shall be reported to the licensee and president or vice
president of the board and to the board's administrator.
NOTICE: The following forms used in administering the above
regulation were filed by the agency. Amended or new forms are listed and 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 through the agency contact or at the Office of Registrar of
Regulations, General Assembly Building, 2nd Floor, Richmond, VA 23219.
FORMS (18VAC45-20)
Branch Pilot License Renewal
Application Form (rev. 3/07).
Limited Branch Pilot License
Renewal Application Form (rev. 3/07).
Authorization and Consent for Drug & Alcohol
Testing and Release of Test Results (rev. 12/09).
VA.R. Doc. No. R09-1843; Filed
September 27, 2012, 3:07 p.m.
BOARD FOR
CONTRACTORS
Proposed Regulation
Title of Regulation:
18VAC50-22. Board for Contractors Regulations (amending
18VAC50-22-30).
Statutory Authority:
§§ 54.1-201 and 54.1-1102 of the Code of Virginia.
Public
Hearing Information:
November 2, 2012 -
11 a.m. - Department of Professional and Occupational Regulations, 2nd
Floor, Board Room 3, 9960 Mayland Drive, Suite 400, Richmond, VA
Public Comment Deadline:
December 21, 2012.
Agency Contact: Eric L.
Olson, Executive Director, Board for Contractors, 9960 Mayland Drive, Suite
400, Richmond, VA 23233, telephone (804) 367-2785, FAX (804) 527-4401, or email
contractors@dpor.virginia.gov.
Basis: Section 54.1-201
of the Code of Virginia provides the board the authority to establish
regulations. Section 54.1-1102 of the Code of Virginia provides the authority
for the board to promulgate regulations for the licensure of contractors in the
Commonwealth. The content of the regulations is up to the discretion of the
board, but shall not be in conflict with the purposes of the statutory
authority.
Purpose: Recent
statutory and policy changes made by federal and state agencies that directly
affect the regulant population of the board, as well as changes in the
industry, warrant review and promulgation of regulations to ensure that they
accurately reflect these changes and the current requirements and standards,
and that they are consistent and clear. Ensuring that the regulations are as
clear as possible will facilitate the regulations' compliance with the statutes
and board's requirements, which will better protect the health, safety, and
welfare of the public.
Substance: The new
specialty accessibility services contracting and a definition of the scope of
practice for this specialty is added to the current regulations. Also included
is a separate specialty for contractors that perform work on limited use limited
application (LULA) elevators.
The definition of
manufactured/modular building contracting is amended to add the provisions of
the current HUD requirements.
Issues: These changes
are implemented to bring the current regulations into compliance with changes
in statutes and regulations that have already been determined to be
advantageous to the public. The failure of the Board for Contractors to bring
its regulations into compliance with these changes could result in potential
damage to businesses and individuals.
Failure to bring the
manufactured housing contractors into conformity with current HUD requirements
would place the Commonwealth out of compliance, which could result in action
being taken by HUD. It would be advantageous to comply with the federal
requirements.
Department of Planning and
Budget's Economic Impact Analysis:
Summary of the Proposed
Amendments to Regulation. The Board of Contractors (Board) proposes to add four
occupational definitions to its definitions of specialty services.
Result of Analysis. There is
insufficient information to ascertain whether benefits will likely exceed costs
for these proposed changes.
Estimated Economic Impact. The
Board of Contractors Regulations include a list of defined specialty services
which contractors may be certified to provide. The Board now proposes to add
four new specialty definitions to this list. Specifically, the Board proposes
to add accessibility services contracting (ASC), accessibility services
contracting limited use limited application (ASL), industrialized building
contracting (IBC) and manufactured home contracting (MHC) to the list of
specialty services.
Board staff reports that the
definitions for manufactured home contracting (MHC) and industrialized building
contracting (IBC) are being added so that these regulations conform to
Department of Housing and Urban Development's (HUD) requirements and that ASC
and ASL are being added so that contractors can work on wheelchair lifts,
incline chairlifts and dumbwaiters in private homes without getting a more
comprehensive elevator/escalator specialty. Board staff also reports that
regulatory changes to flesh out the rights and responsibilities that will fall
to contractors that work in these new specialties are being promulgated separately
in another regulatory action that will follow. It will likely be more possible
to measure the costs and benefits of adding these specialties in that
regulatory action than it is in this one.
Businesses and Entities
Affected. The Department of Professional and Occupational Regulation (DPOR)
reports that the Board currently licenses 117 elevator/escalator contractors
and 958 modular/manufactured home contractors.
Localities Particularly
Affected. No locality will be particularly affected by this proposed regulatory
action.
Projected Impact on
Employment. There is insufficient information to measure the impact that this
regulatory action will have on employment in the Commonwealth.
Effects on the Use and Value
of Private Property. This regulatory action will likely have no effect on the
use or value of private property in the Commonwealth.
Small Businesses: Costs and
Other Effects. There is insufficient information to measure the impact that
this regulatory action will likely have on small businesses in the
Commonwealth.
Small Businesses: Alternative
Method that Minimizes Adverse Impact. There is insufficient information to
measure the impact that this regulatory action will likely have on small
businesses in the Commonwealth.
Real Estate Development Costs.
This regulatory action will likely have no effect on real estate development
costs in the Commonwealth.
Legal Mandate. The Department
of Planning and Budget (DPB) has analyzed the economic impact of this proposed
regulation in accordance with § 2.2-4007.04 of the Administrative Process
Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such
economic impact analyses include, but need not be limited to, the projected
number of businesses or other entities to whom the regulation would apply, the
identity of any localities and types of businesses or other entities
particularly affected, the projected number of persons and employment positions
to be affected, the projected costs to affected businesses or entities to
implement or comply with the regulation, and the impact on the use and value of
private property. Further, if the proposed regulation has adverse effect on
small businesses, § 2.2-4007.04 requires that such economic impact
analyses include (i) an identification and estimate of the number of small
businesses subject to the regulation; (ii) the projected reporting,
recordkeeping, and other administrative costs required for small businesses to
comply with the regulation, including the type of professional skills necessary
for preparing required reports and other documents; (iii) a statement of the
probable effect of the regulation on affected small businesses; and (iv) a
description of any less intrusive or less costly alternative methods of
achieving the purpose of the regulation. The analysis presented above
represents DPB's best estimate of these economic impacts.
Agency's Response to
Economic Impact Analysis: The department concurs with the approval.
Summary:
These proposed amendments
add a new specialty to incorporate businesses that perform work related to the
Certified Accessibility Mechanic program and amend the manufactured home
specialty to comply with changes to the Code of Federal Regulations by the U.S.
Department of Housing and Urban Development.
18VAC50-22-30. Definitions of
specialty services.
The following words and
terms when used in this chapter unless a different meaning is provided or is
plainly required by the context shall have the following meanings:
"Accessibility
services contracting" (Abbr: ASC) means the service that provides for all
work in connection with the constructing, installing, altering, servicing,
repairing, testing, or maintenance of wheelchair lifts, incline chairlifts,
dumbwaiters with a capacity limit of 300 pounds, and private residence elevators
in accordance with the Uniform Statewide Building Code (13VAC5-63). The EEC
specialty may also perform this work. This specialty does not include work on
limited use-limited application (LULA) elevators.
"Accessibility
services contracting – LULA" (Abbr: ASL) means the service that provides
for all work in connection with the constructing, installing, altering,
servicing, repairing, testing, or maintenance of wheelchair lifts, incline
chairlifts, dumbwaiters with a capacity limit of 300 pounds, private residence
elevators, and limited use-limited application (LULA) elevators in accordance
with the Uniform Statewide Building Code (13VAC5-63). The EEC specialty may
also perform this work.
"Alternative energy
system contracting" (Abbr: AES) means that the service which
that provides for the installation, repair or improvement, from the
customer's meter, of alternative energy generation systems, supplemental energy
systems and associated equipment annexed to real property. No other
classification or specialty service provides this function. This specialty does
not provide for electrical, plumbing, gas fitting, or HVAC functions.
"Asbestos
contracting" (Abbr: ASB) means that the service which
that provides for the installation, removal, or encapsulation of asbestos
containing materials annexed to real property. No other classification or
specialty service provides for this function.
"Asphalt paving and
sealcoating contracting" (Abbr: PAV) means that the service which
that provides for the installation of asphalt paving and/or or
sealcoating, or both, on subdivision streets and adjacent intersections,
driveways, parking lots, tennis courts, running tracks, and play areas, using
materials and accessories common to the industry. This includes height
adjustment of existing sewer manholes, storm drains, water valves, sewer
cleanouts and drain grates, and all necessary excavation and grading. The H/H
classification also provides for this function.
"Billboard/sign
contracting" (Abbr: BSC) means that the service which
that provides for the installation, repair, improvement, or dismantling
of any billboard or structural sign permanently annexed to real property. H/H
and BLD are the only other classifications that can perform this work except
that a contractor in this specialty may connect or disconnect signs to existing
electrical circuits. No trade related plumbing, electrical, or HVAC work is
included in this function.
"Blast/explosive
contracting" (Abbr: BEC) means that the service which
that provides for the use of explosive charges for the repair,
improvement, alteration, or demolition of any real property or any structure
annexed to real property.
"Commercial improvement
contracting" (Abbr: CIC) means that the service which
that provides for repair or improvement to nonresidential property and
multifamily property as defined in the Virginia Uniform Statewide Building
Code. The BLD classification also provides for this function. The CIC
classification does not provide for the construction of new buildings,
accessory buildings, electrical, plumbing, HVAC, or gas work.
"Concrete
contracting" (Abbr: CEM) means that the service which
that provides for all work in connection with the processing,
proportioning, batching, mixing, conveying and placing of concrete composed of
materials common to the concrete industry. This includes but is not limited to
finishing, coloring, curing, repairing, testing, sawing, grinding, grouting,
placing of film barriers, sealing and waterproofing. Construction and
assembling of forms, molds, slipforms, pans, centering, and the use of rebar is
also included. The BLD and H/H classifications also provide for this function.
"Electronic/communication
service contracting" (Abbr: ESC) means that the service which
that provides for the installation, repair, improvement, or removal of
electronic or communications systems annexed to real property including
telephone wiring, computer cabling, sound systems, data links, data and network
installation, television and cable TV wiring, antenna wiring, and fiber optics
installation, all of which operate at 50 volts or less. A firm holding an ESC
license is responsible for meeting all applicable tradesman licensure
standards. The ELE classification also provides for this function.
"Elevator/escalator
contracting" (Abbr: EEC) means that the service which
that provides for the installation, repair, improvement or removal of
elevators or escalators permanently annexed to real property. A firm holding an
EEC license is responsible for meeting all applicable tradesman licensure
standards. No other classification or specialty service provides for this
function.
"Environmental
monitoring well contracting" (Abbr: EMW) means that the
service which that provides for the construction of a well to
monitor hazardous substances in the ground.
"Environmental
specialties contracting" (Abbr: ENV) means that the service which
that provides for installation, repair, removal, or improvement of
pollution control and remediation devices. No other specialty provides for this
function. This specialty does not provide for electrical, plumbing, gas
fitting, or HVAC functions.
"Equipment/machinery
contracting" (Abbr: EMC) means that the service which
that provides for the installation or removal of equipment or machinery
including but not limited to conveyors or heavy machinery. Boilers exempted by
the Virginia Uniform Statewide Building Code but regulated by the Department of
Labor and Industry are also included in this specialty. This specialty does not
provide for any electrical, plumbing, process piping or HVAC functions.
"Farm improvement
contracting" (Abbr: FIC) means that the service which
that provides for the installation, repair or improvement of a
nonresidential farm building or structure, or nonresidential farm accessory-use
structure, or additions thereto. The BLD classification also provides for this
function. The FIC specialty does not provide for any electrical, plumbing,
HVAC, or gas fitting functions.
"Fire alarm systems
contracting" (Abbr: FAS) means that the service which
that provides for the installation, repair, or improvement of fire alarm
systems which operate at 50 volts or less. The ELE classification also provides
for this function. A firm with an FAS license is responsible for meeting all
applicable tradesman licensure standards.
"Fire sprinkler
contracting" (Abbr: SPR) means that the service which
that provides for the installation, repair, alteration, addition,
testing, maintenance, inspection, improvement, or removal of sprinkler systems
using water as a means of fire suppression when annexed to real property. This
specialty does not provide for the installation, repair, or maintenance of
other types of fire suppression systems. The PLB classification allows for the
installation of limited area sprinklers as defined by BOCA. This specialty may
engage in the installation of backflow prevention devices in the fire sprinkler
supply main and sprinkler system when the installer has received formal
vocational training approved by the board that included instruction in the
installation of backflow prevention devices.
"Fire suppression
contracting" (Abbr: FSP) means that the service which
that provides for the installation, repair, improvement, or removal of
fire suppression systems including but not limited to halon and other gas
systems; dry chemical systems; and carbon dioxide systems annexed to real
property. No other classification provides for this function. The FSP specialty
does not provide for the installation, repair, or maintenance of water
sprinkler systems.
"Gas fitting
contracting" (Abbr: GFC) means that the service which
that provides for the installation, repair, improvement, or removal of
gas piping and appliances annexed to real property. A firm with a GFC license
is responsible for meeting all applicable tradesman licensure standards.
"Home improvement
contracting" (Abbr: HIC) means that the service which
that provides for repairs or improvements to one-family and two-family
residential buildings or structures annexed to real property. The BLD
classification also provides for this function. The HIC specialty does not
provide for electrical, plumbing, HVAC, or gas fitting functions. It does not
include high rise buildings, buildings with more than two dwelling units, or
new construction functions beyond the existing building structure other than
decks, patios, driveways and utility out buildings.
"Industrialized
building contracting" (Abbr: IBC) means the service that provides for the
installation or removal of an industrialized building as defined in the
Virginia Industrialized Building Safety Regulations (13VAC5-91). This
classification covers foundation work in accordance with the provisions of the
Uniform Statewide Building Code (13VAC5-63) and allows the licensee to complete
internal tie-ins of plumbing, gas, electrical, and HVAC systems. It does not
allow for installing additional plumbing, gas, electrical, or HVAC work such as
installing the service meter or installing the outside compressor for the HVAC
system. The BLD classification also provides for this function.
"Landscape irrigation
contracting" (Abbr: ISC) means that the service which
that provides for the installation, repair, improvement, or removal of
irrigation sprinkler systems or outdoor sprinkler systems. The PLB and H/H
classifications also provide for this function. This specialty may install
backflow prevention devices incidental to work in this specialty when the
installer has received formal vocational training approved by the board that
included instruction in the installation of backflow prevention devices.
"Landscape service
contracting" (Abbr: LSC) means that the service which
that provides for the alteration or improvement of a land area not
related to any other classification or service activity by means of excavation,
clearing, grading, construction of retaining walls for landscaping purposes, or
placement of landscaping timbers. The BLD classification also provides for this
function.
"Lead abatement
contracting" (Abbr: LAC) means that the service which
that provides for the removal or encapsulation of lead-containing
materials annexed to real property. No other classification or specialty
service provides for this function, except that the PLB and HVA classifications
may provide this service incidental to work in those classifications.
"Liquefied petroleum
gas contracting" (Abbr: LPG) means that the service which
that includes the installation, maintenance, extension, alteration, or
removal of all piping, fixtures, appliances, and appurtenances used in
transporting, storing or utilizing liquefied petroleum gas. This excludes hot
water heaters, boilers, and central heating systems that require a HVA or PLB
license. The GFC specialty also provides for this function. A firm holding a
LPG license is responsible for meeting all applicable tradesman licensure
standards.
"Manufactured home
contracting" (Abbr: MHC) means the service that provides for the
installation or removal of a manufactured home as defined in the Virginia
Manufactured Home Safety Regulations (13VAC5-95). This classification does not
cover foundation work; however, it does allow installation of piers covered
under HUD regulations. It does allow a licensee to do internal tie-ins of
plumbing, gas, electrical, or HVAC equipment. It does not allow for installing
additional plumbing, gas, electrical, or HVAC work such as installing the
service meter or installing the outside compressor for the HVAC system. No
other specialty provides for this function.
"Marine facility
contracting" (Abbr: MCC) means that the service which
that provides for the construction, repair, improvement, or removal of
any structure the purpose of which is to provide access to, impede, or alter a
body of surface water. The BLD and H/H classifications also provide for this
function. The MCC specialty does not provide for the construction of accessory
structures or electrical, HVAC or plumbing functions.
"Masonry
contracting" (Abbr: BRK) means that the service which
that includes the installation of brick, concrete block, stone, marble,
slate or other units and products common to the masonry industry, including
mortarless type masonry products. This includes installation of grout,
caulking, tuck pointing, sand blasting, mortar washing, parging and cleaning
and welding of reinforcement steel related to masonry construction. The BLD
classification and HIC and CIC specialties also provide for this function.
"Modular/manufactured
building contracting" (Abbr: MBC) means that service which provides for
the installation or removal of a modular or manufactured building manufactured
under ANSI standards. This classification does not cover foundation work; however,
it does allow installation of piers covered under HUD regulations. It does
allow a licensee to do internal tie ins of plumbing, gas and electrical or HVAC
equipment. It does not allow for installing additional plumbing, electrical, or
HVAC work such as installing the service meter, or installing the outside
compressor for the HVAC system. The H/H and BLD classifications also provide
for this function.
"Natural gas fitting
provider contracting" (Abbr: NGF) means that the service which
that provides for the incidental repair, testing, or removal of natural
gas piping or fitting annexed to real property. This does not include new
installation of gas piping for hot water heaters, boilers, central heating
systems, or other natural gas equipment which requires a HVA or PLB license.
The GFC specialty also provides for this function. A firm holding a NGF license
is responsible for meeting all applicable tradesman licensure standards.
"Painting and
wallcovering contracting" (Abbr: PTC) means that the service
which that provides for the application of materials common to
the painting and decorating industry for protective or decorative purposes, the
installation of surface coverings such as vinyls, wall papers, and cloth
fabrics. This includes surface preparation, caulking, sanding and cleaning
preparatory to painting or coverings and includes both interior and exterior
surfaces. The BLD classification and the HIC and CIC specialties also provide
for this function.
"Radon mitigation
contracting" (Abbr: RMC) means that the service which
that provides for additions, repairs or improvements to buildings or
structures, for the purpose of mitigating or preventing the effects of radon
gas. This function can only be performed by a firm holding the BLD
classification or CIC (for other than one-family and two-family dwellings), FIC
(for nonresidential farm buildings) or HIC (for one-family and two-family
dwellings) specialty services. No electrical, plumbing, gas fitting, or HVAC
functions are provided by this specialty.
"Recreational facility
contracting" (Abbr: RFC) means that the service which
that provides for the construction, repair, or improvement of any
recreational facility, excluding paving and the construction of buildings,
plumbing, electrical, and HVAC functions. The BLD classification also provides
for this function.
"Refrigeration
contracting" (Abbr: REF) means that the service which
that provides for installation, repair, or removal of any refrigeration
equipment (excluding HVAC equipment). No electrical, plumbing, gas fitting, or
HVAC functions are provided by this specialty. This specialty is intended for
those contractors who repair or install coolers, refrigerated casework,
ice-making machines, drinking fountains, cold room equipment, and similar
hermetic refrigeration equipment. The HVAC classification also provides for
this function.
"Roofing
contracting" (Abbr: ROC) means that the service which
that provides for the installation, repair, removal or improvement of
materials common to the industry that form a watertight, weather resistant
surface for roofs and decks. This includes roofing system components when
installed in conjunction with a roofing project, application of dampproofing or
waterproofing, and installation of roof insulation panels and other roof
insulation systems above roof deck. The BLD classification and the HIC and CIC
specialties also provide for this function.
"Sewage disposal
systems contracting" (Abbr: SDS) means that the service which
that provides for the installation, repair, improvement, or removal of
septic tanks, septic systems, and other on-site sewage disposal systems annexed
to real property.
"Swimming pool
construction contracting" (Abbr: POL) means that the service
which that provides for the construction, repair, improvement or
removal of in-ground swimming pools. The BLD classification and the RFC
specialty also provide for this function. No trade related plumbing,
electrical, backflow or HVAC work is included in this specialty.
"Vessel construction
contracting" (Abbr: VCC) means that the service which
that provides for the construction, repair, improvement, or removal of
nonresidential vessels, tanks, or piping that hold or convey fluids other than
sanitary, storm, waste, or potable water supplies. The H/H classification also
provides for this function.
"Water well/pump
contracting" (Abbr: WWP) means that the service which
that provides for the installation of a water well system, which
includes construction of a water well to reach groundwater, as defined in §
62.1-255 of the Code of Virginia, and the installation of the well pump and
tank, including pipe and wire, up to and including the point of connection to
the plumbing and electrical systems. No other classification or specialty
service provides for construction of water wells. This regulation shall not
exclude PLB, ELE or HVAC from installation of pumps and tanks.
Note: Specialty contractors
engaging in construction which that involves the following
activities or items or similar activities or items may fall under the CIC, HIC
and/or FIC specialty services, or they may fall under the BLD classification.
|
Appliances
|
Fireplaces
|
Rubber linings
|
|
Awnings
|
Fireproofing
|
Sandblasting
|
|
Blinds
|
Fixtures
|
Scaffolding
|
|
Bulkheads
|
Floor coverings
|
Screens
|
|
Cabinetry
|
Flooring
|
Sheet metal
|
|
Carpentry
|
Floors
|
Shutters
|
|
Carpeting
|
Glass
|
Siding
|
|
Casework
|
Glazing
|
Skylights
|
|
Ceilings
|
Grouting
|
Storage bins and lockers
|
|
Chimneys
|
Grubbing
|
Stucco
|
|
Chutes
|
Guttering
|
Temperature controls
|
|
Conduit rodding
|
Insulation
|
Terrazzo
|
|
Curtains
|
Interior decorating
|
Tile
|
|
Curtain walls
|
Lubrication
|
Vaults
|
|
Decks
|
Metal work
|
Vinyl flooring
|
|
Doors
|
Millwrighting
|
Wall panels
|
|
Drapes
|
Mirrors
|
Wall tile
|
|
Drywall
|
Miscellaneous iron
|
Waterproofing
|
|
Epoxy
|
Ornamental iron
|
Weatherstripping
|
|
Exterior decoration
|
Partitions
|
Welding
|
|
Facings
|
Protective coatings
|
Windows
|
|
Fences
|
Railings
|
Wood floors
|
|
Fiberglass
|
Rigging
|
|
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 (18VAC50-22)
Contractor Licensing
Information, 27INTRO (5/09).
Trade-Related
Examinations and Qualifications Information, 27EXINFO (5/09).
License Application,
27LIC (rev. 4/10).
Class C License
Application (Short Form), 27CSF (rev. 4/10).
Additional License
Classification/Specialty Designation Application, 27ADDCL (rev. 4/10).
Change of Qualified
Individual Application, 27CHQI (rev. 4/10).
Change of Designated
Employee Application, 27CHDE (rev. 4/10).
Changes of Responsible
Management Form, 27CHRM (eff. 5/09).
Experience Reference,
27EXP (8/07).
Certificate of License
Termination, 27TERM (5/09).
Education Provider
Registration/Course Approval Application; Contractors Prelicense and Continuing
Education, 27EDREG (rev. 6/09).
Certificate of License
Termination, 27TERM (5/09).
Education Provider
Listing Form, 27EDLIST (5/09).
Financial Statement, 27FINST
(5/09).
Additional Qualified
Individual Experience Reference Form, 27QIEXP (5/09).
Contractor Licensing Information, A503-27INTRO
(9/12).
Requirements for Qualified Individuals,
A503-27EXINFO (9/12).
License Application, A503-27LIC (9/12).
Expedited Class A License Application,
A503-2705A_ELIC (9//12).
Class C License Application (Short Form),
A503-027CSF (9/12).
Additional Specialty Designation Application,
A503-27ADDSP (9/12).
Change in Qualified Individual and Designated
Employee Application, A503-27CH_QIDE (9/12).
Change of Responsible Management Application,
A503-27CHRM3 (7/11).
Certificate of License Termination, A503-27TERM
(3/11).
Education Provider Registration/Course Approval
Application, A503-27EDREG (10/11).
Education Provider Listing Application,
A503-27EDLIST (3/11).
Financial Statement, A503-27FINST (7/11).
Additional Qualified Individual Experience Reference
Form, A503-27QIEXP (3/11).
VA.R. Doc. No. R11-2636; Filed
October 3, 2012, 8:27 a.m.
BOARD OF
DENTISTRY
Final Regulation
Title of Regulation:
18VAC60-20. Regulations Governing Dental Practice (adding
18VAC60-20-18).
Statutory Authority: §§ 54.1-2400
and 54.1-2708.2 of the Code of Virginia.
Effective Date:
November 21, 2012.
Agency Contact: Sandra
Reen, Executive Director, Board of Dentistry, 9960 Mayland Drive, Suite 300,
Richmond, VA 23233-1463, telephone (804) 367-4538, FAX (804) 527-4428, or email
sandra.reen@dhp.virginia.gov.
Summary:
In this regulatory action,
the Board of Dentistry sets out the conditions and procedures for assessment of
disciplinary costs relating to investigation and monitoring of a licensee for
whom there is a finding that a violation of law or regulation has occurred. The
hourly costs for an investigation or monitoring will be set out annually in a
guidance document, and then costs will be calculated for each case and assessed
as a part of an order. Costs for monitoring and investigation will not exceed
the statutory limit of $5,000.
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.
18VAC60-20-18. Recovery of
disciplinary costs.
A. Assessment of cost for
investigation of a disciplinary case.
1. In any disciplinary
case in which there is a finding of a violation against a licensee or
registrant, the board may assess the hourly costs relating to investigation of
the case by the Enforcement Division of the Department of Health Professions
and, if applicable, the costs for hiring an expert witness and reports generated
by such witness.
2. The imposition of
recovery costs relating to an investigation shall be included in the order from
an informal or formal proceeding or as part of a consent order agreed to by the
parties. The schedule for payment of investigative costs imposed shall be set
forth in the order.
3. At the end of each
fiscal year, the board shall calculate the average hourly cost for enforcement
that is chargeable to investigation of complaints filed against its regulants
and shall state those costs in a guidance document to be used in imposition of
recovery costs. The average hourly cost multiplied by the number of hours spent
in investigating the specific case of a respondent shall be used in the
imposition of recovery costs.
B. Assessment of cost for
monitoring a licensee or registrant.
1. In any disciplinary
case in which there is a finding of a violation against a licensee or
registrant and in which terms and conditions have been imposed, the costs for
monitoring of a licensee or registrant may be charged and shall be calculated
based on the specific terms and conditions and the length of time the licensee
or registrant is to be monitored.
2. The imposition of
recovery costs relating to monitoring for compliance shall be included in the
board order from an informal or formal proceeding or as part of a consent order
agreed to by the parties. The schedule for payment of monitoring costs imposed
shall be set forth in the order.
3. At the end of each
fiscal year, the board shall calculate the average costs for monitoring of
certain terms and conditions, such as acquisition of continuing education, and
shall set forth those costs in a guidance document to be used in the imposition
of recovery costs.
C. Total of assessment.
In accordance with § 54.1-2708.2 of the Code of Virginia, the total of
recovery costs for investigating and monitoring a licensee or registrant shall
not exceed $5,000, but shall not include the fee for inspection of dental
offices and returned checks as set forth in 18VAC60-20-30 or collection costs
incurred for delinquent fines and fees.
VA.R. Doc. No. R10-2178; Filed
September 24, 2012, 3:01 p.m.
Fast-Track
Regulation
Title of Regulation:
18VAC60-20. Regulations Governing Dental Practice (amending
18VAC60-20-195).
Statutory Authority: § 54.1-2400
of the Code of Virginia.
Public Hearing Information:
No public hearings are scheduled.
Public Comment Deadline:
November 21, 2012.
Effective Date:
December 6, 2012.
Agency Contact: Sandra
Reen, Executive Director, Board of Dentistry, 9960 Mayland Drive, Suite 300,
Richmond, VA 23233-1463, telephone (804) 367-4538, FAX (804) 527-4428, or email
sandra.reen@dhp.virginia.gov.
Basis: Section
54.1-2400 of the Code of Virginia provides the Board of Dentistry the authority
to promulgate regulations to administer the regulatory system. The Dental
Practice Act (Chapter 27 of Title 54.1) permits the practice of dental
assistants.
Purpose: The purpose of
the amended regulation is to state more clearly the qualifications necessary
for an unlicensed person to obtain certification in radiation safety. Without
the amendments, dental hygiene and dental assisting programs are not clearly
authorized to offer radiation safety courses. Persons who want to become dental
assistants have fewer options to qualify them to place and expose dental
x-rays, so there is concern about unavailability of qualified persons to
perform those tasks in dental offices.
Additionally, the current
regulations are unclear about which course and examination from the Dental
Assisting National Board is acceptable. Without clarity in regulation, a person
may present himself as "certified" by a short, three-hour refresher
course, rather than the Radiation Health and Safety Review Course (12 hours)
intended to cover the full scope of dental radiation safety. Such inadequate
preparation could endanger the health and safety of dental patients throughout
the Commonwealth.
Rationale for Using
Fast-Track Process: The fast-track rulemaking process is necessary because
all parties agree that recent changes to 18VAC60-20-195 eliminating
"board-approved" courses and examinations has resulted in a reduction
in the availability of radiation safety certification for unlicensed persons
who assist in dental offices. The rule proposed by fast-track action is
supported by submission of three petitions for rulemaking and numerous comments
in support of those petitions.
Substance: The proposed
amendments clarify the qualifications necessary for an unlicensed person to
obtain certification in radiation safety. The proposal includes options for (i)
a course and examination offered by a dental assisting or dental hygiene
program accredited by the Commission on Dental Accreditation and (ii) a specific
course provided by the Dental Assisting National Board.
Issues: The primary
advantage to the public is a regulation that clearly states the qualification
options for persons who will be employed by dentists to expose x-rays in their
offices. If clearly stated and accurate, the options for certification will be
more attainable and offer greater protection for the public. The primary
advantage to the agency is clarity in the rules to reduce the number of
questions and be responsive to petitions. There are no disadvantages to the
public or the agency.
Department of Planning and
Budget's Economic Impact Analysis:
Summary of the Proposed
Amendments to Regulation. The Board of Dentistry (Board) proposes to clarify
the qualifications necessary for an unlicensed person to obtain certification
in radiation safety.
Result of Analysis. The
benefits likely exceed the costs for all proposed changes.
Estimated Economic Impact. In
January 2011, the State Council of Higher Education (SCHEV) sought
clarification from the Board about courses offered in dental radiation that
claim to be in compliance with regulatory requirements of the Board. The
Executive Director of the Board, after consultation with counsel, informed
SCHEV that, in fact, the Board has no statutory authority to approve radiation
safety courses and that regulations incorrectly state that there are guidelines
or criteria for such approval.
Given the dilemma created by
the existence of a regulation for which statutory authority does not exist and
the problems for students who want to be certified and for schools seeking to
offer radiation safety courses, the Board acted to eliminate option (iii) in
Section 195 that references compliance with guidelines of the Board. Three
options for radiation safety certification remain: 1) completion of a course
and examination recognized by the Commission on Dental Accreditation of the
American Dental Association, 2) certification by the American Registry of
Radiologic Technologists, or 3) satisfactorily completed a radiation course and
passed an examination given by the Dental Assisting National Board.
Subsequently, the Board
received three petitions for rulemaking asserting that the elimination of a
Board approved course and examination had created a dearth of available courses
and a hardship for persons who wanted to be certified to expose x-rays. To
resolve the problem in the short term, the Board decided to issue a guidance
document stating that it interprets the "course or examination recognized
by the Commission on Dental Accreditation of the American Dental
Association" to include a "course with examination provided by a
dental assisting, dental hygiene or dentistry program accredited by the
Commission on Dental Accreditation of the American Dental Association."
(Guidance document 60-20).
This interpretation will allow
Commission on Dental Accreditation of the American Dental Association
(CODA)-accredited dental assisting and dental hygiene programs to offer a
dental radiation course in order to certify persons to place or expose dental
x-ray film in dental offices. Since CODA does not "recognize" courses
or examination, the language in the current regulation remains incorrect and
confusing. Therefore the Board proposes to amend Section 195 to clarify the authority
of institutions with CODA-accredited dental programs to offer courses in
radiation safety.
Additionally, regulations of
the Department of Health for radiation protection specify that an x-ray machine
can only be operated by a licensee of the Department of Health Professions or,
in the case of a dental assistant, by someone who complies with the radiation
certification requirements for Section 195 of 18VAC60-20-10 et seq. Therefore,
it is necessary for someone to be licensed or qualified under Section 195 in order
to place and expose x-rays in dental offices.
Without the amendments, dental
hygiene and dental assisting programs are not clearly authorized to offer
radiation safety courses. Persons who want to become dental assistants have
fewer options to qualify them to place and expose dental x-rays, so there is
concern about unavailability of qualified persons to perform those tasks in
dental offices. Thus the proposed amendments are clearly beneficial and do not
introduce any new cost.
Businesses and Entities Affected.
The proposed amendments potentially affect persons interested in employment as
dental assistants or chair-side assistants who take dental x-rays in dental
offices. Since the Department of Health Professions does not regulate dental
assistants who take dental x-rays, there is no estimate of the number of
positions available and the number of persons who might seek training in
radiation safety. There are currently 6,392 licensed dentists in the
Commonwealth many of whom likely employ staff who will seek radiation safety
certification.
Localities Particularly
Affected. The proposed amendments do not disproportionately affect particular
localities.
Projected Impact on
Employment. The proposed amendments reduce the likelihood that persons
interested in employment as dental assistants or chair-side assistants who take
dental x-rays are unable to find certification sufficient radiation safety
training. Thus, the proposed amendments may have a moderate positive impact on
employment.
Effects on the Use and Value
of Private Property. The proposed amendments are unlikely to significantly
affect the value of private property.
Small Businesses: Costs and
Other Effects. The proposed amendments reduce the likelihood that persons
interested in employment as dental assistants or chair-side assistants who take
dental x-rays are unable to find approved training. Thus, the proposed
amendments may moderately reduce potential costs for dental practices to obtain
certification-sufficient radiation safety training for staff.
Small Businesses: Alternative
Method that Minimizes Adverse Impact. The proposed amendments do not adversely
affect small businesses.
Real Estate Development Costs.
The proposed amendments 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 DPB's best estimate of these economic impacts.
Agency's Response to
Economic Impact Analysis: The Board of Dentistry concurs with the analysis
of the Department of Planning and Budget for the proposed regulation,
18VAC60-20, Regulations Governing the Practice of Dentistry and Dental Hygiene,
relating to radiation safety certification.
Summary:
The proposed amendments
clarify the qualifications necessary for an unlicensed person to obtain
certification in radiation safety. The proposal includes options for (i) a
course and examination offered by a dental assisting or dental hygiene program
accredited by the Commission on Dental Accreditation or (ii) a specific course
provided by the Dental Assisting National Board.
18VAC60-20-195. Radiation
certification.
No person not otherwise
licensed by this board shall place or expose dental x-ray film unless he has one
of the following: (i) satisfactorily completed satisfactory
completion of a radiation safety course or and
examination recognized given by an institution that maintains
a program in dental assisting, dental hygiene, or dentistry accredited by
the Commission on Dental Accreditation of the American Dental Association, (ii)
been certified certification by the American Registry of
Radiologic Technologists, or (iii) satisfactorily completed a
radiation course and passed an satisfactory completion of the Radiation
Health and Safety Review Course provided by the Dental Assisting National Board
or its affiliate and passage of the Radiation Health and Safety examination
given by the Dental Assisting National Board. Any certificate issued pursuant
to satisfying the requirements of this section shall be posted in plain view of
the patient.
VA.R. Doc. No. R13-2827; Filed
September 21, 2012, 11:48 a.m.
Final
Regulation
REGISTRAR'S NOTICE: The Board of Dentistry is claiming an
exclusion from the Administrative Process Act in accordance with § 2.2-4006
A 4 a of the Code of Virginia, which excludes regulations that are necessary to
conform to changes in Virginia statutory law where no agency discretion is
involved. The Board of Dentistry will receive, consider, and respond to
petitions by any interested person at any time with respect to reconsideration
or revision.
Title of Regulation:
18VAC60-20. Regulations Governing Dental Practice (amending
18VAC60-20-20, 18VAC60-20-30, 18VAC60-20-70, 18VAC60-20-90, 18VAC60-20-91).
Statutory Authority:
18VAC60-20-20, 18VAC60-20-70,
and 18VAC60-20-90: § 54.1-2400 of the Code of Virginia.
18VAC60-20-30: §§ 54.1-2400
and 54.1-2708.3 of the Code of Virginia.
18VAC60-20-91: §§ 54.1-2400
and 54.1-2711.1 of the Code of Virginia.
Effective Date:
November 21, 2012.
Agency Contact: Sandra
Reen, Executive Director, Board of Dentistry, 9960 Mayland Drive, Suite 300,
Richmond, VA 23233-1463, telephone (804) 367-4538, FAX (804) 527-4428, or email
sandra.reen@dhp.virginia.gov.
Summary:
This action conforms the
requirements for temporary and faculty licenses to changes in the Code of
Virginia enacted by Chapters 20 and 116 of the 2012 Acts of Assembly. The
amendments (i) clarify requirements for the board to issue a faculty license to
a qualified person from out of state to teach dentistry or dental hygiene in a
Virginia dental school or program, (ii) clarify what patient care activities
are allowed for a person enrolled in a Virginia dental education program who
has a temporary license to practice dentistry while in the program, and (iii)
specify that all parts of the National Dental Examination must be completed
prior to application for dental licensure.
Part II
Renewal and Fees
18VAC60-20-20. Renewal and
reinstatement.
A. Renewal fees. Every
person holding an active or inactive license or a dental assistant II
registration or a full-time faculty license shall, on or before March
31, renew his license or registration. Every person holding a teacher's
license, temporary resident's license, a restricted volunteer license to
practice dentistry or dental hygiene, or a temporary permit to practice dentistry
or dental hygiene shall, on or before June 30, request renewal of his license.
1. The fee for renewal of an
active license or permit to practice or teach dentistry shall be $285, and the
fee for renewal of an active license or permit to practice or teach dental
hygiene shall be $75. The fee for renewal of registration as a dental assistant
II shall be $50.
2. The fee for renewal of an
inactive license shall be $145 for dentists and $40 for dental hygienists. The
fee for renewal of an inactive registration as a dental assistant II shall be
$25.
3. The fee for renewal of a
restricted volunteer license shall be $15.
4. The application fee for
temporary resident's license shall be $60. The annual renewal fee shall be $35
a year. An additional fee for late renewal of licensure shall be $15.
B. Late fees. Any person who
does not return the completed form and fee by the deadline required in
subsection A of this section shall be required to pay an additional late fee of
$100 for dentists with an active license, $25 for dental hygienists with an
active license, and $20 for a dental assistant II with active registration. The
late fee shall be $50 for dentists with an inactive license, $15 for dental
hygienists with an inactive license, and $10 for a dental assistant II with an
inactive registration. The board shall renew a license or dental assistant II
registration if the renewal form, renewal fee, and late fee are received within
one year of the deadline required in subsection A of this section.
C. Reinstatement fees and
procedures. The license or registration of any person who does not return the
completed renewal form and fees by the deadline required in subsection A of
this section shall automatically expire and become invalid and his practice as
a dentist, dental hygienist, or dental assistant II shall be illegal.
1. Any person whose license
or dental assistant II registration has expired for more than one year and who
wishes to reinstate such license or registration shall submit to the board a
reinstatement application and the reinstatement fee of $500 for dentists, $200
for dental hygienists, or $125 for dental assistants II.
2. With the exception of
practice with a restricted volunteer license as provided in §§ 54.1-2712.1 and
54.1-2726.1 of the Code of Virginia, practicing in Virginia with an expired
license or registration may subject the licensee to disciplinary action by the
board.
3. The executive director may
reinstate such expired license or registration provided that the applicant can
demonstrate continuing competence, that no grounds exist pursuant to § 54.1-2706
of the Code of Virginia and 18VAC60-20-170 to deny said reinstatement, and that
the applicant has paid the unpaid reinstatement fee and any fines or
assessments. Evidence of continuing competence shall include hours of
continuing education as required by subsection H of 18VAC60-20-50 and may also
include evidence of active practice in another state or in federal service or
current specialty board certification.
D. Reinstatement of a license
or dental assistant II registration previously revoked or indefinitely
suspended. Any person whose license or registration has been revoked shall
submit to the board for its approval a reinstatement application and fee of
$1,000 for dentists, $500 for dental hygienists, and $300 for dental assistants
II. Any person whose license or registration has been indefinitely suspended
shall submit to the board for its approval a reinstatement application and fee
of $750 for dentists, $400 for dental hygienists, and $250 for dental
assistants II.
18VAC60-20-30. Other fees.
A. Dental licensure
application fees. The application fee for a dental license by examination, a
license to teach dentistry, a full-time faculty license, or a
temporary permit as a dentist shall be $400. The application fee for dental
license by credentials shall be $500.
B. Dental hygiene licensure
application fees. The application fee for a dental hygiene license by
examination, a faculty license to teach dental hygiene, or a temporary
permit as a dental hygienist shall be $175. The application fee for dental
hygienist license by endorsement shall be $275.
C. Dental assistant II
registration application fee. The application fee for registration as a dental
assistant II shall be $100.
D. Wall certificate.
Licensees desiring a duplicate wall certificate or a dental assistant II
desiring a wall certificate shall submit a request in writing stating the
necessity for a wall certificate, accompanied by a fee of $60.
E. Duplicate license or
registration. Licensees or registrants desiring a duplicate license or
registration shall submit a request in writing stating the necessity for such
duplicate, accompanied by a fee of $20. If a licensee or registrant maintains
more than one office, a notarized photocopy of a license or registration may be
used.
F. Licensure or registration
certification. Licensees or registrants requesting endorsement or certification
by this board shall pay a fee of $35 for each endorsement or certification.
G. Restricted license. Restricted
license issued in accordance with § 54.1-2714 of the Code of Virginia shall be
at a fee of $285.
H. Restricted volunteer
license. The application fee for licensure as a restricted volunteer dentist or
dental hygienist issued in accordance with § 54.1-2712.1 or
§ 54.1-2726.1 of the Code of Virginia shall be $25.
I. Returned check. The fee
for a returned check shall be $35.
J. Inspection fee. The fee
for an inspection of a dental office shall be $350.
K. Mobile dental clinic or
portable dental operation. The application fee for registration of a mobile
dental clinic or portable dental operation shall be $250. The annual renewal
fee shall be $150 and shall be due by December 31. A late fee of $50 shall be
charged for renewal received after that date.
18VAC60-20-70. Licensure
examinations; registration certification.
A. Dental examinations.
1. All applicants shall have
successfully completed Part I and Part II all parts of the
examinations of the Joint Commission on National Dental Examinations prior to
making application to this board.
2. All applicants to practice
dentistry shall satisfactorily pass the complete board-approved examinations in
dentistry. Applicants who successfully completed the board-approved
examinations five or more years prior to the date of receipt of their
applications for licensure by this board may be required to retake the
examinations or take board-approved continuing education unless they
demonstrate that they have maintained clinical, ethical and legal practice for
48 of the past 60 months immediately prior to submission of an application for
licensure.
3. If the candidate has
failed any section of a board-approved examination three times, the candidate
shall complete a minimum of 14 hours of additional clinical training in each
section of the examination to be retested in order to be approved by the board
to sit for the examination a fourth time.
B. Dental hygiene
examinations.
1. All applicants are
required to successfully complete the dental hygiene examination of the Joint Commission
on National Dental Examinations prior to making application to this board for
licensure.
2. All applicants to practice
dental hygiene shall successfully complete the board-approved examinations in
dental hygiene, except those persons eligible for licensure pursuant to
18VAC60-20-80.
3. If the candidate has
failed any section of a board-approved examination three times, the candidate
shall complete a minimum of seven hours of additional clinical training in each
section of the examination to be retested in order to be approved by the board
to sit for the examination a fourth time.
C. Dental assistant II
certification. All applicants for registration as a dental assistant II shall
provide evidence of a current credential as a Certified Dental Assistant (CDA)
conferred by the Dental Assisting National Board or another certification from
a credentialing organization recognized by the American Dental Association and
acceptable to the board, which was granted following passage of an examination
on general chairside assisting, radiation health and safety, and infection
control.
D. All applicants who
successfully complete the board-approved examinations five or more years prior
to the date of receipt of their applications for licensure or registration by
this board may be required to retake the board-approved examinations or take
board-approved continuing education unless they demonstrate that they have
maintained clinical, ethical, and legal practice for 48 of the past 60 months
immediately prior to submission of an application for licensure or registration.
E. All applicants for
licensure by examination or registration as a dental assistant II shall be
required to attest that they have read and understand and will remain current
with the applicable Virginia dental and dental hygiene laws and the regulations
of this board.
18VAC60-20-90. Temporary
permit, teacher's license, and full-time faculty license.
A. A temporary permit shall
be issued only for the purpose of allowing dental and dental hygiene practice
as limited by §§ 54.1-2715 and 54.1-2726 of the Code of Virginia.
B. A temporary permit will
not be renewed unless the permittee shows that extraordinary circumstances
prevented the permittee from taking the licensure examination during the term
of the temporary permit.
C. A full-time faculty
license shall be issued to any dentist who meets the entry requirements of §
54.1-2713 of the Code of Virginia, or to any dental hygienist who
meets the entry requirements of § 54.1-2725 of the Code of Virginia and
who is certified by the dean of a dental school or the program director of a
program accredited by the Commission on Dental Accreditation of the American
Dental Association in the Commonwealth and who is serving full
time to be on the faculty of a the dental school or
its affiliated clinics intramurally in the Commonwealth or accredited
program. The dean's or program director's certification shall include an
assessment of the clinical competency and experience of the applicant.
1. A dentist or dental
hygienist holding a faculty license may perform activities that are part of his
faculty duties, including all patient care activities associated with teaching,
research, and the delivery of patient care, that take place only within
educational facilities owned or operated by or affiliated with the dental
school or program.
1. 2. A full-time
faculty license shall remain valid only while the license holder is serving full
time on the faculty of a dental school or accredited program in the
Commonwealth. When any such license holder ceases to continue serving full
time on the faculty of the dental school or program for which the
license was issued, the licensee shall surrender the license, which shall be
null and void upon termination of full-time employment. The dean of the
dental school or program director shall notify the board within five
working days of such termination of full-time employment.
2. 3. A full-time
faculty licensee working in a faculty intramural clinic facility owned
or operated by or affiliated with a dental school or accredited program
may accept a fee for service.
D. A temporary permit, a
teacher's license issued pursuant to § 54.1-2714 of the Code of
Virginia, and a full-time faculty license may be revoked for any
grounds for which the license of a regularly licensed dentist or dental
hygienist may be revoked and for any act indicating the inability of the
permittee or licensee to practice dentistry that is consistent with the
protection of the public health and safety as determined by the generally
accepted standards of dental practice in Virginia.
E. Applicants for a full-time
faculty license or temporary permit shall be required to attest to having read
and understand and to remaining current with the laws and the regulations
governing the practice of dentistry in Virginia.
18VAC60-20-91. Temporary
licenses to persons enrolled in advanced dental education programs.
A. A dental intern, resident
or postdoctoral certificate or degree candidate applying for a temporary
license to practice in Virginia shall:
1. Successfully complete a
D.D.S. or D.M.D. dental degree program required for admission to board-approved
examinations and submit a letter of confirmation from the registrar of the
school or college conferring the professional degree, or official transcripts
confirming the professional degree and date the degree was received.
2. Submit submit
a recommendation from the dean of the dental school or the director of the accredited
graduate program accredited by the Commission on Dental Accreditation
specifying the applicant's acceptance as an intern, resident or post-doctoral
certificate or degree candidate in an advanced dental education program. The
beginning and ending dates of the internship, residency or post-doctoral
program shall be specified.
B. The temporary license
applies only to practice in the hospital or outpatient clinics of the hospital
or dental school where the internship, residency or post-doctoral time is
served. Outpatient clinics in a hospital or other facility must be a
recognized part of an advanced dental education program owned or
operated by, or affiliated with, the dental school or program.
C. The temporary license may
be renewed annually, for up to five times, upon the recommendation of the dean
of the dental school or director of the accredited graduate program,
certifying continued enrollment in the accredited advanced education program.
D. The temporary license
holder shall be responsible and accountable at all times to a licensed dentist,
who is a member of the staff where the internship, residency or postdoctoral
candidacy is served. The temporary licensee is prohibited from employment
outside of the advanced dental education program where a full license is
required.
E. The temporary license
holder shall abide by the accrediting requirements for an advanced dental
education program as approved by the Commission on Dental Accreditation of the
American Dental Association.
VA.R. Doc. No. R13-3373; Filed
September 20, 2012, 10:12 a.m.
Final
Regulation
REGISTRAR'S NOTICE: The Board of Dentistry is claiming an
exemption from the Administrative Process Act in accordance with § 2.2-4006
A 4 a of the Code of Virginia, which excludes regulations that are necessary to
conform to changes in Virginia statutory law where no agency discretion is
involved. The Board of Dentistry will receive, consider, and respond to
petitions by any interested person at any time with respect to reconsideration
or revision.
Title of Regulation:
18VAC60-20. Regulations Governing Dental Practice (amending
18VAC60-20-220).
Statutory Authority: §§ 54.1-2400
and 54.1-2722 of the Code of Virginia.
Effective Date:
November 21, 2012.
Agency Contact: Sandra
Reen, Executive Director, Board of Dentistry, 9960 Mayland Drive, Suite 300,
Richmond, VA 23233-1463, telephone (804) 367-4538, FAX (804) 527-4428, or email
sandra.reen@dhp.virginia.gov.
Summary:
Chapter 102 of the 2012
Acts of Assembly requires the Board of Dentistry to adopt the protocol of the
Virginia Department of Health (VDH) for remote supervision by a dentist of the
practice of a dental hygienist employed by VDH. This action amends
18VAC60-20-220, relating to the practice of dental hygienists, to incorporate
the VDH protocol by reference.
18VAC60-20-220. Dental
hygienists.
A. The following duties
shall only be delegated to dental hygienists under direction and may be
performed under indirect supervision:
1. Scaling and/or root
planing of natural and restored teeth using hand instruments, rotary
instruments and ultrasonic devices under anesthesia.
2. Performing an initial
examination of teeth and surrounding tissues including the charting of carious
lesions, periodontal pockets or other abnormal conditions for assisting the
dentist in the diagnosis.
3. Administering nitrous
oxide or local anesthesia by dental hygienists qualified in accordance with the
requirements of 18VAC60-20-81.
B. The following duties
shall only be delegated to dental hygienists and may be delegated by written
order in accordance with § 54.1-3408 of the Code of Virginia to be performed
under general supervision when the dentist may not be present:
1. Scaling and/or root
planing of natural and restored teeth using hand instruments, rotary
instruments and ultrasonic devices.
2. Polishing of natural and
restored teeth using air polishers.
3. Performing a clinical
examination of teeth and surrounding tissues including the charting of carious
lesions, periodontal pockets or other abnormal conditions for further
evaluation and diagnosis by the dentist.
4. Subgingival irrigation or
subgingival application of topical Schedule VI medicinal agents.
5. Duties appropriate to the
education and experience of the dental hygienist and the practice of the
supervising dentist, with the exception of those listed in subsection A of this
section and those listed as nondelegable in 18VAC60-20-190.
C. Nothing in this section
shall be interpreted so as to prevent a licensed dental hygienist from
providing educational services, assessment, screening or data collection for
the preparation of preliminary written records for evaluation by a licensed
dentist.
D. A dentist hygienist
employed by the Virginia Department of Health may provide educational and
preventative dental care under remote supervision, as defined in subsection D
of § 54.1-2722 of the Code of Virginia, of a dentist employed by the
Virginia Department of Health and in accordance with the Protocol adopted by
the Commissioner of Health for Dental Hygienists to Practice in an Expanded
Capacity under Remote Supervision by Public Health Dentists, September 2012,
which is hereby incorporated by reference.
DOCUMENTS INCORPORATED BY
REFERENCE (18VAC60-20)
Current Dental Terminology 2007-2008,
Code on Dental Procedures and Nomenclature, American Dental Association.
Requirements for Recognition
of Dental Specialties and National Certifying Boards for Dental Specialists,
October 2001, American Dental Association.
Protocol adopted by Virginia Department of Health
(VDH) for Dental Hygienists to Practice in an Expanded Capacity under Remote
Supervision by Public Health Dentists, September 2012.
VA.R. Doc. No. R13-3383; Filed
September 20, 2012, 10:13 a.m.
BOARD OF
MEDICINE
Final Regulation
Title of Regulation:
18VAC85-20. Regulations Governing the Practice of Medicine, Osteopathic
Medicine, Podiatry, and Chiropractic (amending
18VAC85-20-22, 18VAC85-20-120, 18VAC85-20-121, 18VAC85-20-131, 18VAC85-20-140,
18VAC85-20-220, 18VAC85-20-235, 18VAC85-20-290, 18VAC85-20-400).
Statutory Authority: § 54.1-2400
of the Code of Virginia.
Effective Date:
November 21, 2012.
Agency Contact: William
L. Harp, M.D., Executive Director, Board of Medicine, 9960 Mayland Drive, Suite
300, Richmond, VA 23233-1463, telephone (804) 367-4621, FAX (804) 527-4429, or
email william.harp@dhp.virginia.gov.
Summary:
The amendments (i) clarify
that the cost for reinstatement of licensure includes both the reinstatement
application fee and a late fee by combining the fees; (ii) eliminate the
requirement for applicants discharged from the military to submit discharge
papers; (iii) remove a restriction that only allows interns and residents to
renew licensure five times; (iv) remove the requirement that individuals who
are renewing their licenses also fill out a form that lists their continuing
education activities; and (v) create an exception to the 10-hour definition of
immediate use so that drugs that include a fat emulsion must be used within one
hour of being mixed, diluted, or reconstituted.
Summary of Public Comments
and Agency's Response: No public comments were received by the promulgating
agency.
18VAC85-20-22. Required fees.
A. Unless otherwise
provided, fees established by the board shall not be refundable.
B. All examination fees
shall be determined by and made payable as designated by the board.
C. The application fee for
licensure in medicine, osteopathic medicine, and podiatry shall be $302, and
the fee for licensure in chiropractic shall be $277.
D. The fee for a temporary
authorization to practice medicine pursuant to § 54.1-2927 B (i) and (ii) of
the Code of Virginia shall be $25.
E. The application fee for a
limited professorial or fellow license issued pursuant to 18VAC85-20-210 shall
be $55. The annual renewal fee shall be $35. An additional fee for late renewal
of licensure shall be $15.
F. The application fee for a
limited license to interns and residents pursuant to 18VAC85-20-220 shall be
$55. The annual renewal fee shall be $35. An additional fee for late renewal of
licensure shall be $15.
G. The fee for a duplicate
wall certificate shall be $15; the fee for a duplicate license shall be $5.
H. The fee for biennial
renewal shall be $337 for licensure in medicine, osteopathic medicine,
and podiatry and $312 for licensure in chiropractic, due in each even-numbered
year in the licensee's birth month. An additional fee for processing a late
renewal application within one renewal cycle shall be $115 for licensure in
medicine, osteopathic medicine, and podiatry and $105 for licensure in
chiropractic.
I. The fee for requesting
reinstatement of licensure or certification pursuant to § 54.1-2408.2 of
the Code of Virginia or for requesting reinstatement after any petition to
reinstate the certificate or license of any person has been denied shall be
$2,000.
J. The fee for reinstatement
of a license issued by the Board of Medicine pursuant to § 54.1-2904 of the
Code of Virginia that has expired for a period of two years or more shall be $382
$497 for licensure in medicine, osteopathic medicine, and
podiatry ($382 for reinstatement application in addition to the late fee of
$115) and $367 $472 for licensure in chiropractic ($367
for reinstatement application in addition to the late fee of $105).
The fee shall be submitted with an application for licensure reinstatement.
K. The fee for a letter of
verification of licensure to another jurisdiction shall be $10, and the
fee for certification of grades to another jurisdiction by the board shall be
$25. Fees shall be due and payable upon submitting a request for verification
or certification to the board.
L. The fee for biennial
renewal of an inactive license shall be $168, due in the licensee's birth
month. An additional fee for late renewal of licensure shall be $55 for each
renewal cycle.
M. The fee for an
application or for the biennial renewal of a restricted volunteer license shall
be $75, due in the licensee's birth month. An additional fee for late renewal
of licensure shall be $25 for each renewal cycle.
N. The fee for a returned
check shall be $35.
Part III
Licensure: General and Educational Requirements
18VAC85-20-120. Prerequisites
to licensure.
A. Every applicant
for licensure shall:
1. Meet the educational
requirements specified in 18VAC85-20-121 or 18VAC85-20-122 and the examination
requirements as specified for each profession in 18VAC85-20-140;
2. File the complete
application and appropriate fee as specified in 18VAC85-20-22 with the
executive director of the board; and
3. File the required
credentials with the executive director by a date established by the board
and as specified below:
a. Graduates of an approved
institution shall file:
(1) Documentary evidence that
he received a degree from the institution; and
(2) A complete chronological
record of all professional activities since graduation from professional
school, giving location, dates, and types of services performed.
b. Graduates of an
institution not approved by an accrediting agency recognized by the board shall
file:
(1) Documentary evidence of
education as required by 18VAC85-20-122;
(2) A translation made and
endorsed by a consul or by a professional translating service of all such
documents not in the English language; and
(3) A complete chronological
record of all professional activities since graduation from professional
school, giving location, dates, and types of services performed.
B. Every applicant
discharged from the United States military service within the last five years
shall in addition file with his application a notarized copy of his discharge
papers.
18VAC85-20-121. Educational
requirements: Graduates of approved institutions.
A. Such an applicant shall
be a graduate of an institution that meets the criteria appropriate to the
profession in which he seeks to be licensed, which are as follows:
1. For licensure in medicine.
The institution shall be approved or accredited by the Liaison Committee on
Medical Education or other official accrediting body recognized by the American
Medical Association, or by the Committee for the Accreditation of Canadian
Medical Schools or its appropriate subsidiary agencies or any other
organization approved by the board.
2. For licensure in
osteopathic medicine. The institution shall be approved or accredited by the
Bureau of Professional Education of the American Osteopathic Association or any
other organization approved by the board.
3. For licensure in podiatry.
The institution shall be approved and recommended by the Council on Podiatry
Podiatric Medical Education of the American Podiatry Podiatric
Medical Association or any other organization approved by the board.
B. Such an applicant for
licensure in medicine, osteopathic medicine, or podiatry shall provide evidence
of having completed one year of satisfactory postgraduate training as an intern
or resident in a hospital or health care facility offering approved internship
and residency training programs when such a program is approved by an
accrediting agency recognized by the board for internship and residency
training.
C. For licensure in chiropractic.
1. If the applicant
matriculated in a chiropractic college on or after July 1, 1975, he shall be a
graduate of a chiropractic college accredited by the Commission on
Accreditation of the Council of Chiropractic Education or any other organization
approved by the board.
2. If the applicant
matriculated in a chiropractic college prior to July 1, 1975, he shall be a
graduate of a chiropractic college accredited by the American Chiropractic
Association or the International Chiropractic Association or any other
organization approved by the board.
18VAC85-20-131. Requirements
to practice acupuncture.
A. To be qualified to
practice acupuncture, licensed doctors of medicine, osteopathic medicine,
podiatry, and chiropractic shall first have obtained at least 200 hours of
instruction in general and basic aspects of the practice of acupuncture,
specific uses and techniques of acupuncture, and indications and
contraindications for acupuncture administration. After December 5, 2001, at
At least 50 hours of the 200 hours of instruction shall be clinical
experience supervised by a person legally authorized to practice acupuncture in
any jurisdiction of the United States. Persons who held a license as a
physician acupuncturist prior to July 1, 2000, shall not be required to obtain
the 50 hours of clinical experience.
B. The use of acupuncture as
a treatment modality shall be appropriate to the doctor's scope of practice as
defined in § 54.1-2900 of the Code of Virginia.
Part IV
Licensure: Examination Requirements
18VAC85-20-140. Examinations,
general.
A. The Executive Director of
the Board of Medicine or his designee shall review each application for
licensure and in no case shall an applicant be licensed unless there is
evidence that the applicant has passed an examination equivalent to the
Virginia Board of Medicine examination required at the time he was examined and
meets all requirements of Part III (18VAC85-20-120 et seq.) of this chapter. If
the executive director or his designee is not fully satisfied that the
applicant meets all applicable requirements of Part III of this chapter and
this part, he shall refer the application to the Credentials Committee for a
determination on licensure.
B. A Doctor of Medicine or
Osteopathic Medicine who has passed the examination of the National Board of
Medical Examiners or of the National Board of Osteopathic Medical Examiners, FLEX
Federation Licensing Examination, or the United States Medical Licensing
Examination, or the examination of the Licensing Medical Council of Canada or
other such examinations as prescribed in § 54.1-2913.1 of the Code of Virginia
may be accepted for licensure.
C. A Doctor of Podiatry who
has passed the National Board of Podiatric Medical Examiners examination and
has passed a clinical competence examination equivalent to the Virginia
Board of Medicine examination acceptable to the board may be
accepted for licensure.
D. A Doctor of Chiropractic
who has met the requirements of one of the following may be accepted for
licensure:
1. An applicant who graduated
after January 31, 1996, shall document successful completion of Parts I, II,
III, and IV of the National Board of Chiropractic Examiners examination (NBCE).
2. An applicant who graduated
from January 31, 1991, to January 31, 1996, shall document successful
completion of Parts I, II, and III of the National Board of Chiropractic
Examiners examination (NBCE).
3. An applicant who graduated
from July 1, 1965, to January 31, 1991, shall document successful completion of
Parts I, II, and III of the NBCE, or Parts I and II of the NBCE and the Special
Purpose Examination for Chiropractic (SPEC), and document evidence of licensure
in another state for at least two years immediately preceding his application.
4. An applicant who graduated
prior to July 1, 1965, shall document successful completion of the SPEC, and
document evidence of licensure in another state for at least two years
immediately preceding his application.
E. The following provisions
shall apply for applicants taking Step 3 of the United States Medical Licensing
Examination or the Podiatric Medical Licensing Examination:
1. Applicants for licensure
in medicine and osteopathic medicine may be eligible to sit for Step 3 of the
United States Medical Licensing Examination (USMLE) upon evidence of having
passed Steps 1 and 2 of the United States Medical Licensing Examination
(USMLE).
2. Applicants who sat for the
United States Medical Licensing Examination (USMLE) shall provide evidence of
passing Steps 1, 2, and 3 within a 10-year period unless the applicant is board
certified in a specialty approved by the American Board of Medical Specialties or
the Bureau of Osteopathic Specialists of the American Osteopathic Association.
3. Applicants shall have
completed the required training or be engaged in their final year of required
postgraduate training.
4. Applicants for licensure
in podiatry shall provide evidence of having passed the National Board of
Podiatric Medical Examiners Examination to be eligible to sit for the Podiatric
Medical Licensing Examination (PMLEXIS) in Virginia.
18VAC85-20-220. Temporary
licenses to interns and residents.
A. An intern or resident
applying for a temporary license to practice in Virginia shall:
1. Successfully complete the
preliminary academic education required for admission to examinations given by
the board in his particular field of practice, and submit a letter of
confirmation from the registrar of the school or college conferring the
professional degree, or official transcripts confirming the professional degree
and date the degree was received.
2. Submit a recommendation
from the applicant's chief or director of graduate medical education of the
approved internship or residency program specifying acceptance. The beginning
and ending dates of the internship or residency shall be specified.
3. Submit evidence of a
standard Educational Commission for Foreign Medical Graduates (ECFMG)
certificate or its equivalent if the candidate graduated from a school not
approved by an accrediting agency recognized by the board.
B. The intern or resident
license applies only to the practice in the hospital or outpatient clinics
where the internship or residency is served. Outpatient clinics in a hospital
or other facility must be a recognized part of an internship or residency
program.
C. The intern or resident
license shall be renewed annually upon the recommendation of the chief or
director of graduate medical education of the internship or residency program no
more than five times.
A residency program transfer
request shall be submitted to the board in lieu of a full application.
D. The extent and scope of
the duties and professional services rendered by the intern or resident shall
be confined to persons who are bona fide patients within the hospital or who
receive treatment and advice in an outpatient department of the hospital or
outpatient clinic where the internship or residency is served.
E. The intern and resident
shall be responsible and accountable at all times to a fully licensed member of
the staff where the internship or residency is served. The intern and resident
is prohibited from employment outside of the graduate medical educational
program where a full license is required.
F. The intern or resident
shall abide by the respective accrediting requirements of the internship or
residency as approved by the Liaison Council on Graduate Education of the
American Medical Association, American Osteopathic Association, American Podiatric
Medical Association, or Council on Chiropractic Education.
18VAC85-20-235. Continued
competency requirements for renewal of an active license.
A. In order to renew an
active license biennially on or after January 1, 2002, a practitioner
shall complete the Continued Competency Activity and Assessment Form
("Form") which is provided by the board and which shall indicate attest
to completion of at least 60 hours of continuing learning activities within
the two years immediately preceding renewal as follows:
1. A minimum of 30 of the 60
hours shall be in Type 1 activities or courses offered by an accredited sponsor
or organization sanctioned by the profession.
a. Type 1 hours in
chiropractic shall be clinical hours that are approved by a college or university
accredited by the Council on Chiropractic Education or any other organization
approved by the board.
b. Type 1 hours in podiatry
shall be accredited by the American Podiatric Medical Association, the American
Council of Certified Podiatric Physicians and Surgeons or any other
organization approved by the board.
2. No more than 30 of the 60
hours may be Type 2 activities or courses, which may or may not be approved by
an accredited sponsor or organization but which shall be chosen by the licensee
to address such areas as ethics, standards of care, patient safety, new medical
technology, and patient communication.
B. A practitioner shall be
exempt from the continuing competency requirements for the first biennial
renewal following the date of initial licensure in Virginia.
C. The practitioner shall
retain in his records the completed Form with all supporting
documentation for a period of six years following the renewal of an active
license.
D. The board shall
periodically conduct a random audit of at least 1.0% to 2.0% of its
active licensees to determine compliance. The practitioners selected for the
audit shall provide the completed Form and all supporting documentation
within 30 days of receiving notification of the audit.
E. Failure to comply with
these requirements may subject the licensee to disciplinary action by the
board.
F. The board may grant an
extension of the deadline for continuing competency requirements for up to one
year for good cause shown upon a written request from the licensee prior to the
renewal date.
G. The board may grant an
exemption for all or part of the requirements for circumstances beyond the
control of the licensee, such as temporary disability, mandatory military
service, or officially declared disasters.
H. The board may grant an
exemption for all or part of the requirements for a licensee who:
1. Is practicing solely in an
uncompensated position, provided his practice is under the direction of a
physician fully licensed by the board; or
2. Is practicing solely as a
medical examiner, provided the licensee obtains six hours of medical examiner
training per year provided by the Office of the Chief Medical Examiner.
18VAC85-20-290. Reporting of
medical malpractice judgments and settlements.
A. In compliance with requirements
of § 54.1-2910.1 of the Code of Virginia, a doctor of medicine, osteopathic
medicine, or podiatry licensed by the board shall report all medical
malpractice judgments and settlements of $10,000 or more than $10,000
in the most recent 10-year period within 30 days of the initial payment. A
doctor shall report a medical malpractice judgment or settlement of less than
$10,000 if any other medical malpractice judgment or settlement has been paid
by or for the licensee within the preceeding 12 months. Each report of a
settlement or judgment shall indicate:
1. The year the judgment or
settlement was paid.
2. The specialty in which the
doctor was practicing at the time the incident occurred that resulted in the
judgment or settlement.
3. The total amount of the
judgment or settlement in United States dollars.
4. The city, state, and
country in which the judgment or settlement occurred.
B. The board shall not
release individually identifiable numeric values of reported judgments or
settlements but shall use the information provided to determine the relative
frequency of judgments or settlements described in terms of the number of
doctors in each specialty and the percentage with malpractice judgments or
settlements within the most recent 10-year period. The statistical methodology
used will include any specialty with more than 10 judgments or settlements. For
each specialty with more than 10 judgments or settlements, the top 16% of the
judgments or settlements will be displayed as above average payments, the next
68% of the judgments or settlements will be displayed as average payments, and
the last 16% of the judgments or settlements will be displayed as below average
payments.
C. For purposes of reporting
required under this section, medical malpractice judgment and medical
malpractice settlement shall have the meanings ascribed in § 54.1-2900 of the
Code of Virginia. A medical malpractice judgment or settlement shall include:
1. A lump sum payment or the
first payment of multiple payments;
2. A payment made from
personal funds;
3. A payment on behalf of a
doctor of medicine, osteopathic medicine, or podiatry by a corporation or
entity comprised solely of that doctor of medicine, osteopathic medicine, or
podiatry; or
4. A payment on behalf of a
doctor of medicine, osteopathic medicine, or podiatry named in the claim
where that doctor is dismissed as a condition of, or in consideration of the
settlement, judgment or release. If a doctor is dismissed independently of the
settlement, judgment or release, then the payment is not reportable.
Part IX
Mixing, Diluting, or Reconstituting of Drugs for Administration
18VAC85-20-400. Requirements
for immediate-use sterile mixing, diluting, or reconstituting.
A. For the purposes of this
chapter, the mixing, diluting, or reconstituting of sterile manufactured drug
products when there is no direct contact contamination and administration
begins within 10 hours of the completion time of preparation shall be
considered immediate-use with the exception of drugs in fat emulsion for
which immediate use shall be one hour. If manufacturers' instructions or
any other accepted standard specifies or indicates an appropriate time between
preparation and administration of less than 10 hours, the mixing, diluting,
or reconstituting shall be in accordance with the lesser time. No direct
contact contamination means that there is no contamination from touch, gloves,
bare skin, or secretions from the mouth or nose. Emergency drugs used in
the practice of anesthesiology and administration of allergens may exceed 10
hours after completion of the preparation, provided administration does not
exceed the specified expiration date of a multiple use vial and there is
compliance with all other requirements of this section.
B. Doctors of medicine or
osteopathic medicine who engage in immediate-use mixing, diluting, or
reconstituting shall:
1. Utilize the practices and
principles of disinfection techniques, aseptic manipulations and solution
compatibility in immediate-use mixing, diluting, or reconstituting;
2. Ensure that all personnel
under their supervision who are involved in immediate-use mixing, diluting,
or reconstituting are appropriately and properly trained in and utilize the
practices and principles of disinfection techniques, aseptic manipulations, and
solution compatibility;
3. Establish and implement
procedures for verification of the accuracy of the product that has been mixed,
diluted, or reconstituted to include a second check performed by a doctor of
medicine or osteopathic medicine or a pharmacist, or by a physician assistant
or a registered nurse who has been specifically trained pursuant to subdivision
2 of this subsection in immediate-use mixing, diluting, or
reconstituting. Mixing, diluting, or reconstituting that is performed by
a doctor of medicine or osteopathic medicine, a pharmacist, or by a
specifically trained physician assistant or registered nurse or mixing,
diluting, or reconstituting of vaccines does not require a second check;
4. Provide a designated,
sanitary work space and equipment appropriate for aseptic manipulations;
5. Document or ensure that
personnel under his supervision documents in the patient record or other
readily retrievable record that identifies the patient; the names of drugs
mixed, diluted or reconstituted; and the date of administration; and
6. Develop and maintain
written policies and procedures to be followed in mixing, diluting, or
reconstituting of sterile products and for the training of personnel.
C. Any mixing, diluting,
or reconstituting of drug products that are hazardous to personnel shall be
performed consistent with requirements of all applicable federal and state laws
and regulations for safety and air quality, to include but not be limited to
those of the Occupational Safety and Health Administration (OSHA). For the
purposes of this chapter, Appendix A of the National Institute for Occupational
Safety and Health publication (NIOSH Publication No. 2004-165), Preventing
Occupational Exposure to Antineoplastic and Other Hazardous Drugs in Health
Care Settings is incorporated by reference for the list of hazardous drug
products and can be found at www.cdc.gov/niosh/docs/2004-165.
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 (18VAC85-20)
Instructions and Application for a License to Practice Medicine and
Surgery in Virginia for Graduates of American Medical Schools (US/Canada) (rev.
3/10).
Instructions and Application for a License to Practice Medicine and
Surgery for Graduates of Non-American Medical Schools (outside of the
US/Canada) (rev. 3/10).
Information and Chiropractic Endorsement Application (rev. 12/08).
Information and Podiatry Endorsement Application (rev. 12/08).
Instructions and Application for a License to Practice Osteopathic
Medicine (rev. 1/09).
Form A, Claims History Sheet
(rev. 8/07).
Form B, Activity Questionnaire (rev. 10/09).
Form C, Clearance from Other State Boards (rev. 11/09).
Form E, Disciplinary Inquiry (rev. 5/11).
Form H, Federation of Podiatric Medical Boards Report (rev. 12/08).
Instructions and Application for a Temporary License for Intern/Resident
Training Program (rev. 8/07).
Form A, Intern/Resident, Memorandum from Associate Dean of Graduate
Medical Education (rev. 8/07).
Form B, Intern/Resident, Certificate of Professional Education (rev.
8/07).
Form G, Intern Resident, Request for Status Report of ECFMG Certification
(eff. 8/07).
Form H, Report of Clinical Rotations (rev. 12/02).
Transfer Request, Intern/Resident (eff. 8/07).
Instructions for Completing
an Application for a Limited License to Foreign Medical Graduates Pursuant to
54.1-2936 (rev. 8/07).
Application for a Limited
License to Foreign Medical Graduates Pursuant to 54.1-2936 (rev. 8/07).
Form L, Certificate of Professional Education (rev. 12/08).
Continued Competency Activity and Assessment Form (rev.
9/07).
Instructions for
Reinstatement of Medicine and Surgery Licensure Application (rev. 4/08).
Application for Reinstatement of License to Practice Medicine (rev.
3/09).
Form A, MD Reinstatement, Claims History Sheet (rev. 9/09).
Form B, MD Reinstatement,
Activity Questionnaire Form (rev. 8/07).
Form C, MD Reinstatement,
State Questionnaire Form (rev. 8/07).
MD Reinstatement,
Disciplinary Inquiries to Federation of State Medical Boards (rev. 8/07).
Instructions for Reinstatement
of Osteopathic Medicine Licensure Application (rev. 4/08).
Application for
Reinstatement of License to Practice Osteopathic Medicine (rev. 8/07).
Form A, Osteopathy
Reinstatement, Claims History (rev. 8/07).
Instructions for
Reinstatement of a Chiropractic Licensure Application (rev. 4/08).
Application for
Reinstatement of License to Practice as a Chiropractor (rev. 8/07).
Instructions for
Reinstatement of Podiatry Licensure Application (rev. 4/08).
Application for
Reinstatement of License to Practice Podiatry (rev. 8/07).
Reinstatement Application
Instructions for Medicine & Surgery or Osteopathy Licensure after
Reinstatement Denied or License Revoked (rev. 8/07).
Reinstatement Application
Instructions for Medicine & Surgery or Osteopathy Licensure after Mandatory
Suspension, Suspension or Surrender (rev. 8/07).
Reinstatement Application
Instructions for Podiatry Licensure after Mandatory Suspension, Suspension or
Surrender (rev. 8/07).
Application for
Reinstatement of License to Practice Medicine/Osteopathy After Petition for
Reinstatement Denied or License Revoked (rev. 8/07).
Application for Registration for Volunteer Practice (rev. 8/07).
Sponsor Certification for Volunteer Registration (rev. 8/08).
Guidelines for Completing the Practitioner Profile Questionnaire (rev.
7/11).
Practitioner's Help Section (rev. 11/10).
Practitioner Questionnaire (rev. 7/11).
VA.R. Doc. No. R09-1755; Filed
September 24, 2012, 3:00 p.m.
REAL ESTATE
APPRAISER BOARD
Fast-Track Regulation
Title of Regulation:
18VAC130-20. Real Estate Appraiser Board Rules and Regulations (amending
18VAC130-20-90, 18VAC130-20-130).
Statutory Authority: § 54.1-2013
of the Code of Virginia.
Public Hearing Information:
No public hearings are scheduled.
Public Comment Deadline:
November 21, 2012.
Effective Date: January
1, 2013.
Agency Contact:
Christine Martine, Executive Director, Real Estate Appraiser Board, 9960
Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8552, FAX
(804) 527-4298, or email reappraisers@dpor.virginia.gov.
Basis: Section
54.1-2013 of the Code of Virginia states that the Real Estate Appraiser Board
"shall have all the powers under Chapter 2 (§ 54.1-200 et seq.) of Title
54.1 of the Code of Virginia and may do all things necessary and convenient for
carrying into effect the provisions of this chapter and all things required or
expected of a state appraiser certifying and licensing agency under Title 11 of
the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (12 USC
§ 3331 et seq.)."
Section 54.1-2013 of the Code
of Virginia further states that the board "shall include in its
regulations, provisions for the enforcement of standards of professional
appraiser practice."
Section 54.1-2017 of the Code
of Virginia states, "Each licensed residential real estate appraiser,
certified residential real estate appraiser, and certified general real estate
appraiser shall comply with the standards of professional appraisal practice
and code of ethics adopted by the Board."
Purpose: The board's
regulations require that all certified, licensed, and trainee real estate
appraiser applicants and licensees be assessed a $21 biennial fee for a copy of
the Uniform Standards of Professional Appraisal Practice (USPAP) that is
provided to licensees by the board. This $21 fee is subject to the fee charged
by the Appraisal Foundation and may be adjusted and charged to the
applicant/licensee in accordance with the fee charged by the Appraisal
Foundation. The Appraisal Foundation adjusted the fee for each copy of USPAP
from $22 to $30 on October 1, 2009. The regulations are being amended to comply
with this adjustment by amending the biennial USPAP fee for all certified,
licensed, and trainee real estate appraisers from $21 to $30.
Rationale for Using
Fast-Track Process: The Appraisal Foundation, the sole source of USPAP,
changed the price it charges state appraiser regulatory agencies for a copy of
USPAP from $22 to $30 on October 1, 2009. By regulation, the board must provide
each appraiser license applicant and licensee with a new copy of USPAP every
two years. The board only charges its applicants and licensees $21 every two
years for a copy of USPAP. The board is spending $9.00 more than it receives
for every copy of USPAP purchased.
This regulatory action should
be noncontroversial because all appraisers understand that the board provides
them with a copy of USPAP every two years. In addition, the Appraisal
Foundation charges state regulatory boards a discount price of $30 for each
copy of USPAP, while the Appraisal Foundation charges individual appraisers $75
for each copy of USPAP.
Substance: The Real
Estate Appraiser Board's existing regulations are being amended to adjust the
fee to cover the actual cost of the copy of USPAP provided by the board to its
licensees. The current regulations list the cost of USPAP at $21. The proposed
regulations will list the cost of USPAP at $30.
Issues: There appear to
be no issues or disadvantages associated with the proposed regulation.
Department of Planning and
Budget's Economic Impact Analysis:
Summary of the Proposed
Amendments to Regulation. The Real Estate Appraiser Board (Board) proposes to
raise the biennial fees it charges to certified, licensed and trainee real
estate appraisers by $9.
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.
Section 54.1-2013 of the Code of Virginia states that the Board "may do
all things necessary and convenient for carrying into effect the provisions of
this chapter and all things required or expected of a state appraiser
certifying and licensing agency under Title 11 of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989." The Financial Institutions
Reform, Recovery and Enforcement Act (FIRREA) was passed by Congress in 1989 as
a result of the savings and loan crisis; it requires the state licensing of
real estate appraisers. FIRREA created the Appraisal Subcommittee which
monitors and reviews the practices, procedures, activities, and organizational
structure of the Appraisal Foundation. The Appraisal Foundation promulgates the
Uniform Standards of Professional Appraisal Practice (USPAP) which are the
generally accepted appraisal standards by which appraisals must be performed.
The Appraisal Foundation, the
sole source of USPAP, changed the price it charges state appraiser regulatory
agencies for a copy of USPAP from $22 to $30 on October 1, 2009. By regulation,
the Board must provide each appraiser license applicant and licensee with a new
copy of USPAP every two years. According to the Department of Professional and
Occupational Regulation (Department), significant changes to USPAP occur over
the two year period. Currently the Board only charges its applicants and
licensees $21 every two years for a copy of USPAP. The Board is spending $9
more than it receives for every copy of USPAP purchased. Thus the proposal to
raise the biennial fees it charges to certified, licensed and trainee real
estate appraisers by $9 will allow the Board to recover its cost of supplying
the USPAP, but does not subsidize any other function. Given that the Appraisal
Foundation charges state regulatory boards a discount price of $30 for each
copy of USPAP versus $75 per copy to individual appraisers, the Department
believes this proposal will be non-controversial.
Businesses and Entities
Affected. The proposed amendments affect certified, licensed and trainee real
estate appraisers and firms which employ them.
Localities Particularly
Affected. The proposed amendments do not disproportionately affect particular
localities.
Projected Impact on
Employment. The proposal amendments are unlikely to significantly affect total
employment.
Effects on the Use and Value
of Private Property. The proposed amendments will increase costs for certified,
licensed and trainee real estate appraisers by $4.50 per year.
Small Businesses: Costs and
Other Effects. The proposed amendments will not significantly affect small
businesses.
Small Businesses: Alternative
Method that Minimizes Adverse Impact. The proposed amendments will not
significantly affect small businesses.
Real Estate Development Costs.
The proposed amendments are unlikely to have a large 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 DPB's best estimate of
these economic impacts.
Agency's Response to
Economic Impact Analysis: The agency concurs with the approval.
Summary:
The amendments raise the
biennial fees charged to certified, licensed, and trainee real estate appraiser
applicants and licensees by $9.00 to cover the cost of the Uniform Standards of
Professional Appraisal Practice that is provided to licensees by the board.
18VAC130-20-90. Application
and registration fees.
There will be no pro rata
refund of these fees to licensees who resign or upgrade to a higher license or
to licensees whose licenses are revoked or surrendered for other causes. All
application fees for licenses and registrations are nonrefundable.
1. Application fees for
registrations, certificates and licenses are as follows:
|
Registration of business entity
|
$100
|
|
Certified General Real Estate Appraiser
|
$141 $150
|
|
Temporary Certified General Real Estate Appraiser
|
$45
|
|
Certified Residential Real Estate Appraiser
|
$141 $150
|
|
Temporary Certified Residential Real Estate Appraiser
|
$45
|
|
Licensed Residential Real Estate Appraiser
|
$141 $150
|
|
Temporary Licensed Residential Real Estate Appraiser
|
$45
|
|
Appraiser Trainee
|
$96 $105
|
|
Upgrade of license
|
$65
|
|
Instructor Certification
|
$135
|
Application fees for a
certified general real estate appraiser, a certified residential real estate
appraiser, a licensed residential real estate appraiser and an appraiser
trainee include a $21 $30 fee for a copy of the Uniform Standards
of Professional Appraisal Practice. This fee is subject to the fee charged by
the Appraisal Foundation and may be adjusted and charged to the applicant in
accordance with the fee charged by the Appraisal Foundation.
2. Examination fees. The fee
for examination or reexamination is subject to contracted charges to the
department by an outside vendor. These contracts are competitively negotiated
and bargained for in compliance with the Virginia Public Procurement Act (§ 2.2-4300
et seq. of the Code of Virginia). Fees may be adjusted and charged to the
candidate in accordance with this contract.
3. An $80 National Registry
fee assessment for all permanent license applicants is to be assessed of each
applicant in accordance with § 1109 of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 (12 USC §§ 3331-3351). This fee may be
adjusted and charged to the applicant in accordance with the Act. If the
applicant fails to qualify for licensure, then this assessment fee will be
refunded.
18VAC130-20-130. Fees for
renewal and reinstatement.
A. All fees are
nonrefundable.
B. National Registry fee
assessment. In accordance with the requirements of § 1109 of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989, $80 of the biennial
renewal or reinstatement fee assessed for all certified general real estate
appraisers, certified residential and licensed residential real estate
appraisers shall be submitted to the Appraisal Subcommittee. The registry fee
may be adjusted in accordance with the Act and charged to the licensee.
Renewal and reinstatement
fees for a certified general real estate appraiser, a certified residential
real estate appraiser, a licensed residential real estate appraiser and an
appraiser trainee include a $21 $30 fee for a copy of the Uniform
Standards of Professional Appraisal Practice. This fee is subject to the fee
charged by the Appraisal Foundation and may be adjusted and charged to the
applicant in accordance with the fee charged by the Appraisal Foundation.
C. Renewal fees are as
follows:
|
|
Certified general real estate appraiser
|
$141 $150
|
|
|
Certified residential real estate appraiser
|
$141 $150
|
|
|
Licensed residential real estate appraiser
|
$141 $150
|
|
|
Appraiser trainee
|
$61 $70
|
|
|
Registered business entity
|
$60
|
|
|
Certified instructor
|
$125
|
D. Reinstatement fees are as follows:
|
|
Certified general real estate appraiser
|
$201 $210
|
|
|
Certified residential real estate appraiser
|
$201 $210
|
|
|
Licensed residential real estate appraiser
|
$201 $210
|
|
|
Appraiser trainee
|
$121 $130
|
|
|
Registered business entity
|
$100
|
|
|
Certified instructor
|
$230
|
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
(18VAC130-20)
Real Estate Appraiser
Board License Application, 40LIC (rev. 1/12).
Real Estate Appraiser Board License Application,
40LIC (rev. 12/12).
Real Estate Appraiser Board Experience Log, 40EXP (rev. 7/10).
Real Estate Appraiser Board Experience Verification Form, 40EXPVER (rev.
4/09).
Real Estate Appraiser Board Experience Requirements, 40EXPREQ (rev.
4/10).
Real Estate Appraiser
Board Appraiser Trainee License Application, 40TRLIC (rev. 6/10).
Real Estate Appraiser Board Appraiser Trainee
License Application, 40TRLIC (rev. 12/12).
Real Estate Appraiser Board Trainee Supervisor Verification Form, 40TRSUP
(rev. 4/09).
Real Estate Appraiser Board Business Registration Application, 40BUS
(rev. 12/09).
Real Estate Appraiser Board Pre-License Course Application, 40CRS (rev.
4/09).
Real Estate Appraiser Board Instructor Certificate Application, 40INSTR
(rev. 5/09).
Real Estate Appraiser Board Pre-License Renewal Course Application,
40RENCRS (rev. 2/09).
Real Estate Appraiser Board Activate Application, 40ACT (rev. 4/09).
Real Estate Appraiser Board Temporary Appraiser License Application,
40TLIC (rev. 6/10).
VA.R. Doc. No. R13-3051; Filed
September 27, 2012, 9:43 a.m.
BOARD
FOR WATERWORKS AND WASTEWATER WORKS OPERATORS AND ONSITE SEWAGE SYSTEM
PROFESSIONALS
Forms
Title of Regulation:
18VAC160-20. Board for Waterworks and Wastewater Works Operators and Onsite
Sewage System Professionals Regulations.
Agency Contact: Trisha
Henshaw, Executive Director, 9960 Mayland Drive, Suite 400, Richmond, VA 23233,
telephone (804) 367-0362, or email trisha.henshaw@dpor.virginia.gov.
NOTICE: Forms used in administering the following regulation have
been filed by the Board for Waterworks and Wastewater Works Operators and
Onsite Sewage System Professionals. The forms are not being published; however,
online users of this issue of the Virginia Register of Regulations may click on
the name of the new or amended form to access it. The forms are also available
from the agency contact or may be viewed at the Office of the Registrar of
Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.
FORMS (18VAC160-20)
Continuing Professional
Education (CPE) Certificate of Completion, 19CPE (rev. 05/09).
Application for Training
Course Approval, 19CRS (rev. 05/09).
Experience Verification
Form, 19EXP (eff. 07/09).
Experience Verification Application – Onsite Sewage
System Applicants Only, A436-19EXP (rev. 10/12).
Education & Training
Substitution Form, 19ET_SUB (eff. 07/09).
Licensure Fee Notice, 19FEE
(eff. 07/09).
Interim Onsite Soil
Evaluator - VDH Employees Only License Application, 1930LIC (eff. 07/09).
Interim Onsite Sewage System
Installer License Application, 1931_32LIC (eff. 07/09).
Interim Onsite Sewage System
Operator License Application, 1933_34LIC (eff. 07/09).
Onsite Soil Evaluator Exam
& License Application, 1940_41EXLIC (eff. 07/09).
Onsite Sewage System
Installer Exam & License Application, 1944_45EXLIC (eff. 07/09).
Onsite Sewage System Installer Exam & License
Application, A465-1944EXLIC (rev. 12/12).
Onsite Sewage System
Operator Exam & License Application, 1942_43EXLIC (eff. 07/09).
Suspension of Examination – Conventional Onsite Sewage System Installer
License Application, 1944WAIV (eff. 07/12).
VA.R. Doc. No. R13-3424; Filed
September 27, 2012, 12:36 p.m.
w –––––––––––––––––– w
TITLE 20.
PUBLIC UTILITIES AND TELECOMMUNICATIONS
STATE CORPORATION COMMISSION
Final Regulation
REGISTRAR'S NOTICE: The State Corporation Commission is claiming
an exemption from the Administrative Process Act in accordance with § 2.2-4002
A 2 of the Code of Virginia, which exempts courts, any agency of the Supreme
Court, and any agency that by the Constitution is expressly granted any of the
powers of a court of record.
Title of Regulation:
20VAC5-309. Rules for Enforcement of the Underground Utility Damage Prevention
Act (amending
20VAC5-309-15, 20VAC5-309-90, 20VAC5-309-110, 20VAC5-309-120; adding
20VAC5-309-165, 20VAC5-309-190, 20VAC5-309-200).
Statutory Authority: §§ 12.1-13
and 56-265.30 of the Code of Virginia.
Effective Date: October
1, 2012.
Agency Contact: Shane
Ayers, Safety Program Manager, Utility and Railroad Safety Division, State
Corporation Commission, P.O. Box 1197, Richmond, VA 23218, telephone (804)
371-9561, FAX (804) 371-9734, or email shane.ayers@scc.virginia.gov.
Summary:
The amendments to this
chapter are:
20VAC5-309-15.
Definitions. This amendment moves the definition of "Clear Evidence"
from 20VAC5-309-120 to 20VAC5-309-15 and adds a definition for "GPS"
which is used in proposed rule 20VAC5-309-190.
20VAC5-309-90. Emergency
excavation or demolition. This amendment prevents potential abuse of emergency
notices for nonemergency excavations and demolitions.
20VAC5-309-110. General
marking requirements. This amendment defines the marking requirements clearly
in the rule independent of an external document (the Virginia Underground
Utility Marking Standards Booklet) to allow updating the best practices in this
booklet, when necessary, without the need to change the reference in the rules.
20VAC5-309-120. Notification
of clear evidence. This amendment prevents potential abuse of three hour
notices when an excavator has not observed clear evidence of an unmarked
utility line and simply wishes to have the site remarked without waiting the
period required by the Underground Utility Damage Prevention Act.
20VAC5-309-165. Operator's
responsibilities for abandoned utility lines. This new section clearly defines
an operator's responsibility to timely respond to an excavator's request
regarding the status of an unmarked utility line (i.e., active or abandoned).
This information will reduce downtime costs for excavators and capture
additional information regarding such lines on operators' records, which will
assist in preventing future confusion on excavations performed at or near the
same location.
20VAC5-309-190.
Delineating specific location of a proposed excavation or demolition. This new
section further delineates means by which a person serving notice of proposed
excavation or demolition to the notification center can describe their work
area. If work areas are too large, operators responding to the notices incur
additional cost by wasting valuable time and resources marking utility lines in
areas where no excavation or demolition will occur.
20VAC5-309-200. Reporting
damage by calling 911. This new section better defines the requirements of § 56-265.24
E of the Code of Virginia, enhances public safety in the event of a pipeline
incident, and brings Virginia's requirements more in line with the federal
Pipeline Safety Act of 2011.
Since publication of the
proposed regulation, changes were made to 20VAC5-309-190 to (i) stress
utilization, as opposed to approval, of GPS nomenclature; (ii) address the
possibility of multiple structures on a parcel and oddly shaped parcels; and
(iii) identify the perspective from which the quadrants are to be identified.
COMMONWEALTH OF VIRGINIA, ex
rel.
STATE CORPORATION COMMISSION
CASE NO. URS-2012-00183
Ex Parte: In the matter concerning Rules
implementing the State Corporation
Commission's authority to enforce the
Underground Utility Damage Prevention Act
ORDER ADOPTING REGULATIONS
On May 29, 2012, the State
Corporation Commission ("Commission") initiated a rulemaking pursuant
to § 56-265.30 of the Code of Virginia ("Code"), which
authorizes the Commission to enforce the provisions of Chapter 10.3 of Title 56
of the Code,1 also known as the Underground
Utility Damage Prevention Act ("Act"). Section 56-265.30 of the Code
also authorizes the Commission to promulgate any rules or regulations necessary
to implement the Commission's authority to enforce the Act.
The Commission's Division of
Utility and Railroad Safety ("Division") proposed that the Commission
adopt several additional rules for the enforcement of the Act following an
extensive collaborative process involving the Division, the Advisory Committee
(established in accordance with § 56-265.31 of the Code), and industry
stakeholders. In addition, the Division proposed several revisions to existing
rules to better define the marking standards for underground utility lines.
Finally, a new rule was proposed to better align Virginia and federal statutory
requirements in the event that damage to an underground utility line results in
the escape of any flammable, toxic, hazardous or corrosive gas or liquid.2
The Commission's May 29, 2012
Order for Notice and Comment ("May 29, 2012 Order") set out the rules
proposed by the Division and provided that public notice of the Proposed Rules
be given so as to afford any interested person or entity an opportunity to
comment on the Proposed Rules, to request a hearing thereon, or to propose
modifications or supplements to the Proposed Rules.
Notice of the proceeding was
published in the Virginia Register on June 18, 2012, and in newspapers of
general circulation throughout the Commonwealth.3
Interested persons were directed to file any comments and requests for hearing
on the Proposed Rules on or before July 9, 2012.
Comments in this proceeding
were submitted by: Roanoke Gas Company, Columbia Gas of Virginia, Inc.
("Columbia Gas"), the Virginia Association of Municipal Wastewater
Agencies, Inc. ("VAMWA"), and the Virginia Telecommunications
Industry Association ("VTIA"). The Commission did not receive a
request for a hearing on the Proposed Rules.
Specifically, comments
submitted in this proceeding proposed certain modifications to Proposed Rules
20 VAC 5-309-110,4 20 VAC 5-309-165, 20 VAC
5-309-190, and 20 VAC 5‑309-200. Regarding Proposed Rule
20 VAC 5-309-165 ("Proposed Rule 165"), VAMWA offered several
revisions "to clarify the purpose of the requirement and to better
reference existing Virginia Code sections regarding unmarked utility
lines."5 VAMWA also recommended
that the 27-hour requirement for reporting the status of an abandoned utility
line and the 96-hour deferral thereof be modified to begin with the operator's
response, as opposed to the excavator's notice of an unmarked utility line to
the notification center. VAMWA's modifications also contemplated a scenario
where an excavator and operator cannot agree to a time period in excess of 27
hours for the operator to provide Proposed Rule 165's required information to
the excavator. Further, VAMWA's comments emphasized that ownership of an
abandoned line should trigger the responsibilities contained in Proposed Rule
165.6 VTIA recommended modification to
Proposed Rule 165 in order "to clarify that a declaration of
'extraordinary circumstances' as defined in § 56-265.15 of the Code does
not require the mutual agreement of the excavator and the operator."7
Columbia Gas and VTIA
expressed concerns that Proposed Rule 20 VAC 5-309-190 ("Proposed Rule
190") fails to contemplate multiple structures on a single parcel.8 Columbia Gas also offered additional language
to Proposed Rule 190 "to clarify that the intent of the Proposed Rule is
for operators and excavators to utilize GPS nomenclature approved by the
Advisory Committee as opposed to simply requiring that the Advisory Committee
approve such GPS nomenclature"9 and
"to clarify the intent of the perspective from which the quadrants of a
parcel or property are to be identified."10
Columbia Gas further expressed concern that provisions of Proposed Rule 190 B
may lead to confusion in certain circumstances.11
Finally, regarding Proposed
Rule 20 VAC 5-309-200 ("Proposed Rule 200"), VTIA recommended adding
the words "reasonably observable" to support their position that
"it is not feasible to require an excavator, or anyone for that matter, to
call 911 to report something of which they are not aware."12
As directed by the May 29,
2012 Order, the Division filed a report ("Response") on July 19,
2012, in response to the comments received on the Proposed Rules. In response
to comments submitted on Proposed Rule 165, the Division opposed VAMWA's
revisions, stating that "it is unnecessary to incorporate established
statutory requirements for responding to and marking unmarked utility lines in
this Proposed Rule,"13 and that,
because the operator's additional notice to the notification center pursuant to
§ 56-265.17 C is verifiable, "starting the clock at the time of notice to
the notification center is much more feasible than VAMWA's alternative."14 The Division further noted that the
definition of "operator" found in § 56-265.15 of the Code is not
based solely on ownership of an underground utility line and, regarding
communication of the status of an abandoned line, stated "it is reasonable
to require the operator and excavator to negotiate 'a mutually agreeable time
period in excess of 27 hours,' as contemplated by this Proposed Rule."15 The Division also opposed VTIA's suggested
modification to Proposed Rule 165 concerning time requirements for certain
communications in extraordinary circumstances. The Division stated that
"even in extraordinary circumstances, the Division believes that the
Proposed Rule provides sufficient time to determine the status of the utility
line and provide that information to the excavator."16
The Division recommended that the Commission adopt Proposed Rule 165 without
the modifications suggested by VAMWA and VTIA.
Addressing concerns raised
about Proposed Rule 190, the Division agreed that the Proposed Rule could
benefit from additional clarification (i) stressing utilization, as opposed to
approval, of GPS nomenclature; (ii) regarding the possibility of multiple
structures on a parcel and oddly shaped parcels; and (iii) identifying the
perspective from which the quadrants are to be identified.17
The Division did not oppose additional specific language offered by Columbia
Gas to address some of these concerns.18 The
comments received in this proceeding did not recommend any particular
modifications to address the issue of dividing oddly shaped parcels into
quadrants for purposes of describing limits of proposed excavation or
demolition. Therefore, the Division suggested amending Proposed Rule 190
to include the words "if geographically feasible" to address this
concern.19 In response to other
circumstances in which Columbia Gas suggested Proposed Rule 190 could lead to
confusion, the Division stated that it "disagrees that the location of a
single structure on the parcel could result in confusion."20
In response to VTIA's
modification to Proposed Rule 200, the Division noted that the purpose of the
Proposed Rule is "'to better align Virginia and federal statutory requirements
in the event that damage to an underground utility line results in the escape
of any flammable, toxic, hazardous or corrosive gas or liquid'"21 and stated that it believes that Proposed
Rule 200, as drafted, "is consistent with the current federal
requirement."22 Accordingly, the
Division recommended that the Commission adopt Proposed Rule 200 without
modification.
NOW THE COMMISSION, upon
consideration of this matter, is of the opinion and finds that the proposed
regulations as revised and set forth in the Division's Response should be
adopted. We find that Columbia Gas's Motion to Withdraw should be granted and
note that modifications to Proposed Rules 165, 190, and 200, as discussed
herein, remain at issue in this proceeding. We agree with the Division, for the
reasons stated in its Response, that Proposed Rules 165 and 200 should be
adopted as proposed in the May 29, 2012 Order without further modification. We
further agree that clarifying revisions to Proposed Rule 190 are appropriate
and find that such modifications should be adopted as set forth in the
Division's Response.
Accordingly, IT IS ORDERED
THAT:
(1) Columbia Gas's
Motion to Withdraw is hereby granted.
(2) The Commission's
regulations regarding Rules for Enforcement of the Underground Utility Damage
Prevention Act, 20 VAC 5-309-10 et seq., are hereby adopted as shown in
Appendix A to this Order, and shall become effective as of October 1, 2012.
(3) A copy of these
regulations as set out in Appendix A of this Order shall be forwarded to the
Registrar of Regulations for publication in the Virginia Register.
(4) There being nothing
further to come before the Commission, this case hereby is dismissed from the
Commission's docket of active cases, and the papers filed herein shall be placed
in the Commission's file for ended causes.
AN ATTESTED COPY hereof
shall be sent by the Clerk of the Commission to: Robert C. Steidel,
Virginia Association of Municipal Wastewater Agencies, Inc., P.O. Box 51,
Richmond, Virginia 23218-0051; Richard D. Gary, Esquire, Hunton & Williams,
LLP, Riverfront Plaza, East Tower, 951 East Byrd Street, Richmond, Virginia
23219; John B. Williamson, III, Roanoke Gas, 518 Kimball Avenue, NE, P.O. Box
13007, Roanoke, Virginia 24030; and James S. Copenhaver, Assistant General
Counsel, NiSource Corporate Services Company, 1809 Coyote Drive, Chester,
Virginia 23836; and a copy shall be delivered to the Commission's Office of
General Counsel and Division of Utility and Railroad Safety.
20VAC5-309-15. 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 Underground Utility Damage
Prevention Act (Chapter 10.3 (§ 56-265.14 et seq.) of Title 56 of the Code
of Virginia).
"Clear evidence" as used in § 56-265.24
C of the Code of Virginia shall include, but is not limited to, visual evidence
of an unmarked utility line, knowledge of the presence of a utility line, or
faded marks from previous marking of a utility line.
"Division" means the State Corporation Commission's
Division of Utility and Railroad Safety.
"GPS" means global positioning system.
"Installation records of a utility line" means
maps, drawings, diagram, sketches, or any other depictions or descriptions of
an underground utility line that reflect the location at the time of
installation in a reasonably accurate manner.
"Locate" or "marking" means an operator's
or its contract locator's markings of an underground utility line.
"Serious impact on public health" means any
condition involving a water or sewer utility line that creates, or may create,
a danger to the health and well being of the public.
Part III
Emergency Excavation or Demolition
20VAC5-309-90. Emergency excavation or demolition.
A. No person shall serve an emergency notice on the
notification center unless the work to be performed is in response to an
"emergency," as the term is defined in § 56-265.15 of the Code of
Virginia.
B. When excavation or demolition is required during an
emergency as defined in § 56-265.15 of the Code of Virginia, all reasonable
precautions shall be taken to protect underground utility lines that may be
located at the site of the excavation. These precautions shall include, but are
not limited to, the following:
1. Dispatched personnel or crews responding to the emergency
shall notify the notification center and request an emergency locate of the
underground utility lines at the earliest reasonable opportunity;
2. After arriving at the site, the person responding to the
emergency shall determine the need for immediate action;
3. If immediate action is required, all reasonable precautions
shall be taken to protect the underground utility lines. These actions shall
include, but are not limited to, the following:
a. Conduct a thorough site assessment to determine the
location of underground utility lines;
b. Locate the underground utility lines with acceptable
equipment, if possible;
c. Hand dig around the underground utility lines;
d. Directly notify the utility line operators, if necessary;
and
e. If prudent, the excavator shall wait for marking of the
excavation area by operators having utility lines in the excavation area.
20VAC5-309-110. General marking requirements.
A. All markings shall be suitable for their intended purpose
for a period of 15 working days beginning at 7 a.m. on the next working
day following notice by the excavator to the notification center.
B. Markings shall be made at sufficient intervals to clearly
indicate the approximate horizontal location and direction of the underground
utility line. However, the distance between any two marks indicating the same
utility line shall not exceed 20 feet. Site conditions or directional changes
of the underground utility line shall be considered to determine the need for
shorter distance between marks.
C. Markings of underground utility lines shall be by means of
stakes, paint, flags, or combination thereof. The terrain, site conditions, and
the type and extent of the proposed excavation shall be considered to determine
the most suitable means to mark underground utility lines.
D. Paint marks shall be approximately 8 to 10 inches in
length and one to two inches in width except when "spot" marking is
necessary.
E. A minimum of three separate marks shall be made for each
underground utility line marking.
F. Valve box covers that are at grade and visible shall be
marked with the appropriate color in accordance with the Act.
G. If in the process of marking an underground utility line,
a customer-owned underground utility line of the same type is discovered, the
operator or its contract locator shall make a reasonable effort to contact the
excavator or the customer to advise of the presence of the line.
H. Where the proposed excavation crosses an underground
utility line, markings shall be at intervals that clearly define the route of
the underground line.
I. All markings shall extend if practical, a reasonable
distance beyond the boundaries of the specific location of the proposed work as
detailed on the ticket.
J. If the use of line marking is considered damaging to
property (driveways, landscaping, historic locations to the extent boundaries
are known), "spot" marking or other suitable marking methods shall be
used.
K. Markings shall be valid for an excavation site for 15
working days beginning at 7 a.m. on the next working day following notice to
the notification center by the excavator or until one of the following events
occurs:
1. The markings become faded, illegible or destroyed; or
2. If the markings were placed in response to an emergency and
the emergency condition has ceased to exist.
L. Where permitted by the operator's records, all utility
lines of the same type in the same trench owned by the same operator shall be
marked individually or by a single mark. If a single mark is used, the number
of the utility lines shall be indicated at every other mark.
M. Operators or their contract locators shall use all
information necessary to mark their facilities accurately.
N. Markings of an underground pipeline greater than 12 inches
in nominal outside dimension shall include the size in inches at every other
mark.
O. Duct structures and conduit systems shall be marked in
accordance with the horizontal marking symbols for such structures and conduit
systems as shown in item nine of the Virginia Underground Utility Marking Best
Practices as provided in the Virginia Underground Utility Marking Standards
(March 2004) published by the division (http://www.state.va.us/scc/division/urs/mutility/va_uums.pdf)
with line markings indicating the approximate outer dimensions of the duct
structure or conduit system and a solid closed circle over the approximate
center of the duct structure or conduit system.
P. In areas where marks would be destroyed, offset
markings shall be made using horizontal marking symbols as shown in item 15 of
the Virginia Underground Utility Marking Best Practices as provided in the
Virginia Underground Utility Marking Standards (March 2004) published by the
division (http://www.state.va.us/scc/division/urs/mutility/va_uums.pdf)
such as high traffic areas, gravel areas, dirt areas, or where surface
conditions are such that the placement of marks directly over the utility line
is not possible, offset markings shall be used. The offset marks shall be
placed on a permanent surface, which is not likely to be destroyed. Offset
marks shall include a line marking placed parallel to the underground utility
line and an arrow, pointing in the direction of the utility line, with the
distance in feet and inches to the location of the utility line shown on the
right side of the arrow and size, material type, and the operator's letter
designation information on the left side of the arrow. When possible, offset
marks shall be used in conjunction with locate marks placed in accordance with
the Act.
Q. The assigned letter designations for each operator to be used
in conjunction with markings of underground utility lines shall be the same as
those assigned by the notification center certified for a geographic area,
subject to the review of the same and approval of such designations in writing
by the advisory committee. Such approved designations by the advisory committee
shall be deemed final unless appealed to the commission within 30 days of the
advisory committee's written evidence of approval. Operators wishing to appeal
the letter designations assigned in accordance with this section may file an
appropriate formal pleading with the commission seeking review of the assigned
letter designation within 30 days of the issuance of the written approval of
the advisory committee.
R. The symbols for marking of underground utility lines in
compliance with § 56-265.19 F (ii) of the Act shall be the same as those shown
in the Virginia Underground Utility Marking Standards (March 2004) published by
the division (http://www.state.va.us/scc/division/urs/mutility/va_uums.pdf)
placed in response to a notice of proposed excavation or demolition.
Part V
Supplemental Rules, Etc.
20VAC5-309-120. Clear Notification of clear
evidence.
"Clear evidence" as used in § 56-265.24 C of the
Code of Virginia shall include, but is not limited to, visual evidence of an
unmarked utility line, knowledge of the presence of a utility line, or faded
marks from previous marking of a utility line No person shall serve a
notice on the notification center regarding clear evidence of the presence of
an unmarked utility line pursuant to § 56-265.24 C of the Code of Virginia
unless (i) the excavator has previously notified the notification center of the
proposed excavation pursuant to § 56-265.17 A of the Code of Virginia,
(ii) the excavator has complied with the requirements of 20VAC5-309-180, and
(iii) the excavator has observed clear evidence of the presence of an unmarked
utility line in the area of the proposed excavation.
20VAC5-309-165. Operator's responsibilities for abandoned
utility lines.
A. Upon receipt of an additional notice to the
notification center pursuant to § 56-265.24 C of the Code of Virginia, if the
operator determines that an abandoned utility line exists, the operator shall
provide the status of the utility line to the excavator within 27 hours,
excluding Saturdays, Sundays, and legal holidays, from the time the excavator
makes the additional notice to the notification center. The excavator and
operator may negotiate a mutually agreeable time period in excess of 27 hours
for the operator to provide such information to the excavator if site
conditions prohibit the operator from making such a determination or
extraordinary circumstances exist, as defined in § 56-265.15 of the Code of
Virginia. If the site conditions prohibit the operator from making such a
determination or extraordinary circumstances exist, the operator shall directly
notify the person who proposes to excavate or demolish and shall, in addition,
notify that person of the date and time when the status of the utility line
will be determined. The deferral to determine the status of the utility line
shall be no longer than 96 hours from 7 a.m. on the next working day following
the excavator's additional notice to the notification center.
B. The operator shall record and maintain the location
information of the abandoned utility line as determined by the operator. Such
records need not include abandoned underground electric, telecommunications,
cable television, water, and sewer lines connected to a single family dwelling unit.
20VAC5-309-190. Delineating specific location of a proposed
excavation or demolition.
A. Any person, as defined in § 56-265.15 of the Code of
Virginia, providing notice of a proposed excavation or demolition shall clearly
describe the limits of the proposed excavation or demolition with sufficient
detail to enable the operators to ascertain the location of the proposed
excavation. The specific location of the proposed excavation or demolition may
include, but is not limited to:
1. GPS coordinates taken at a single point where work is
planned or GPS coordinates taken to delineate a line, multi-segment line, or
polygon. When providing a single point, line, or multi-segment line, the person
providing notice shall include an area measured in feet from the coordinates
that describe the work area. If a polygon is used, the proposed work area shall
be inside the polygon. GPS nomenclatures used for providing coordinates to the
notification center shall be [ as ] approved by the
advisory committee.
2. White lining to delineate the area where excavation will
take place. For single point excavation, the area shall be marked using dots,
dashes, or white flags to show the operators the area of excavation. If utility
markings are desired outside a white lined area, the excavator shall provide
clear instructions, to include the distance in feet outside the white lined
area, to the notification center. For continuous excavations, such as trenching
and boring, the excavator shall mark the center line of excavation by the use
of dots or dashes. The excavation width, in feet, shall be indicated on either
side of the center line in legible figures or noted in the marking instructions
given to the notification center.
3. White lining performed by electronic means using aerial imagery.
White lining performed by electronic means shall follow the same requirements
as listed in subdivision 2 of this subsection.
4. A reference to the two nearest intersecting streets, if
available, or driving directions.
B. In the event that a proposed excavation or demolition
is planned at a single address [ at which there is no more than one
structure ], the area of proposed excavation or demolition may
[ , if geographically feasible, ] be described by dividing the
parcel or property into four quadrants [ as facing from
the perspective of facing the front of ] the property using the
center of the structure as the center point of the four quadrants. If no
structure exists on the property, the center of the parcel or property will be
used as the center point of the four quadrants. These four quadrants shall be
referred to as Front Left, Front Right, Rear Left, and Rear Right. If the
proposed area consists only of Front Left and Front Right quadrants, the term
"Front" shall be sufficient. If the proposed area of excavation
consists only of Rear Left and Rear Right quadrants, the term "Rear"
shall be sufficient. If the proposed area of excavation consists only of Front
Left and Rear Left quadrants, the term "Left Side" shall be sufficient.
If the proposed area of excavation consists only of Front Right and Rear Right
quadrants, the term "Right Side" shall be sufficient. If the proposed
area of excavation includes three out of the four quadrants, the entire
property may be used for the proposed excavation or demolition.
20VAC5-309-200. Reporting damage by calling 911.
In the event that damage to an underground utility line
results in the escape of any flammable, toxic, hazardous, or corrosive gas or
liquid, the excavator shall, in addition to complying with §§ 56-265.24 D
and E of the Code of Virginia, promptly report the damage to the appropriate
authorities by calling the 911 emergency telephone number.
VA.R. Doc. No. R12-3230; Filed September 23, 2012, 5:49 p.m.
w –––––––––––––––––– w
TITLE 22. SOCIAL SERVICES
DEPARTMENT FOR AGING AND REHABILITATIVE SERVICES
Final Regulation
REGISTRAR'S NOTICE:
Enactments 59 through 71 of Chapters 803 and 835 of the 2012 Acts of Assembly
abolished the Department for the Aging and transferred its regulations to the
newly created Department for Aging and Rehabilitative Services effective July
1, 2012. The following action transfers the Department for the Aging regulation
numbered 22VAC5-30
to the Department for Aging and Rehabilitative Services and renumbers the
regulation as 22VAC30-70.
This regulatory action is
excluded from the Administrative Process Act in accordance with § 2.2- 4006 A 4
a of the Code of Virginia, which excludes regulations that are necessary to
conform to changes in Virginia statutory law where no agency discretion is
involved. The Department for Aging and Rehabilitative Services will receive,
consider, and respond to petitions by any interested person at any time with
respect to reconsideration or revision.
Title of Regulation: 22VAC30-70. The Virginia Public
Guardian and Conservator Program (adding 22VAC30-70-10 through 22VAC30-70-60).
Statutory Authority: § 51.5-131 of the Code of
Virginia.
Effective Date: November 22, 2012.
Agency Contact: Vanessa S. Rakestraw, Ph.D., CRC, Policy
Analyst, Department for Aging and Rehabilitative Services, 8004 Franklin Farms
Drive, Richmond, VA 23229, telephone (804) 662-7612, FAX (804) 662-7663, TTY
(800) 464-9950, or email vanessa.rakestraw@dars.virginia.gov.
Summary:
All references to the Department for the Aging have been
changed to the Department for Aging and Rehabilitative Services to reflect the
name of the new agency that has been created to assume the powers of the former
Department of Rehabilitative Services and the Department for the Aging. This
new agency was created as a result of the Governor's reorganization of the
Executive Branch of state government. In addition to the agency name change,
the agency and chapter numbers to each section of the regulation have been
changed as a result of the regulation being promulgated by the newly created
agency. Also, references to Code of Virginia citations have been updated
accordingly.
CHAPTER 30 70
THE VIRGINIA PUBLIC GUARDIAN AND CONSERVATOR PROGRAM
22VAC5-30-10. 22VAC30-70-10. Definitions.
The following words and terms when used in this regulation
shall have the following meaning unless the context clearly indicates
otherwise:
"Advisory board" means the Virginia Public Guardian
and Conservator Advisory Board as authorized by §§ 2.2-2411 and 2.2-2412
of the Code of Virginia.
"Client" means a person who has been adjudicated
incapacitated and who is receiving services from a public guardian program.
"Conservator" means a person appointed by the court
who is responsible for managing the estate and financial affairs of an
incapacitated person and, where the context plainly indicates, includes a
"limited conservator" or a "temporary conservator." The term
includes (i) a local or regional program designated by the Department for
the Aging Department for Aging and Rehabilitative Services as a
public conservator pursuant to Article 2 (§ 2.2-711 et seq.) of Chapter 7 of
Title 2.2 §§ 51.5-149, 51.5-150, and 51.5-151 of the Code of
Virginia or (ii) any local or regional tax-exempt charitable organization
established pursuant to § 501(c)(3) of the Internal Revenue Code to provide
conservatorial services to incapacitated persons. Such tax-exempt charitable
organization shall not be a provider of direct services to the incapacitated
person. If a tax-exempt charitable organization has been designated by the Virginia
Department for the Aging (VDA) Virginia Department for Aging and
Rehabilitative Services as a public conservator, it may also serve as a
conservator for other individuals. Incorporated by reference to this definition
is the definition of "conservator" found in § 37.2-1000 of the
Code of Virginia and any successor language thereof.
"Department" means the Department for Aging and
Rehabilitative Services.
"Guardian" means a person appointed by the court
who is responsible for the personal affairs of an incapacitated person,
including responsibility for making decisions regarding the person's support,
care, health, safety, habilitation, education, therapeutic treatment, and, if
not inconsistent with an order of involuntary admission, residence. Where the
context plainly indicates, the term includes a "limited guardian" or
a "temporary guardian." The term includes (i) a local or regional
program designated by the Department for the Aging department as
a public guardian pursuant to Article 2 (§ 2.2-711 et seq.) of Chapter 7 of
Title 2.2 §§ 51.5-149, 51.5-150, and 51.5-151 of the Code of
Virginia or (ii) any local or regional tax-exempt charitable organization
established pursuant to § 501(c)(3) of the Internal Revenue Code to provide
guardian services to incapacitated persons. Such tax-exempt charitable
organization shall not be a provider of direct services to the incapacitated
person. If a tax-exempt charitable organization has been designated by the Virginia
Department for the Aging department as a public guardian, it may
also serve as a guardian for other individuals. Incorporated by reference to
this definition is the definition of "guardian" found in § 37.2-1000
of the Code of Virginia and any successor language thereof.
"Incapacitated person" means an adult who has been
found by a court to be incapable of receiving and evaluating information
effectively or responding to people, events, or environments to such an extent
that the individual lacks the capacity to (i) meet the essential requirements
for his health, care, safety, or therapeutic needs without the assistance or
protection of a guardian or (ii) manage property or financial affairs or
provide for his support or for the support of his legal dependents without the
assistance or protection of a conservator. A finding that the individual
displays poor judgment alone shall not be considered sufficient evidence that
the individual is an incapacitated person within the meaning of this
definition. A finding that a person is incapacitated shall be construed as a
finding that the person is "mentally incompetent" as that term is
used in Article II, Section 1 of the Constitution of Virginia and Title 24.2 of
the Code of Virginia unless the court order entered pursuant to this chapter
specifically provides otherwise. Incorporated by reference to this definition
is the definition of "incapacitated person" found in § 37.2-1000 of
the Code of Virginia and any successor language thereof.
"Indigency" means the client is a current recipient
of a state-funded or federally funded public assistance program for the
indigent or as otherwise defined in § 19.2-159 of the Code of Virginia.
"Least restrictive alternatives" means, but is not
limited to money management services including bill payer and representative
payee services, care management, and services provided pursuant to a financial
or health care power of attorney.
"Minimal fee" means allowable fees collected or
payable from government sources and shall not include any funds from an
incapacitated person's estate.
"Public guardian program" means a local or regional
public or private nonprofit entity or program designated by VDA the
department as a public guardian, a public conservator or both, pursuant to §§
2.2-712 and 2.2-713 §§ 51.5-150 and 51.5-151 of the Code of
Virginia, and operating under a contract entered into with VDA the
department.
22VAC5-30-20. 22VAC30-70-20. Introduction and
purpose.
A. Introduction. Pursuant to § 2.2-711 § 51.5-149
of the Code of Virginia, the General Assembly declared that the policy of the
Commonwealth is to ensure the appointment of a guardian or conservator to
persons who cannot adequately care for themselves because of incapacity to meet
essential living requirements where (i) the incapacitated person is indigent,
and (ii) there is no other proper and suitable person willing and able to serve
in such capacity.
B. Purpose. This regulation sets forth requirements for the
statewide program of local and regional public guardian programs and
establishes the requirements for local and regional entities to operate a
designated public guardian program.
22VAC5-30-30. 22VAC30-70-30. Public guardian
programs.
A. Designation. VDA The department shall select
public guardian programs in accordance with the requirements of the Virginia
Public Procurement Act. Only those programs that contract with VDA the
department will be designated as public guardian programs. Funding for
public guardian programs is provided by the appropriation of general funds.
B. Authority. A public guardian program appointed as a
guardian, a conservator, or both as a guardian and conservator, shall have all
the powers and duties specified in Article 1 (§ 37.2-1000 et seq.) of Chapter
10 of Title 37.2 of the Code of Virginia, except as otherwise specifically
limited by a court.
C. Structure.
1. Each public guardian program shall have a program director
who supervises and is responsible for providing guardianship services to any
incapacitated persons assigned by the court and to provide overall
administration for the public guardian program. The program director must be a
full-time employee of the program and have experience as a service provider or
administrator in one or more of the following areas: social work, case
management, mental health, nursing or other human service programs. The program
director must also demonstrate, by objective criteria, a knowledge and
understanding of Virginia's guardianship laws, alternatives to guardianship,
and surrogate decision making activities. The program director shall attend all
training and activities required by VDA the department.
2. Each public guardian program shall establish a multidisciplinary
panel to (i) screen cases for the purpose of ensuring that appointment of a
guardian or conservator is appropriate under the circumstances and is the least
restrictive alternative available to assist the incapacitated person. This
screening shall include a duty to recommend the most appropriate limitations on
the power of the guardian or conservator, if any, to ensure that the powers and
duties assigned are the least restrictive, and (ii) annually review cases being
handled by the program to ensure that a guardian or conservator appointment
remains appropriate. Composition of a multidisciplinary panel should include
representatives from various human services agencies serving the city, county,
or region where the public guardian program accepts referrals. If serving a
region, the multidisciplinary panel shall have at least one representative from
each local jurisdiction within the region. To the extent appropriate
disciplines are available, this panel should include but is not limited to
representation from:
a. Local departments of social services, adult protective
services;
b. Community services boards or behavioral health authorities;
c. An attorney licensed by the Virginia State Bar;
d. Area agencies on aging;
e. Local health departments;
f. Nursing home, assisted living, and group home
administrators; and
g. Physicians and community representatives.
D. Client ratio to paid staff.
1. Each public guardian program shall maintain a direct
service ratio of clients to paid staff that does not exceed VDA's the
department's established ideal ratio of 20 incapacitated persons to every
one paid full-time staff person 20:1.
2. Each public guardian program shall have in place a plan to
immediately provide notice to the circuit court(s) in its jurisdiction and to VDA
the department when the program determines that it may exceed its ideal
ratio of clients to paid staff.
3. In an emergency or unusual circumstance, each program, in
its discretion, may exceed VDA's the department's established
ideal ratio by no more than five additional incapacitated persons. Each program
shall have in place a policy to immediately provide notice to VDA the
department when such an emergency or unusual circumstance occurs and when
the emergency or unusual circumstance ends and the ideal ratio has returned to
20:1. The notice to VDA the department shall comply with policy
established by VDA the department. Other than an emergency or
unusual circumstance as described in the preceding sentence, a waiver must be
requested to exceed VDA's the department's established ideal
ratio. VDA The department, in consultation with the advisory
board, shall establish written procedures for public guardian programs to
obtain appropriate waivers regarding deviations in the ideal ratio of clients
to paid staff. Procedures shall comply with §§ 2.2-712 and 2.2-713 §§
51.5-150 and 51.5-151 of the Code of Virginia. VDA The department
shall report waiver requests and status of granted waivers to the advisory
board at its regularly scheduled meetings. VDA The department
shall review such waivers every six months to ensure that there is no immediate
threat to the person or property of any incapacitated person nor that exceeding
VDA's the department's established ideal ratio is having or will
have a material and adverse effect on the ability of the program to properly
serve all of the incapacitated persons it has been designated to serve.
E. Appointments.
1. Prior to the public guardian program accepting an
individual for services, the multidisciplinary panel, described in 22VAC5-30-30
C 2, 22VAC30-70-30 C 2 shall screen referrals to ensure that:
a. The public guardian program is appointed as guardian, or
conservator, or both only in those cases where guardianship or conservatorship is
the least restrictive alternative available to assist the individual;
b. The appointment is consistent with serving the type of
client identified by the established priorities of the public guardian program;
c. The individual cannot adequately care for himself;
d. The individual is indigent; and
e. There is no other proper or suitable person or entity to
serve as guardian.
f. In the case of an individual who receives case management
services from a community services board (CSB) or behavioral health authority
(BHA), the multidisciplinary panel may also request the results of the
"determination of capacity" as authorized by 12VAC35-115-145
(Determination of capacity to give consent or authorization) and verification
that no other person is available or willing to serve as guardian pursuant to
12VAC35-115-146 E (Authorized representatives).
2. Appointments by a circuit court shall name the public
guardian program, rather than an individual person, as the guardian, the
conservator or both guardian and conservator.
3. A public guardian program shall only accept appointments as
guardian, conservator, or both guardian and conservator that generate no fee or
that generate a minimal fee.
F. Services.
1. A public guardian program shall have a continuing duty to seek
a proper and suitable person who is willing and able to serve as guardian,
conservator, or both guardian and conservator for the incapacitated person.
2. The guardian or conservator shall encourage the
incapacitated person to participate in decisions, to act on his own behalf, and
to develop or regain the capacity to manage his personal affairs to the extent
feasible.
3. The multidisciplinary panel, described in 22VAC5-30-30
C 2, 22VAC30-70-30 C 2 shall review active cases at least once every
12 months to determine that:
a. The client continues to be incapacitated;
b. The client continues to be indigent; and
c. There is no other proper or suitable person or entity to
serve as guardian, conservator, or both guardian and conservator.
4. Each public guardian program shall set priorities with
regard to services to be provided to incapacitated persons in accordance with
its contract with VDA the department.
5. Each public guardian program shall develop written
procedures and standards to make end-of-life decisions or other health-related
interventions in accordance with the expressed desires and personal values of
the incapacitated person to the extent known. If expressed desires or personal
values are unknown, then written procedures, including an ethical decision-making
process, shall be used to ensure that the guardian or conservator acts in the
incapacitated person's best interest and exercises reasonable care, diligence
and prudence on behalf of the client.
6. The public guardian program shall avoid even the appearance
of a conflict of interest or impropriety when dealing with the needs of the
incapacitated person. Impropriety or conflict of interest arises where the
public guardian program has some personal or agency interest that might be
perceived as self-serving or adverse to the position or the best interest of
the incapacitated person. Examples include, but are not limited to, situations
where the public guardian program provides services such as housing, hospice or
medical care directly to the client. VDA The department reserves
the right to monitor all administrative, programmatic, and financial activities
related to the public guardian program to ensure compliance with the terms of
the contract between VDA the department and the public guardian
program.
7. Each public guardian program and its employees are required
to report any suspected abuse, neglect, or exploitation in accordance with §
63.2-1606 of the Code of Virginia that provides for the protection of aged or
incapacitated adults, mandates reporting, and provides for a penalty for
failure to report.
8. Each public guardian program shall submit data and reports
as required by VDA the department and maintain compliance with VDA
the department's program guidelines. VDA The department
shall periodically monitor administrative, programmatic, and financial
activities related to the public guardian program to ensure compliance with the
terms of the contract between the public guardian program and VDA the
department.
22VAC5-30-40. 22VAC30-70-40. Personnel standards.
A. Each paid staff who is working in the public guardian
program and has direct contact with clients or client estates shall:
1. Complete an orientation program concerning guardian and
conservator duties to include the following subjects:
a. Privacy and confidentiality requirements;
b. Recordkeeping;
c. Services provided, and standards for these services;
d. A historical and factual review about the needs of the
elderly and people with disabilities; and
e. Indications of and actions to be taken where adult abuse,
neglect, or exploitation is suspected.
2. Have a satisfactory work record and be a person of good
character; demonstrate a concern for the well-being of others to the extent
that the individual is considered suitable to be entrusted with the care,
guidance, and protection of an incapacitated person; and have not been
convicted of any criminal offense involving any physical attack, neglect or
abuse of a person, lying, cheating, or stealing nor convicted of any felony. A
criminal record check will be conducted on each person hired on or after
January 1, 2009.
3. Be free of illegal drug use as confirmed by a drug
screening test conducted prior to the assumption of any duties with an
incapacitated person for each person hired on or after January 1, 2009.
4. Demonstrate, by objective criteria, knowledge of Virginia's
guardianship laws and alternatives to guardianship. For each person hired on or
after January 1, 2009, minimum education requirements apply and include a high
school diploma or general education diploma (GED) from a Virginia accredited
program and training or course work on (i) the duties and powers of guardians
and conservators in Virginia, including an understanding of surrogate decision
making and how it differs from substituted judgment decision-making standards,
(ii) mandatory reporting requirements to the Department of Social Services and
Commissioner of Accounts where applicable, and (iii) working with special needs
populations including individuals with physical and mental disabilities.
Program directors have additional requirements as specified in 22VAC5-30-30
C 1 22VAC30-70-30 C 1.
5. Participate in mandatory training programs required by VDA
the department.
B. Volunteers.
1. Volunteers may be recruited and used to supplement paid
staff. However, volunteers shall not be included in the public guardian program
direct service ratio of 20 incapacitated persons to every one paid staff person
as required under 22VAC5-30-30 D 1 22VAC30-70-30 D 1.
2. Volunteers may not exercise the authority of a guardian or
conservator.
3. Each public guardian program that uses volunteers shall
develop and implement written procedures for volunteer management and
supervision including requirements that each volunteer shall:
a. Complete an orientation program that provides an overview
of the Virginia Public Guardian and Conservator Program (§ 2.2-711 et seq.
(§§ 51.5-149,
51.5-150,
and 51.5-151
of the Code of Virginia).
b. Complete an orientation program that provides an overview
of the local public guardian program for which the person intends to serve as a
volunteer, including (i) services provided by the local program, (ii) specific
duties of the volunteer, (iii) privacy and confidentially requirements, (iv)
recordkeeping and documentation requirements, and (v) indications of and action
to be taken where adult abuse, neglect, or exploitation is suspected.
c. Have a satisfactory work record and personal record and be
a person of good character and have not been convicted of any criminal offense
involving any physical attack, neglect or abuse of a person, lying, cheating,
or stealing nor convicted of any felony. A criminal record check will be
conducted on each volunteer accepted by the local program on or after January
1, 2009.
22VAC5-30-50. 22VAC30-70-50. Recordkeeping.
A. Each public guardian program shall maintain an accurate
and complete client record for each incapacitated person. Records shall be kept
confidential. Access to client records shall be limited to the client's legal
representative; as directed by court order; as directed by duly authorized
government authorities or as specifically authorized by the Code of Virginia or
federal statutes, including by written consent of the client's legal
representative. Provision shall be made for the safe storage of client records
or accurate and legible reproductions for a minimum of five years following
termination of the guardian or conservator court order.
B. The client's record shall contain a Virginia Uniform
Assessment Instrument (UAI) or a similar comprehensive assessment instrument, a
care plan, a values history, the annual report by guardians submitted to the
Department of Social Services as required by § 37.2-1021 § 64.2-2020
of the Code of Virginia, the annual accounting to the Commissioner of Accounts
as required by § 26-17.4 § 64.2-1305 of the Code of Virginia, and
all applicable court orders and petitions. A client's record shall be completed
and on file within 60 days of the program's appointment as guardian.
C. Each public guardian program shall maintain all records,
provide reports, including audit information and documents in accordance with
its contract with VDA the department.
22VAC5-30-60. 22VAC30-70-60. Evaluation and
monitoring of public guardian programs.
VDA The department shall periodically
administer, monitor, evaluate, provide technical assistance and expertise, and
shall ensure fiscal accountability and quality of service of public guardian
programs.
VA.R. Doc. No. R13-3313; Filed September 25, 2012, 11:28 a.m.
STATE BOARD OF SOCIAL SERVICES
Proposed Regulation
Title of Regulation: 22VAC40-730. Investigation of
Child Abuse and Neglect in Out of Family Complaints (amending 22VAC40-730-10, 22VAC40-730-20,
22VAC40-730-30, 22VAC40-730-40, 22VAC40-730-60, 22VAC40-730-70, 22VAC40-730-80,
22VAC40-730-90, 22VAC40-730-100, 22VAC40-730-110, 22VAC40-730-115,
22VAC40-730-130).
Statutory Authority: § 63.2-217 of the Code of
Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: December 21, 2012.
Agency Contact: Mary Walter, Child Protective Services
Consultant, Department of Social Services, Division of Family Services, 801
East Main Street, 11th Floor, Richmond, VA 23219, telephone (804) 726-7569, FAX
(804) 726-7499, TTY (800) 828-1120, or email mary.walter@dss.virginia.gov.
Basis: Section 63.2-217 of the Code of Virginia
authorizes the State Board of Social Services to promulgate regulations to
carry out the administration of social services in the Commonwealth. Sections
63.2-1506, 63.2-1511 and 63.2-1516.1 of the Code of Virginia provide additional
legal mandates for child protective services (CPS) investigations in out of
family settings.
Purpose: As a result of a review of 22VAC40-730,
Investigation of Child Abuse and Neglect in Out of Family Complaints,
inconsistencies were identified with definitions in 22VAC40-705, Child
Protective Services, which sets out the main requirements of CPS processes.
Proposed changes to 22VAC40-730 provide technical amendments that are necessary
to ensure conformity in definitions and content between CPS regulations
providing for the investigation of child abuse and neglect. Conformity across
CPS regulations is essential for consistency in critical decisions involving
the health, safety, and welfare of children and families involved in the CPS
process. The goal of updating definitions and correcting inconsistencies is to
provide clarity for local departments of social services when conducting
investigations of child abuse and neglect in out of family complaints.
Substance: Substantive changes to the regulation
include: (i) incorporating by reference the definitions of Child Protective Services
regulation 22VAC40-705; (ii) eliminating duplicate definitions; (iii)
clarifying existing definitions to reflect updated terminology; and (iv)
conforming language throughout the regulation to reflect updated definitions as
appropriate. Because the definitions and requirements of 22VAC40-705 must be
followed in out of family CPS complaints, conformity in definitions and content
between the two regulations is essential to maintain consistency across
regulations for the investigation of child abuse and neglect.
Issues: The primary advantage of this proposed
regulatory action is to promote consistency for local departments of social
services authorized by the Code of Virginia to conduct CPS investigations in
out of family complaints; thus, providing for consistency in investigations
involving alleged abusers and victims and families and proper coordination with
other regulatory authorities. This regulatory action poses no disadvantages to
the public or the Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The State
Board of Social Services (Board) proposes to amend its regulations that govern
the investigation of child abuse and neglect in out of family complaints to
make definitions and regulatory language consistent between these regulations
and regulations that govern child protective services (CPS) (22VAC40-705).
Result of Analysis. Benefits likely outweigh costs for all
proposed changes.
Estimated Economic Impact. Current language in the Board's
regulations that govern the investigation of child abuse and neglect in out of
family complaints is stylistically, but not substantively, inconsistent with
the language in its CPS regulations. Since all child abuse complaints must be investigated
in a manner that is consistent with the CPS regulations, the Board proposes to
modify definitions and regulatory language in these proposed regulations so
that they mirror the CPS regulations. For instance, the Board proposes to
change every reference to "complain" to read "valid
complaint" instead and propose to use the word "department"
instead of "agency" because that is the phrasing used in the CPS
regulations.
All of the changes that are proposed for these regulations will
harmonize the language used with that in the CPS regulations but will not
change any investigatory practices. Consequently, no affected entity is likely
to incur any costs on account of these regulatory changes. The clarity that
these changes bring will, however, benefit individuals who found the language
differences between the regulations confusing.
Businesses and Entities Affected. These proposed regulatory
changes will affect all 120 local Departments of Social Services.
Localities Particularly Affected. No locality will be
particularly affected by this proposed regulatory action.
Projected Impact on Employment. This proposed regulatory action
is unlikely to have any effect on employment in the Commonwealth.
Effects on the Use and Value of Private Property. These proposed
regulatory changes are unlikely to affect the use or value of private property
in the Commonwealth.
Small Businesses: Costs and Other Effects. No small business is
likely to incur any costs on account of this regulatory action.
Small Businesses: Alternative Method that Minimizes Adverse
Impact. No small business is likely to incur any costs on account of this
regulatory action.
Real Estate Development Costs. This regulatory action will
likely have no effect on real estate development costs in the Commonwealth.
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 36 (06). Section
2.2-4007.04 requires that such economic impact analyses include, but need not
be limited to, the projected number of businesses or other entities to whom the
regulation would apply, the identity of any localities and types of businesses
or other entities particularly affected, the projected number of persons and
employment positions to be affected, the projected costs to affected businesses
or entities to implement or comply with the regulation, and the impact on the
use and value of private property. Further, if the proposed regulation has
adverse effect on small businesses, § 2.2-4007.04 requires that such
economic impact analyses include (i) an identification and estimate of the
number of small businesses subject to the regulation; (ii) the projected
reporting, recordkeeping, and other administrative costs required for small
businesses to comply with the regulation, including the type of professional
skills necessary for preparing required reports and other documents; (iii) a
statement of the probable effect of the regulation on affected small
businesses; and (iv) a description of any less intrusive or less costly
alternative methods of achieving the purpose of the regulation. The analysis
presented above represents DPB's best estimate of these economic impacts.
Agency's Response to Economic Impact Analysis: The
Department of Social Services concurs with the economic impact analysis
prepared by the Department of Planning and Budget.
Summary:
The State Board of Social Services proposes to amend its
regulation governing the investigation of child abuse and neglect in out of
family complaints to make definitions and regulatory language consistent
between this regulation and the regulation that governs child protective
services (22VAC40-705).
Part I
Definitions
22VAC40-730-10. Definitions.
The In addition to the definitions contained in
22VAC40-705-10, the following words and terms when used in conjunction with
this chapter shall have the following meanings unless the context clearly
indicates otherwise:
"Caretaker," for the purpose of this chapter,
means any individual determined to have the responsibility of caring for a
child.
"Child day center" means a child day program
operated in other than the residence of the provider or any of the children in
care, responsible for the supervision, protection, and well-being of children
during absence of a parent or guardian, as defined in § 63.2-100 of the Code of
Virginia. For the purpose of this chapter, the term shall be limited to include
only state licensed child day centers and religiously exempted child day
centers.
"Child Protective Services" means the
identification, receipt and immediate investigation of complaints and reports
of child abuse and neglect for children under 18 years of age. It also includes
documenting, arranging for, and providing social casework and other services
for the child, his family, and the alleged abuser.
"Complaint" means a valid report of suspected
child abuse or neglect which must be investigated by the local department of
social services.
"Department" means the Department of Social
Services.
"Disposition" means the determination of whether
abuse or neglect occurred.
"Child day program" means a regularly operating
service arrangement for children where, during the absence of a parent or
guardian, a person or organization has agreed to assume responsibility for the
supervision, protection, and well-being of children as defined in § 63.2-100 of
the Code of Virginia.
"Facility" means the generic term used to describe
the setting in out of family abuse or neglect and for the purposes of this
regulation includes schools (public and private), private or state-operated
hospitals or institutions, child day centers programs, state
regulated family day homes, and residential facilities.
"Facility administrator" means the on-site
individual responsible for the day-to-day operation of the facility.
"Family day home," for the purpose of this
chapter, means a child day program as defined in § 63.2-100 of the Code of
Virginia where the care is provided in the provider's home and is state
regulated; locally approved or regulated homes are not included in this
definition.
"Founded" means that a review of the facts shows
by a preponderance of the evidence that child abuse and/or neglect has
occurred. A determination that a case is founded shall be based primarily on
first source evidence; in no instance shall a determination that a case is
founded be based solely on indirect evidence or an anonymous complaint.
"Local agency" means the local department of
social services responsible for conducting investigations of child abuse or
neglect complaints as per § 63.2-1503 of the Code of Virginia.
"Participate" means to take part in the activities
of the joint investigation as per a plan for investigation developed by the CPS
worker with the facility administrator or regulatory authority or both.
"Physical plant" means the physical
structure/premises of the facility.
"Regulatory authority" means the department or
state board that is responsible under the Code of Virginia for the licensure or
certification of a facility for children.
"Residential facility" means a publicly or
privately owned facility, other than a private family home, where 24-hour care,
maintenance, protection, and guidance is provided to children separated
from their parents or legal guardians, that is subject to licensure or
certification pursuant to the provisions of the Code of Virginia and includes,
but is not limited to, group homes, group residences, secure custody
facilities, self-contained residential facilities, temporary care
facilities, and respite care facilities.
Part II
Policy
Article 1
Out of Family Investigation Policy
22VAC40-730-20. General.
Complaints Valid complaints of child abuse or
neglect involving caretakers in out of family settings are for the purpose of
this chapter valid complaints in state licensed and religiously exempted
child day centers programs, regulated family day homes,
private and public schools, group residential facilities, hospitals,
or institutions. These valid complaints shall be investigated by
qualified staff employed by local departments of social services or welfare.
Staff shall be determined to be qualified based on criteria
identified by the department. All staff involved in investigating a valid
complaint must be qualified.
This regulation is limited in scope to the topics contained
herein. All issues regarding investigations, findings and appeals are found in
Child Protective Services, 22VAC40-705, and as such are cross referenced and
incorporated into and apply to out of family cases to the extent that they are
not inconsistent with this regulation.
In addition to the authorities and the responsibilities
specified in department policy for all child protective services
investigations, the policy for investigations in out of family settings is set
out in 22VAC40-730-30 through 22VAC40-730-130.
22VAC40-730-30. Initial Safety assessment.
If the valid complaint information received is such
that the local agency department is concerned for the child's
immediate safety, contact must be initiated with the facility administrator
immediately to ensure the child's safety. If, in the judgment of the child
protective services/CPS worker, the situation is such that the child or
children should be immediately removed from the facility, the parent or
parents, guardian or agency holding custody shall be notified immediately to
mutually develop a safety plan which addresses the child's or children's
immediate safety needs.
22VAC40-730-40. Involvement of regulatory agencies.
The authority of the local agency department to
investigate valid complaints of alleged child abuse or neglect in
regulated facilities overlaps with the authority of the public agencies which
have regulatory responsibilities for these facilities to investigate alleged
violations of standards.
1. For valid complaints in state regulated facilities
and religiously exempted child day centers programs, the local agency
department shall contact the regulatory authority and share the valid
complaint information. The regulatory authority will appoint a staff person to
participate in the investigation to determine if there are regulatory concerns.
2. The CPS worker assigned to investigate and the appointed
regulatory staff person will discuss their preliminary joint investigation
plan.
a. The CPS worker and the regulatory staff person shall review
their respective needs for information and plan the investigation based on when
these needs coincide and can be met with joint interviews or with information
sharing.
b. The investigation plan must keep in focus the policy
requirements to be met by each party as well as the impact the investigation
will have on the facility's staff, the victim child or children, and the other
children at the facility.
22VAC40-730-60. Contact with CPS regional coordinator.
A. The local agency department shall contact
the department's regional CPS coordinator as soon as is practical after the
receipt of the valid complaint. The regional coordinator will review the
procedures to be used in investigating the valid complaint and provide
any case planning assistance the local worker may need.
B. The regional coordinator shall be responsible for
monitoring the investigative process and shall be kept informed of developments
which substantially change the original case plan.
C. At the conclusion of the investigation the local agency
department shall contact the department's regional CPS coordinator to
review the case prior to notifying anyone of the disposition. The regional
coordinator shall review the facts gathered and policy requirements for
determining whether or not abuse or neglect occurred. However, the statutory
authority for the disposition rests with the local agency department.
This review shall not interfere with the requirement to complete the
investigation in the legislatively mandated time frame.
22VAC40-730-70. Contact with the facility administrator.
A. The CPS worker shall initiate contact with the facility
administrator or designee at the onset of the investigation.
B. The CPS worker shall inform the facility administrator or
his designee of the details of the valid complaint. When the
administrator or designee chooses to participate in the joint investigation, he
will be invited to participate in developing the plan for investigation,
including decisions about who is to be present in interviews. If the
administrator or designee is the alleged abuser or neglector, this contact
should be initiated with the individual's superior, which may be the board of
directors, etc. If there is no superior, the CPS worker may use discretion in
sharing information with the administrator.
C. Arrangements are to be made for:
1. Necessary interviews;
2. Observations including the physical plant; and
3. Access to information, including review of pertinent
policies and procedures.
D. The CPS worker shall keep the facility administrator or
designee apprised of the progress of the investigation. In a joint
investigation with a regulatory staff person, either party may fulfill this
requirement.
22VAC40-730-80. Contact with the alleged victim child.
The CPS worker shall interview the alleged victim child and
shall determine along with a regulatory staff person or facility administrator
or designee who may be present in the interview. Where there is an apparent
conflict of interest, the CPS agency local department shall use
discretion regarding who is to be included in the interview.
22VAC40-730-90. Contact with the alleged abuser or neglector.
A. The CPS worker shall interview the alleged abuser or
neglector according to a plan developed with the regulatory staff person,
facility administrator, or designee. Where there is an apparent conflict of
interest, the CPS agency local department shall use discretion
regarding who is to be included in the interview. At the onset of the initial
interview with the alleged abuser or neglector, the CPS worker shall notify him
in writing of the general nature of the valid complaint and the identity
of the alleged victim child to avoid any confusion regarding the purpose of the
contacts.
B. The alleged abuser or neglector has the right to involve a
representative of his choice to be present during his interviews.
22VAC40-730-100. Contact with collateral children.
The CPS worker shall interview nonvictim children as
collaterals if it is determined that they may have information which would help
in determining the finding in the valid complaint. Such contact should
be made with prior consent of the nonvictim child's parent, guardian or
agency holding custody. If the situation warrants contact with the nonvictim
child prior to such consent being obtained, the parent, guardian or agency
holding custody should be informed as soon as possible after the interview
takes place.
22VAC40-730-110. Report the findings.
Written notification of the findings shall be submitted to
the facility administrator or designee and the regulatory staff person
involved in the investigation, if applicable, at the same time the alleged
abuser or neglector is notified.
If the facility administrator is the abuser or neglector,
written notification of the findings shall be submitted to his superior if
applicable.
22VAC40-730-115. Procedures for conducting an investigation of
a teacher, principal or other person employed by a local school board or
employed in a nonresidential school operated by the Commonwealth.
A. Each local department of social services and local school
division shall adopt a written interagency agreement as a protocol for
investigating child abuse and neglect reports against school personnel. The
interagency agreement shall be based on recommended procedures for conducting
investigations developed by the Departments of Education and Social Services.
B. These procedures for investigating school personnel
amplify or clarify other Child Protection Services (CPS) regulations.
1. In determining the validity of a report of suspected abuse
or neglect pursuant to § 63.2-1511 of the Code of Virginia, the local
department must consider whether the school employee used reasonable and
necessary force. The use of reasonable and necessary force does not constitute
a valid report.
2. The local department shall conduct a face-to-face interview
with the person who is the subject of the valid complaint or report.
3. At the onset of the initial interview with the alleged
abuser or neglector, the local department shall notify him in writing of the
general nature of the valid complaint and the identity of the alleged
child victim regarding the purpose of the contacts.
4. The written notification shall include the information that
the alleged abuser or neglector has the right to have an attorney or other
representative of his choice present during his interviews. However, the
failure by a representative of the Department of Social Services to so advise
the subject of the valid complaint shall not cause an otherwise
voluntary statement to be inadmissible in a criminal proceeding.
5. If the local department determines that the alleged
abuser's actions were within the scope of his employment and were taken in good
faith in the course of supervision, care or discipline of students, then the
standard for determining a founded finding of abuse or neglect is whether such
acts or omissions constituted gross negligence or willful misconduct.
6. Written notification of the findings shall be submitted to
the alleged abuser or neglector. The notification shall include a summary of
the investigation and an explanation of how the information gathered supports
the disposition.
7. The written notification of the findings shall inform the
alleged abuser or neglector of his right to appeal.
8. The written notification of the findings shall inform the
alleged abuser or neglector of his right to review information about himself in
the record with the following exceptions:
a. The identity of the person making the report.
b. Information provided by any law-enforcement official.
c. Information that may endanger the well-being of the child.
d. The identity of a witness or any other person if such
release may endanger the life or safety of such witness or person.
No information shall be released by the local department in
cases that are being criminally investigated unless the release is authorized
by the investigating law-enforcement officer or his supervisor or the local
attorney for the Commonwealth.
Article 2
Local Staff Qualifications in Out of Family Investigations
22VAC40-730-130. Requirements.
A. In order to be determined qualified to conduct
investigations in out of family settings, local CPS staff workers
shall meet minimum education standards established by the department including:
1. Documented competency in designated general knowledge and
skills and specified out of family knowledge and skills; and
2. Completion of out of family policy training.
B. The department and each local agency department
shall maintain a roster of personnel determined qualified to conduct these out
of family investigations.
VA.R. Doc. No. R11-2527; Filed September 20, 2012, 3:42 p.m.
GENERAL NOTICES/ERRATA
STATE AIR
POLLUTION CONTROL BOARD
Proposed Amendments to Northern
Virginia Vehicle Emissions Inspection and Maintenance Program
Notice of action: The State Air Pollution Control Board is
considering amendments to the Regulation for the Control of Motor Vehicle
Emissions in Northern Virginia; specifically, provisions to implement a clean
screen program that allows a motor vehicle owner to voluntarily certify
compliance with the emissions standards by means of on-road remote sensing. The
regulation of the board affected by this regulatory action is: Regulation for
the Control of Motor Vehicle Emissions in Northern Virginia, 9VAC5-91, Clean
Screen (Rev. MN).
Purpose of notice: The board is seeking comments through the
Department of Environmental Quality (DEQ) on the (i) proposal, (ii) costs and
benefits of the proposal, (iii) effects of the proposal on farm and forest land
preservation, and (iv) impacts of the proposal on small businesses. The board
is also seeking comment as to whether infrared light remote sensing devices
(RSD) are the only technology to be used for clean screening vehicles or
whether the regulation should include other technologies such as remote
on-board diagnostics (OBD III). To that end, the proposal in 9VAC5-91-185
contains Option A (language that includes only infrared RSD) and Option B
(language that includes both infrared and OBDIII).
Public comment period: September 24, 2012, to October 25, 2012.
Public comment stage: Notice of Public Comment.
Description of proposal: The proposed amendments are being made
to conform to state law for the testing of emissions, including remote sensing,
from motor vehicles located or primarily operated in Northern Virginia.
Sections 46.2-1176 through 46.2-1187.3 of the Virginia Air Pollution Control
Law (Chapter 10 of Title 46.2 of the Code of Virginia) authorizes the State Air
Pollution Control Board to promulgate regulations for the control of motor
vehicle emissions and for emissions testing including remote sensing.
Specifically, the 2012 amendments to § 46.2-1178 C require the
establishment by regulation of a phase-in of on-road testing requirements
according to the following schedule: 10% of eligible vehicles subject to
inspection requirements between July 1, 2012, and before July 1, 2013; 20%
between July 1, 2013, and before July 1, 2014; and 30% after July 1, 2014.
The major provisions of the proposal are summarized below:
1. Include definitions that address the requirement for a clean
screen program including terms such as: "Clean screen vehicle,"
"Clean screen notification," Clean screen vehicle standard,"
"High emitter values," "Motor vehicle emissions,"
"On-road clean screen program," "On-road emissions inspector,"
"On-road emissions measurement," "On-road high emitter emissions
standard" and "Specific engine family."
2. Modify definitions as necessary to incorporate the clean
screen program into the existing emissions inspection program including:
"Confirmation test," "Emissions inspector," "Enhanced
emissions inspection program," "Inspection area," Inspection
fee," and "Remote sensing."
3. Provide clarity to distinguish between the high emitter
program and the clean screen program and the vehicle emission standards for
both. Add language that allows the criteria for clean screen vehicle selection
and standards to be adjusted to comply with federal program requirements.
4. Provide language to integrate the clean screen program into
the registration requirements of the enhanced emissions inspection program to
ensure compliance with any necessary provisions of the existing inspection
program.
5. Add provisions to address the legislative mandate to
implement the clean screen program according to the statutory schedule of no
more than 10% starting January 2012; no more than 20% starting January 2013;
and no more than 30% starting January 2014, and ensure the program is
compatible with the timing of the vehicle registration renewal notice from DMV.
This also includes provisions so that owners may utilize the clean screen
notification as proof of emissions inspection for vehicle registration purposes
and language to ensure the contractor identifying clean screen vehicles may
charge a fee for such notification that is comparable to the fee currently
charged at service stations conducting emissions inspections.
6. Provide language in the alternate language of 9VAC5-91-185,
Option B, necessary to allow for an on-road clean screen program utilizing
remote onboard diagnostics.
The current vehicle inspection program in Northern Virginia
requires that affected vehicles be presented to emissions inspection stations
biennially to receive an emissions inspection. This is accomplished through a
network of service stations, repair garages, and other similar facilities that
perform the inspections. Cars and trucks that weigh up to 10,000 pounds and are
24 years old and newer are subject to an exhaust emissions inspection using ASM
equipment which tests cars under "loaded" conditions using a
dynamometer. On-Board Diagnostics Systems (OBD) on vehicles so equipped is also
inspected. In addition, random testing of vehicles is accomplished using a
remote sensing device next to the roadway. Vehicles which fail the on-road test
are required to report to an inspection for an out-of-cycle test.
Locality particularly affected: The geographic coverage of the
program consists of the counties of Arlington, Fairfax, Loudoun, Prince
William, and Stafford and the cities of Alexandria, Fairfax, Falls Church, Manassas,
and Manassas Park. The amendments to the regulation establish an additional
means for an owner to demonstrate a vehicle's compliance with emissions
standards with no impact on air quality expected. Therefore, no locality in the
program area will bear any disproportionate material air quality impact from
any other locality within the program area.
How to comment: DEQ accepts written comments by email, fax, and
postal mail. All written comments must include the full name, address and
telephone number of the person commenting and be received by DEQ on the last
day of the comment period. Both oral and written comments are accepted at the
public hearing. DEQ prefers that comments be provided in writing, along with
any supporting documents or exhibits. All comments, exhibits and documents
received are part of the public record.
To review regulation documents: The proposal and an analysis
conducted by DEQ (including a summary, legal basis, purpose, substance, issues,
requirements more restrictive than federal, localities particularly affected,
public participation, economic impact, alternatives, regulatory flexibility
analysis, regulatory advisory panel, and family impact), are available on the
DEQ Air Public Notices for Regulations website (http://www.deq.state.va.us/Programs/Air/PublicNotices/AirRegulations.aspx).
The documents may also be obtained by contacting the DEQ representative named
below. The public may review the documents between 8:30 a.m. and
4:30 p.m. of each business day until the close of the public comment
period at the following DEQ locations:
1) Main Street Office, 629 East Main Street, 8th Floor,
Richmond, VA, telephone (804) 698-4070, and
2) Northern Regional Office, 13901 Crown Court, Woodbridge, VA,
telephone (703) 583-3800.
Contact Information: Mary E. Major, Department of Environmental
Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, (804)
698-4423, FAX (804) 698-4510, TDD (804) 698-4021, or email
mary.major@deq.virginia.gov.
APPRENTICESHIP
COUNCIL
Notice
of Periodic Review
Pursuant to Executive Order 14 (2010) and §§ 2.2-4007.1
and 2.2-4017 of the Code of Virginia, the Department of Labor and Industry and
the Virginia Apprenticeship Council are conducting a periodic review of
16VAC20-11, Public Participation Guidelines. The review of this regulation will
be guided by the principles in Executive Order 14 (2010) and § 2.2-4007.1
of the Code of Virginia.
The purpose of this review is to determine whether this
regulation should be terminated, amended, or retained in its current form.
Public comment is sought on the review of any issue relating to this
regulation, including whether the regulation (i) is necessary for the
protection of public health, safety, and welfare or for the economical
performance of important governmental functions; (ii) minimizes the economic
impact on small businesses in a manner consistent with the stated objectives of
applicable law; and (iii) is clearly written and easily understandable.
The comment period begins October 22, 2012, and ends on
November 13, 2012.
Comments may be submitted online to the Virginia Regulatory
Town Hall at http://www.townhall.virginia.gov/L/Forums.cfm.
Comments may also be sent to Reba O'Connor, Regulatory Coordinator, Department
of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, VA
23219, telephone (804) 371-2631, FAX (804) 786-8418, or email reba.oconnor@doli.virginia.gov.
Comments must include the commenter's name and address
(physical or email) information in order to receive a response to the comment
from the agency. Following the close of the public comment period, a report of
the periodic review will be posted on the Town Hall and published in the
Virginia Register of Regulations.
STATE
CORPORATION COMMISSION
Bureau
of Insurance
October 1, 2012
Administrative Letter 2012-10
To: All Property and
Casualty Insurers and Other Interested Parties
Re: Licensing of Public
Adjusters in Virginia, effective January 1, 2013
During the 2012 General Assembly session, the Virginia General
Assembly enacted legislation that established standards for the licensing of
public adjusters in the Commonwealth of Virginia. House Bill No. 872 and Senate
Bill No. 520, which currently appear in Article 4.1 of Chapter 18 (§§ 38.2-1845.1
through 38.2-1845.23) of Title 38.2 of the Code of Virginia, provide
that beginning on January 1, 2013, any resident and nonresident individual or
business entity that acts as a public adjuster in Virginia must obtain a
license from the State Corporation Commission's Bureau of Insurance
("Bureau").
This licensing requirement applies to any individual or
business entity that receives a salary, fee, commission, or other compensation,
either directly or indirectly, for investigating, negotiating, adjusting, or
providing advice to an insured in relation to first party claims arising under
insurance contracts that insure real or personal property of an insured with
the purpose of effecting the settlement of a claim on behalf of the insured.
All public adjuster applicants, including both individual and
business entities, are required to meet certain pre-licensing and renewal
requirements. All resident individual public adjuster applicants must: (i) pass
the Virginia pre-licensing Public Adjuster examination, (ii) obtain a Virginia
Criminal History Record Report from the Virginia State Police, (iii) pay a
$250.00 nonrefundable application processing fee, (iv) meet the delineated
continuing education ("CE") requirements discussed below, and (v)
certify via electronic attestation that they have, and will keep in force for
as long as the license remains in effect, a $50,000 bond in favor of the
Commonwealth with corporate sureties licensed by the Commission.
All licensed public adjusters are required to renew their
licenses every twenty-four (24) months from the original public adjuster
license issue date. In conjunction with this renewal process, Virginia resident
public adjusters must complete a minimum of twenty-four (24) hours of CE
courses, including three (3) hours of ethics, and pay a nonrefundable $15 CE
processing fee. If a resident public adjuster fails to meet such renewal or CE
requirements, the resident public adjuster’s license will not be renewed.
Article 4.1 of Chapter 18 of Title 38.2 requires that
nonresident public adjusters: (i) be in good standing and currently licensed or
otherwise authorized as a resident public adjuster in their home state, and
(ii) pay a $250.00 nonrefundable application processing fee. While nonresident
public adjusters must comply with the renewal requirements discussed above, the
corresponding CE requirements do not apply to nonresident public adjuster
licensees who have met the CE requirements of their home state.
Visit www.scc.virginia.gov/boi/pro/adj.aspx
to review the Public Adjuster Guide and beginning December 17, 2012, to submit
the electronic public adjuster application.
To register for the public adjuster pre-licensing examination,
which will be available on November 1, 2012, visit Pearson VUE's website, www.asisvcs.com/indhome.asp?CPCAT=1253INS.
To obtain a Virginia Criminal History Record Report from the
Virginia State Police, visit www.vsp.state.va.us.
Questions concerning this administrative letter may be
addressed to: Preston Winn, Manager, Producer Licensing Section, Bureau of
Insurance, State Corporation Commission, preston.winn@scc.virginia.gov,
telephone (804) 371-9631.
/s/ Jacqueline K. Cunningham
Commissioner of Insurance
BOARD
OF CORRECTIONS
Notice
of Periodic Review
Pursuant to Executive Order 14 (2010) and §§ 2.2-4007.1
and 2.2-4017 of the Code of Virginia, the Board of Corrections is currently
reviewing each of the regulations listed below to determine whether it should
be terminated, amended, or retained in its current form. The review of the
regulations will be guided by the principles in Executive Order 14 (2010) and
§ 2.2-4007.1 of the Code of Virginia. Each regulation will be reviewed to
determine whether the regulation (i) is necessary for the protection of public
health, safety, and welfare or for the economical performance of important
governmental functions; (ii) minimizes the economic impact on small businesses
in a manner consistent with the stated objectives of applicable law; and (iii)
is clearly written and easily understandable.
6VAC15-11, Public Participation Guidelines
6VAC15-70, Standards for Community Residential Programs
The comment period begins October 22, 2012, and ends on
November 21, 2012.
Comments may be submitted online to the Virginia Regulatory
Town Hall at http://www.townhall.virginia.gov/L/Forums.cfm.
Comments may also be sent to Jim Bruce, Agency Regulatory Coordinator, P.O. Box
26963, Richmond, VA 23261-6963, telephone (804) 674-3303, ext. 1130, FAX (804)
674-3017, or email james.bruce@vadoc.virginia.gov.
Comments must include the commenter's name and address
(physical or email) information in order to receive a response to the comment
from the agency. Following the close of the public comment period, a report of
the periodic review will be posted on the Town Hall and published in the
Virginia Register of Regulations.
DEPARTMENT OF ENVIRONMENTAL QUALITY
Total Maximum Daily Load Study for
Banister River in Halifax County
The Department of Environmental Quality (DEQ) will host a
public meeting on a water quality study for the Halifax County streams on
Thursday, November 1, 2012. The meeting will start at 7 p.m. in the Mary Bethune Complex,
Bethune Public Meeting Room located at 1030 Mary Bethune Street, Halifax, VA
24558. The purpose of the meeting is to provide information and discuss the
study with interested local community members and local government.
Banister River (VAC-L71R_BAN06A08, VAC-L71R_BAN04A00, and
VAC-L71R_BAN05A00) was identified in Virginia's Water Quality Assessment
Integrated Report as impaired for not supporting the Primary Contact Use. The
impairment is based on water quality monitoring data reports of sufficient
exceedances of Virginia's water quality standard for bacteria.
Winn Creek (VAC-L71R_WNN01A06) was identified in Virginia’s
Water Quality Assessment Integrated Report as impaired for not supporting the
Primary Contact Use. The impairment is based on water quality monitoring data
reports of sufficient exceedances of Virginia's water quality standard for
bacteria.
Gibson Creek (VAC-L71R_GIB01A08) was identified in Virginia's
Water Quality Assessment Integrated Report as impaired for not supporting the
Aquatic Life Use. The impairment is based on water quality monitoring data
reports of sufficient exceedances of Virginia's water quality standard for
dissolved oxygen.
Section 303(d) of the Clean Water Act and § 62.1-44.19:7 C of the Code of Virginia
require DEQ to develop total maximum daily loads (TMDLs) for pollutants
responsible for each impaired water contained in Virginia's 303(d) TMDL
Priority List and Report and subsequent Water Quality Assessment Reports.
During the study, DEQ will develop a total maximum daily load
for the impaired water. A TMDL is the total amount of a pollutant a water body
can contain and still meet water quality standards. To restore water quality,
pollutant levels have to be reduced to the TMDL amount.
The public comment period on materials presented at the Halifax
County meeting will extend from November 1, 2012, to December 3, 2012. For
additional information or to submit comments, contact Paula Nash, Virginia
Department of Environmental Quality, Blue Ridge Regional Office, 7705
Timberlake Road, Lynchburg, VA 24502, telephone (434) 582-6216 or email paula.nash@deq.viginia.gov.
Bacteria TMDL Modification of Pamunkey River Basin TMDL in Hanover, King
William, and New Kent Counties
The Department of Environmental Quality (DEQ) seeks public
comment from interested persons on proposed minor modifications of the total
maximum daily loads (TMDLs) developed for impaired segments Totopotomoy Creek
(F13R-02) and the Pamunkey River (F13E-02). The TMDL was approved by the
Environmental Protection Agency on August 2, 2006, and is available at http://www.deq.virginia.gov/portals/0/
DEQ/Water/TMDL/apptmdls/yorkrvr/pamunk.pdf.
Description of proposed changes to the Totopotomoy Creek
(F13R-02) TMDL: The Totopotomoy Sewage Treatment Plant (STP) (permit
#VA0089915) is a VPDES major municipal facility with a design flow of 0.010 MGD
(million gallons per day). In a recent modification, this facility was
mistakenly allocated to the Totopotomoy Creek watershed, when it should have
been allocated to the Pamunkey River (F13E-02) watershed. To correct this
error, DEQ proposes to revise the TMDL by taking the newly allocated WLA of
1.74E+10 E. coli (cfu/yr) that was assigned to the Totopotomoy STP and moving
it to Future Growth. This change will not affect the total WLA or LA values and
results in a 0% change with respect to the TMDL.
Description of proposed changes to the Pamunkey River (F13E-02)
TMDL:
1. The Totopotomoy Sewage Treatment Plant (STP) (permit
#VA0089915) is a VPDES major municipal facility with a design flow of 10 MGD
(million gallons per day). DEQ proposes to revise the TMDL by assigning a WLA
of 1.74E+13 E. coli (cfu/yr) to accommodate this facility at a maximum design
flow of 10 MGD and an E. coli concentration at the WQS of 126 cfu/100 ml. DEQ
proposes to allocate the WLA by retaining the existing Future Growth and subtracting
from Load Allocation (non-point source), which results in a change of the LA
value from 7.40E+12 to 7.22E+14 E. coli (cfu/yr). This will result in a
cumulative change of 2.4% with respect to the TMDL. In some circumstances, changes >1.0%
change with respect to the TMDL necessitate the need to consider a
re-evaluation of the TMDL model. In this case, the Tototpotomoy STP was a
discharger mistakenly left out of the TMDL during development and the TMDL for
this segment is contracted for redevelopment in 2013. Therefore, DEQ does not
believe the proposed WLA for the facility will cause or contribute to the
nonattainment of the Pamunkey River basin and the TMDL remodeling issue will be
resolved over the next year in the new TMDL.
2. DEQ proposes to correct the bacteria load allocation and
revise the reduction percentage values stated in Table 5.37 of the document to
be consistent with Table 3.6 (where livestock reductions of 99% are described)
and to accommodate load allocation revisions.
The public comment period for these modifications will begin on
October 22, 2012, and will end on November 23, 2012. Please send comments to
Margaret Smigo, Department of Environmental Quality, Piedmont Regional Office,
4969-A Cox Road, Glen Allen, VA 23060, email at margaret.smigo@deq.virginia.gov,
or FAX (Attn. Margaret Smigo) at (804) 527-5106. Following the comment period,
a modification letter and comments received will be sent to EPA for approval
final approval. For more information please contact Margaret Smigo.
DEPARTMENT OF FORESTRY
Notice of Periodic Review
Pursuant to Executive Order 14 (2010) and §§ 2.2-4007.1
and 2.2-4017 of the Code of Virginia, the Department of Forestry is conducting
a periodic review of 4VAC10-11, Public Participation Guidelines. The review of
this regulation will be guided by the principles in Executive Order 14 (2010)
and § 2.2-4007.1 of the Code of Virginia.
The purpose of this review is to determine whether this
regulation should be terminated, amended, or retained in its current form.
Public comment is sought on the review of any issue relating to this
regulation, including whether the regulation (i) is necessary for the
protection of public health, safety, and welfare or for the economical
performance of important governmental functions; (ii) minimizes the economic
impact on small businesses in a manner consistent with the stated objectives of
applicable law; and (iii) is clearly written and easily understandable.
The comment period begins October 22, 2012, and ends on
November 14, 2012.
Comments may be submitted online to the Virginia Regulatory
Town Hall at http://www.townhall.virginia.gov/L/Forums.cfm.
Comments may also be sent to Ron Jenkins, Assistant State Forester, Department
of Forestry, 900 Natural Resources Drive, Suite 800, Charlottesville, VA 22901,
telephone (434) 220-9022, FAX (434) 977-7749, or email ron.jenkins@dof.virginia.gov.
Comments must include the commenter's name and address
(physical or email) information in order to receive a response to the comment
from the agency. Following the close of the public comment period, a report of
the periodic review will be posted on the Town Hall and published in the
Virginia Register of Regulations.
STATE BOARD OF HEALTH
Notice of Periodic Review
Pursuant to Executive Order 14 (2010) and §§ 2.2-4007.1
and 2.2-4017 of the Code of Virginia, the Department of Health is currently
reviewing each of the regulations listed below to determine whether it should
be terminated, amended, or retained in its current form. The review of the
regulations will be guided by the principles in Executive Order 14 (2010) and
§ 2.2-4007.1 of the Code of Virginia. Each regulation will be reviewed to
determine whether the regulation (i) is necessary for the protection of public
health, safety, and welfare or for the economical performance of important
governmental functions; (ii) minimizes the economic impact on small businesses
in a manner consistent with the stated objectives of applicable law; and (iii)
is clearly written and easily understandable.
12VAC5-215, Rules and Regulations Governing Health Data
Reporting
12VAC5-216, Methodology to Measure Efficiency and Productivity
of Health Care Institutions
12VAC5-217, Regulations of the Patient Level Data System
12VAC5-218, Rules and Regulations Governing Outpatient Data
Reporting
The comment period begins October 22, 2012, and ends on
November 12, 2012.
Comments may be submitted online to the Virginia Regulatory
Town Hall at http://www.townhall.virginia.gov/L/Forums.cfm.
Comments may also be sent to Kim Barnes, Policy Planning Specialist, Department
of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7661, FAX (804) 864-7156,
or email kim.barnes@vdh.virginia.gov.
Comments must include the commenter's name and address (physical or email)
information in order to receive a response to the comment from the agency.
Following the close of the public comment period, a report of the periodic
review will be posted on the Town Hall and published in the Virginia Register
of Regulations.
Notice of Periodic Review
Pursuant to Executive Order 14 (2010) and §§ 2.2-4007.1
and 2.2-4017 of the Code of Virginia, the Department of Health is currently
reviewing each of the regulations listed below to determine whether it should
be terminated, amended, or retained in its current form. The review of the
regulations will be guided by the principles in Executive Order 14 (2010) and
§ 2.2-4007.1 of the Code of Virginia. Each regulation will be reviewed to
determine whether the regulation (i) is necessary for the protection of public
health, safety, and welfare or for the economical performance of important
governmental functions; (ii) minimizes the economic impact on small businesses
in a manner consistent with the stated objectives of applicable law; and (iii)
is clearly written and easily understandable.
12VAC5-220, Virginia Medical Care Facilities Certificate of
Public Need Rules and Regulations
12VAC5-408, Regulation for the Certificate of Quality Assurance
of Managed Care Health Insurance Plan (MCHIP) Licensees
The comment period begins October 22, 2012, and ends on November
12, 2012.
Comments may be submitted online to the Virginia Regulatory
Town Hall at http://www.townhall.virginia.gov/L/Forums.cfm. Comments may
also be sent to Carrie Eddy, Policy Analyst, Office of Licensure and
Certification, Department of Health, 9960 Mayland Drive, Suite 401, Richmond,
VA 23233, telephone (804) 367-2157, FAX (804) 527-4502, or email carrie.eddy@vdh.virginia.gov.
Comments must include the commenter's name and address (physical or email)
information in order to receive a response to the comment from the agency.
Following the close of the public comment period, a report of the periodic
review will be posted on the Town Hall and published in the Virginia Register
of Regulations.
DEPARTMENT OF LABOR AND INDUSTRY
Notice of Periodic Review
Pursuant to Executive Order 14 (2010) and §§ 2.2-4007.1
and 2.2-4017 of the Code of Virginia, the Department of Labor and Industry is
conducting a periodic review of 16VAC15-11, Public Participation Guidelines.
The review of this regulation will be guided by the principles in Executive
Order 14 (2010) and § 2.2-4007.1 of the Code of Virginia.
The purpose of this review is to determine whether this
regulation should be terminated, amended, or retained in its current form.
Public comment is sought on the review of any issue relating to this
regulation, including whether the regulation (i) is necessary for the
protection of public health, safety, and welfare or for the economical
performance of important governmental functions; (ii) minimizes the economic
impact on small businesses in a manner consistent with the stated objectives of
applicable law; and (iii) is clearly written and easily understandable.
The comment period begins October 22, 2012, and ends on
November 13, 2012.
Comments may be submitted online to the Virginia Regulatory
Town Hall at http://www.townhall.virginia.gov/L/Forums.cfm.
Comments may also be sent to Reba O'Connor, Regulatory Coordinator, Department
of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, VA
23219, telephone (804) 371-2631, FAX (804) 786-8418, or email reba.oconnor@doli.virginia.gov.
Comments must include the commenter's name and address
(physical or email) information in order to receive a response to the comment
from the agency. Following the close of the public comment period, a report of
the periodic review will be posted on the Town Hall and published in the Virginia
Register of Regulations.
STATE LOTTERY DEPARTMENT
Director's Orders
The following Director's Orders of the State Lottery Department
were filed with the Virginia Registrar of Regulations on September 24, 2012.
The orders may be viewed at the State Lottery Department, 900 East Main Street,
Richmond, VA, or at the office of the Registrar of Regulations, 910 Capitol
Street, 2nd Floor, Richmond, VA.
Director's Order Number
Ninety-Seven (12)
"You Activate/We Pay" Virginia Lottery Retailer
Incentive Program Requirements (effective September 20, 2012)
Director's Order Number One Hundred (12)
"Fas Mart/Shore Stop Sip, Scratch & Win 2"
Virginia Lottery Retailer Incentive Program Requirements (effective September
24, 2012)
Director's Order Number One Hundred Six (12)
Virginia's Instant Game Lottery 1385 "Black Cherry
Doubler" Final Rules for Game Operation (effective September 24, 2012)
Director's Order Number One
Hundred Seven (12)
Virginia's Instant Game Lottery 1391 "Money In The
Bank" Final Rules for Game Operation (effective September 24, 2012)
STATE WATER CONTROL BOARD
Proposed Consent Order for Fork Union
Sanitary District
An enforcement action has been proposed for the Fork Union
Sanitary District for violations in Fluvanna County. A proposed consent order
describes a settlement to resolve unauthorized discharge violations from the
Omohundro Well and Morris Well water treatment plants. A description of the
proposed action is available at the Department of Environmental Quality office
named below or online at www.deq.virginia.gov.
Steven W. Hetrick will accept comments by email at
steven.hetrick@deq.virginia.gov, FAX (540) 574-7878, or postal mail at
Department of Environmental Quality, Valley Regional Office, P.O. Box 3000,
4411 Early Road, Harrisonburg, VA 22801, from October 22, 2012, to November 21,
2012.
Proposed Consent Special Order for
Harvest Garden Pro, LLC
An enforcement action has been proposed for Harvest Garden Pro,
LLC, for alleged violations at Harvest Garden Pro, LLC, Doswell Site, 17554 and
17560 Washington Highway, Hanover County, VA. The State Water Control Board
proposes to issue a consent special order to Harvest Garden Pro, LLC to address
noncompliance with State Water Control Board law. A description of the proposed
action is available at the Department of Environmental Quality office named
below or online at www.deq.virginia.gov. Gina Pisoni will accept comments by
email at gina.pisoni@deq.virginia.gov, FAX (804) 527-5106, or postal mail at Department
of Environmental Quality, Piedmont Regional Office, 4949-A Cox Road, Glen
Allen, VA 23060, from October 22, 2012, to November 24, 2012.
Proposed Consent Special Order for The
McGurn Company, Inc.
An enforcement action has been proposed for The McGurn Company,
Inc., for alleged violations at Green Top Center Drive Development, Hanover
County, Virginia. The State Water Control Board proposes to issue a consent
special order to The McGurn Company, Inc., to address noncompliance with State
Water Control Board law. A description of the proposed action is available at
the Department of Environmental Quality office named below or online at
www.deq.virginia.gov. Gina Pisoni will accept comments by email at
gina.pisoni@deq.virginia.gov, FAX (804) 527-5106, or postal mail at Department
of Environmental Quality, Piedmont Regional Office, 4949-A Cox Road, Glen
Allen, VA 23060, from October 22, 2012, to November 24, 2012.
Proposed Consent Special Order for
Vane Line Bunkering
An enforcement action has been proposed for Vane Line
Bunkering, Inc., for an alleged discharge of petroleum products at the mouth of
the York River at New Point Comfort, Mathews County, Virginia. The State Water
Control Board proposes to issue a consent special order to Vane Line Bunkering
to address noncompliance with State Water Control Board law. A description of
the proposed action is available at the Department of Environmental Quality
office named below or online at www.deq.virginia.gov. Frank Lupini will accept
comments by email at frank.lupini@deq.virginia.gov, FAX (804) 527-5106, or
postal mail at Department of Environmental Quality, Piedmont Regional Office,
4949-A Cox Road, Glen Allen, VA 23060, from October 22, 2012, to November 22,
2012.
Proposed Consent Order for Watts
Petroleum Corporation
An enforcement action has been proposed for Watts Petroleum
Corporation for violations of the State Water Control Law and Regulation in
Bedford County. The State Water Control Board proposes to issue a Consent Order
to Watts Petroleum Corporation to resolve violations regarding a petroleum
spill which occurred on US 460 East in the vicinity of Montvale on May 28,
2012. A description of the proposed action is available at the Department of
Environmental Quality office named below or online at www.deq.virginia.gov. G. Marvin Booth,
III will accept comments by email at marvin.booth@deq.virginia.gov, FAX (434)
582-5125 or postal mail at Department of Environmental Quality, 7705 Timberlake
Road, Lynchburg, VA 24502, from October 23, 2012, to November 21, 2012.
Amendment of Water Quality Management
Planning Regulation
Notice of action: The State Water Control Board (board) is
considering the amendment of the regulation on water quality management
planning in accordance with the Public Participation Procedures for Water
Quality Management Planning. A regulation is a general rule governing people's
rights or conduct that is upheld by a state agency.
Purpose of notice: The board is seeking comments through the Department
of Environmental Quality (DEQ) on the proposed amendment. The purpose of the
amendment to the state's Water Quality Management Planning Regulation
(9VAC25-720) is to adopt nine total maximum daily load (TMDL) waste load
allocations.
Public comment period: October 22, 2012, to November 26, 2012.
Description of proposed action: DEQ staff will propose
amendments of the state's Water Quality Management Planning regulation for the
New River Basin (9VAC25-720-130 A). Statutory authority for promulgating these
amendments can be found in § 62.1-44.15 (10) of the Code of Virginia.
Staff intends to recommend (i) that the board approve the TMDL
report as the plan for the pollutant reductions necessary for attainment of
water quality goals in the impaired segments and (ii) that the board adopt nine
TMDL waste load allocations as part of the state's Water Quality Management
Planning Regulation in accordance with §§ 2.2-4006 A 4 c and 2.2-4006 B of
the Code of Virginia.
The TMDL report was developed in accordance with federal
regulations (40 CFR § 130.7) and is exempt from the provisions of Article
2 of the Virginia Administrative Process Act. The report was subject to the
TMDL public participation process contained in DEQ's Public Participation
Procedures for Water Quality Management Planning. The public comment process
provides the affected stakeholders an opportunity for public appeal of the
TMDL. EPA approved the TMDL presented under this public notice. The approved
report can be found at http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/TMDL/TMDLDevelopment/ApprovedTMDLReports.aspx
Affected Waterbodies and Localities:
In the New River Basin (9VAC25-720-130 A):
Total Maximum Daily Load
(TMDL) Development Little River Watershed, Virginia.
• The Little River Watershed
TMDL, located in Floyd, Franklin, Montgomery, Patrick and Pulaski counties,
provides temperature and sediment reductions for the watershed. It provides one
wasteload allocation for sediment in the entire watershed and the wasteload
allocation is 116.49 tons/year of sediment.
It provides eight wasteload allocations for temperature in the
watershed's streams and the wasteload allocations with their respective streams
are: Little River (VAW-N19_LRV01A00), 1.66 Joules/m2/second; Little
River (VAW-N19R_LRV02A00), 1.44 Joules/ m2/second; Little River
(VAW-N19R_LRV03A00), 1.03 Joules/ m2/second; Pine Creek, 1.35
Joules/ m2/second; West Fork Dodd Creek, 0.99 Joules/ m2/second;
Dodd Creek (VAW-N20R_DDD02A00), 1.3 Joules/ m2/second; Dodd Creek
(VAW-N20R_DDD01A00), 0.82 Joules/ m2/second; Big Indian Creek, 1.2
Joules/ m2/second.
How to comment: DEQ accepts written comments by email, fax, and
postal mail. All written comments must include the full name, address, and
telephone number of the person commenting and be received by DEQ by 5 p.m.
on the last day of the comment period.
How a decision is made: After comments have been considered,
the board will make the final decision. Citizens that submit statements during
the comment period may address the board members during the board meeting at
which a final decision is made on the proposal.
To review documents: The
TMDL report is available on the DEQ website at http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/TMDL/TMDLDevelopment/ApprovedTMDLReports.aspx
and by contacting the DEQ representative named below. The electronic copies are
in PDF format and may be read online or downloaded.
Contact for public comments, document requests, and additional
information: Liz McKercher; Department of Environmental Quality, P.O. Box 1105,
Richmond, VA 23218, telephone (804) 698-4291, FAX: (804) 698-4116, or email
elizabeth.mckercher@deq.virginia.gov.
Approval of Water Quality Management
Planning Actions
Notice of action: The State Water Control Board (board) is
considering the approval of one total maximum daily load (TMDL) modification
and granting authorization to include the modification in the appropriate Water
Quality Management Plans (WQMPs).
Purpose of notice: The board is seeking comment on the proposed
approvals and authorizations. The purpose of these actions is to approve one TMDL
modification as Virginia's plan for the pollutant reductions necessary for
attainment of water quality goals an impaired waterbody. These actions are
taken in accordance with the Public Participation Procedures for Water Quality
Management Planning.
Public comment period begins October 22, 2012, and ends on
November 26, 2012.
Description of proposed action: Department of Environmental
Quality (DEQ) staff intends to recommend that the DEQ Director approve the TMDL
modification listed below as Virginia's plans for the pollutant reductions
necessary for attainment of water quality goals in the impaired segments. No
regulatory amendments are required for these TMDLs and their associated waste
load allocations.
At previous meetings, the board voted unanimously to delegate
to the DEQ Director the authority to approve TMDLs that do not include waste
load allocations requiring regulatory adoption by the board, provided that a
summary report of the action the Director plans to take is presented to the
board prior to the Director approving the TMDL reports. The TMDLs included in
this public notice will be approved using this delegation of authority.
The TMDLs listed below were developed in accordance with
federal regulations (40 CFR § 130.7) and are exempt from the provisions of
Article 2 of the Virginia Administrative Process Act. The TMDLs have been
through the TMDL public participation process contained in DEQ's Public
Participation Procedures for Water Quality Management Planning. The public
comment process provides the affected stakeholders an opportunity for public
appeal of the TMDLs. EPA approved all TMDL reports presented under this public
notice. The approved reports can be found at https://www.deq.virginia.gov/TMDLDataSearch/ReportSearch.jspx.
Affected Waterbodies and Localities:
In the James River Basin:
Modification to "Total Maximum Daily Load Development for
the James River and Tributaries – Lower Piedmont Region"
• The modification includes the addition of four Domestic
Dischargers to the TMDL.
How to comment: DEQ accepts written comments by email, fax, and
postal mail. All written comments must include the full name, address, and
telephone number of the person commenting and be received by DEQ by 5 p.m. on the last day of the comment
period.
How a decision is made: After comments have been considered,
the board will make the final decision.
To review documents: The TMDL reports and TMDL implementation
plans are available on the DEQ website at http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/TMDL/TMDLDevelopment/ApprovedTMDLReports.aspx
and by contacting the DEQ representative named below. The electronic copies are
in PDF format and may be read online or downloaded.
Contact for public comments, document requests and additional
information: Liz McKercher, Department of Environmental Quality, P.O. Box 1105,
Richmond, VA 23218, telephone (804) 698-4291, FAX (804) 698-4116, or email elizabeth.mckercher@deq.virginia.gov.
Approval of Water Quality Management
Planning Actions
Notice of action: The State Water Control Board (board) is
considering the approval of seven total maximum daily load implementation plans
(TMDL IPs) and granting authorization to include the TMDL implementation plans
in the appropriate Water Quality Management Plans (WQMPs).
Purpose of notice: The board is seeking comment on the proposed
approvals and authorizations. The purpose of these actions is to approve seven
TMDL IPs as Virginia's plans for the management actions necessary for
attainment of water quality goals in several impaired waterbodies. These
actions are taken in accordance with the Public Participation Procedures for
Water Quality Management Planning.
Public comment period begins October 22, 2012, and ends on
November 26, 2012.
Description of proposed action: Department of Environmental
Quality (DEQ) staff intends to recommend that the DEQ Director approve the TMDL
IPs listed below as Virginia's plans for the management actions necessary for
attainment of water quality goals in the impaired segments. No regulatory
amendments are required for these TMDL IPs.
At previous meetings, the board voted unanimously to delegate
to the DEQ Director the authority to approve TMDL implementation plans,
provided that a summary report of the action the Director plans to take is
presented to the board prior to the Director’s approval. The TMDL
Implementation Plans included in this public notice will be approved using this
delegation of authority.
The TMDLs listed below were developed in accordance with 1997 Water
Quality Monitoring, Information and Restoration Act (WQMIRA,
§§ 62.1-44.19:4 through 62.1-44.19:8 of the Code of Virginia) and federal
recommendations. The TMDL IPs were developed in accordance with DEQ's Public
Participation Procedures for Water Quality Management Planning. Extensive
public participation was solicited during the development of the plans, and the
public comment process provided the affected stakeholders with opportunities
for comment on the proposed plans. The final TMDL IPs can be found at http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/TMDL/TMDLImplementation/TMDLImplementationPlans.aspx.
Affected Waterbodies and
Localities:
In the Tennessee/Big Sandy River
Basin:
1. "A Plan to Reduce Fecal Bacteria, Sediment and Total
Dissolved Solids in the Upper Clinch River Watershed"
• The IP proposes management actions needed to reduce bacteria
and sediment and restore the recreation and aquatic life uses in the Upper
Clinch River watershed, located in Tazewell County.
In the New River Basin:
2. "Little River Total Maximum Daily Load Implementation
Plan"
• The IP proposes management actions needed to restore the
natural trout and stockable trout temperature water quality standards, and
reduce bacteria and sediment to restore the primary contact (swimming) and
aquatic life designated uses in the Little River watershed located in Floyd and
Montgomery counties.
In the James River Basin:
3. "TMDL Implementation Plan for Hoffler Creek"
• The IP proposes management actions needed to reduce bacteria
and restore the primary contact (swimming) use in Hoffler Creek located in
Suffolk and Portsmouth.
4. "Implementation Plan for the Fecal Coliform TMDL for
the Upper Nansemond River"
• The IP proposes management actions to reduce bacteria and
restore the primary contact (swimming) and shellfishing uses in the Upper
Nansemond River and Shingle Creek located in Suffolk and Isle of Wight
counties.
In the Roanoke River Basin:
5. "A Plan to Reduce Bacteria Sources in the Upper
Banister River and Tributary Watersheds"
• The IP proposes management actions to reduce bacteria and
restore the primary contact (swimming) use in Upper Banister River, Bearskin
Creek, Cherrystone Creek, Stinking River, and Whitehorn Creek located in
Pittsylvania County.
In the Rappahannock River Basin:
6. "Upper Hazel River Bacteria Total Maximum Daily Load
Implementation Plan"
• The IP proposes management actions to reduce bacteria and
restore the primary contact (swimming) use in Upper Hazel River, Rush River,
and Hughes River located in Rappahannock County.
In the Chesapeake Bay - Small Coastal - Eastern Shore Basin:
7. "TMDL Implementation Plan for Mill Creek"
• The IP proposes management actions to improve dissolved oxygen
and pH levels to restore the aquatic life use in Mill Creek located in
Northampton County.
How to comment: DEQ accepts written comments by email, fax, and
postal mail. All written comments must include the full name, address, and
telephone number of the person commenting and be received by DEQ by 5 p.m. on
the last day of the comment period.
How a decision is made: After comments have been considered, the
board will make the final decision.
To review documents: The TMDL implementation plans are
available on the DEQ website at http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/TMDL/TMDLImplementation/TMDLImplementationPlans.aspx
and by contacting the DEQ representative named below. The electronic copies are
in PDF format and may be read online or downloaded.
Contact for public comments, document requests and additional
information: Liz McKercher, Department of Environmental Quality, P.O. Box 1105,
Richmond, VA 23218, telephone (804) 698-4291, FAX (804) 698-4116, or email elizabeth.mckercher@deq.virginia.gov.
Proposed FY2013 Revolving Load Fund
List
The Board is presenting its draft list of targeted FY 2013 loan
recipients for public review and comment. A public meeting will be held at 2 p.m.
on Wednesday, November 7, 2012, in the Department of Environmental Quality's
(DEQs) 11th Floor Conference Room, 629 East Main Street, Richmond, VA
23219. The public review and comment period will end immediately following the
public meeting.
On May 31, 2012, DEQ solicited applications from the
Commonwealth's localities and wastewater authorities as well as potential land
conservation applicants and Brownfield remediation clientele. July 13,
2012, was established as the deadline for receiving applications. Based on this
solicitation, DEQ received thirteen (13) wastewater improvement applications
requesting $53,083,546 and one (1) stormwater management application for an
additional $1,060,650.
All 13 wastewater applications were evaluated in accordance with
the program's "Funding Distribution Criteria" and the Board's
"Bypass Procedures." In keeping with the program objectives and
funding prioritization criteria, the staff reviewed project type and impact on
state waters, the locality's compliance history and fiscal stress, and the
project's readiness-to-proceed. The one stormwater application was reviewed in
accordance with the Board's Priority Ranking Criteria for Stormwater projects,
in consultation with the Department of Conservation and Recreation. All
applications are considered to be of good quality and should provide
significant water quality and environmental improvement.
Based on these considerations, the Board approved the staff
recommendation to authorize funding for $54,144,196 for all 14 projects (City
of Lynchburg, Town of Rural Retreat, City of Salem, Scott Co. Public Service
Authority, Town of Grottoes, Augusta Co. Service Authority, Town of Clifton
Forge, King George Co. Service Authority, City of Norfolk, Tazewell Co. Public
Service Authority, Town of Coeburn, C-N-W Waste Water Treatment Authority,
Loudoun Water, and City of Richmond - stormwater).
Contact Information: Walter Gills, Department of Environmental
Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804)
698-4133, or email walter.gills@deq.virginia.gov.
VIRGINIA CODE COMMISSION
Notice to State Agencies
Contact Information: Mailing Address: Virginia
Code Commission, 910 Capitol Street, General Assembly Building, 2nd Floor,
Richmond, VA 23219; Telephone: Voice (804) 786-3591; FAX (804) 692-0625;
Email: varegs@dls.virginia.gov.
Meeting Notices: Section 2.2-3707 C of the Code of
Virginia requires state agencies to post meeting notices on their websites and
on the Commonwealth Calendar at http://www.virginia.gov/cmsportal3/cgi-bin/calendar.cgi.
Cumulative Table of Virginia Administrative Code Sections
Adopted, Amended, or Repealed: A table listing regulation sections that
have been amended, added, or repealed in the Virginia Register of
Regulations since the regulations were originally published or last
supplemented in the print version of the Virginia Administrative Code is
available at http://register.dls.virginia.gov/cumultab.htm.
Filing Material for Publication in the Virginia Register of
Regulations: Agencies use the Regulation Information System (RIS) to file
regulations and related items for publication in the Virginia Register of
Regulations. The Registrar's office works closely with the Department of
Planning and Budget (DPB) to coordinate the system with the Virginia Regulatory
Town Hall. RIS and Town Hall complement and enhance one another by sharing
pertinent regulatory information.