Title of Regulation: 12VAC5-650. State Board of Health Schedule of Civil Penalties (adding 12VAC5-650-10 through 12VAC5-650-100).

Statutory Authority: § 32.1-164 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until 5 p.m. on August 21, 2009.

Agency Contact: Allen Knapp, Environmental Health Coordinator, Department of Health, 109 Governor St., Richmond, VA 23219, telephone (804) 864-7458, FAX (804) 864-7475, or email allen.knapp@vdh.virginia.gov.

Basis: Section 32.1-164 J (effective July 1, 2009) of the Code of Virginia requires the State Board of Health to establish a uniform schedule of civil penalties for violations of regulations promulgated pursuant to § 32.1-164 B (collection, conveyance, transportation, treatment, and disposal of sewage by onsite sewage systems and alternative discharging sewage systems and the maintenance, inspection, and reuse of alternative onsite sewage systems) that are not remedied within 30 days after service of notice from the Department of Health.

Purpose: The proposed regulation, while fulfilling specific statutory requirements, allows the Department of Health to employ civil penalties to enhance existing regulatory programs for supervising and controlling the safe and sanitary treatment and disposal of sewage. Currently, the department may ask for criminal penalties (Class I misdemeanor), may initiate civil proceedings, and may collect civil charges only with the consent of the affected party. Under the proposed regulation, the department may charge civil penalties in amounts that are relatively small in comparison to existing penalties. The goal of the regulation is to enhance the department's ability to protect public health and the environment by providing an enforcement tool that may be scaled to match the seriousness of a violation.

Substance: The proposed regulation specifies uniform penalties for violations of the board's regulations. The penalty for any one violation may not exceed $100 for the initial violation and $150 for each additional violation. Each day during which a violation is found to exist will constitute a separate offense; however, violations arising from the same set of operative facts may not be charged more than once in any 10-day period. A series of violations arising from the same set of operative facts may not result in civil penalties exceeding a total of $3,000. The department may not charge civil penalties in cases where an unoccupied structure does not contribute to pollution of public or private water supplies or to the contraction or spread of disease. The department may pursue other remedies as provided by law; however, civil penalties must be in lieu of criminal penalties, except where a violation contributes to or is likely to contribute to the pollution of public or private water supplies or the contraction or spread of disease. The department may issue a civil summons ticket as provided by law for a scheduled violation.

Issues: The primary advantage to the public comes from improving the department's ability to protect citizens and the environment from the harmful effects of sewage. As the number of alternative onsite sewage systems in the Commonwealth continues to increase, citizens, local governments, regulators, and onsite sewage professionals agree that ongoing operation, maintenance, and monitoring of these systems is essential to ensure that they function properly. When these systems are not properly maintained and operated, they may discharge untreated or partially treated sewage directly into the Commonwealth's ground and surface waters. The board's regulations and policies increasingly require owners of alternative onsite sewage systems to perform certain activities, such as monitoring inspections and maintenance, to ensure that systems are operating properly. The ability to assess civil penalties, as an alternative to criminal enforcement, is a more effective enforcement strategy to employ in such a "performance-based" regulatory program. A disadvantage, expressed by some in the regulated communities, is that department staff may misuse or abuse the new penalties.

Civil penalties will improve the department's ability to enforce the board's regulations by providing another enforcement tool. Existing statutes provide for enforcement actions via the Administrative Process Act (APA) such as informal fact-finding conferences to make case decisions, e.g., permit suspension, revocation, the issuance of orders by the board, civil actions in circuit courts, and criminal actions. These are relatively "heavy" actions that are appropriate in some cases. Currently, civil charges can only be collected with the consent of the affected party and are employed in conjunction with a consent order. Properly used, civil penalties can be viable alternatives when existing enforcement tools are too heavy-handed for many routine enforcement actions. Civil penalties are not intended to be punitive, but are intended to encourage compliance with environmental health regulations before a situation deteriorates to the point that heavier enforcement is warranted. A disadvantage to the agency will be the perceived drains on agency staff and resources required to implement the new civil penalties.

Civil penalties are particularly critical for managing the onsite sewage and alternative discharging sewage system programs. Several local governments have enacted ordinances requiring operation and maintenance of alternative onsite sewage systems. The department is currently developing new regulations for the board that will require routine monitoring, maintenance, and reporting for alternative onsite systems. These are already required in the alternative discharging system program. Typically, an owner is responsible for maintaining a contract with a private-sector provider to perform routine inspections, tests, and maintenance. The owner (or the provider) must forward inspection reports and test results to the department. Criminal or other "heavy" enforcement actions are not appropriate for situations, such as the failure to submit a report or keep a maintenance contract in effect. Civil penalties will provide options for the department to scale its enforcement actions to the seriousness of a particular situation. The department will develop administrative guidelines for implementing the civil penalties. These guidelines will seek to ensure that the penalties are not abused or misused by staff.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 514 of the 2007 Virginia Acts of Assembly the State Board of Health (Board) is proposing to establish a uniform schedule of civil penalties for violations of regulations pertaining to onsite sewage and alternative discharge sewage treatment systems.

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

Estimated Economic Impact. Chapter 514 of the 2007 Virginia Acts of Assembly amended Virginia Code § 32.1-164 to state that:

The Board shall establish a uniform schedule of civil penalties for violations of regulations (concerning the collection, conveyance, transportation, treatment and disposal of sewage by onsite sewage systems and alternative discharging sewage systems)… that are not remedied within 30 days after service of notice from the Department (of Health). Civil penalties collected pursuant to this chapter shall be credited to the Environmental Health Education and Training Fund ….

Further,

This schedule of civil penalties shall be uniform for each type of specified violation, and the penalty for any one violation shall be not more than $100 for the initial violation and not more than $150 for each additional violation. Each day during which the violation is found to have existed shall constitute a separate offense. However, specified violations arising from the same operative set of facts shall not be charged more than once in any 10-day period, and a series of specified violations arising from the same operative set of facts shall not result in civil penalties exceeding a total of $3,000.

The Board proposes the following civil penalties, which are consistent with the statute:

• For installation, modification, use, or operation without a permit, $100 for the first violation, $150 for each additional violation.

• For the discharge of sewage onto the ground or into water without a permit, $100 for the first violation, $150 for each additional violation.

• For failure to obtain or maintain a contract in accordance with board regulations, $50 for the first violation, $100 for each additional violation.

• For failure to submit a test result or report in accordance with board regulations, $50 for the first violation, $100 for each additional violation.

• For engaging in unlawful transportation or handling of sewage or septage, $100 for the first violation, $150 for each additional violation.

• For other unlawful acts described in the regulations, $25 for the first violation, $50 for each additional violation.

Prior to the establishment of civil penalties, the Virginia Department of Health may only enforce the Board's regulations via permit suspension or revocation, the issuance of orders by the Board, civil actions in circuit courts, or by criminal actions, which are all relatively heavy-handed punishments. The Department and Board have at times been reluctant to issue these heavy-handed punishments for routine enforcement actions. Additionally, civil charges can only be collected with the consent of the affected party and are employed in conjunction with a consent order. The proposed civil penalties, which do not require a consent order, may be enough to discourage violations that put public health at risk and cause less harm to recipients (of the penalties) than the more heavy-handed options. Thus, providing this tool to the Board and Department will likely provide a net benefit.

Businesses and Entities Affected. The proposed amendments potentially affect homeowners and businesses who own onsite and alternative discharging sewage systems, onsite sewage system installers, and individuals and businesses that provide maintenance services such as pumpouts, and repair or replacement of systems or system components. The Virginia Department of Health estimates that between 175 and 350 entities may be affected each year because of a sewage system malfunction that is not remedied within 30 days, and approximately 66 entities may incur a civil penalty.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposal to establish a uniform schedule of civil penalties for violations of regulations pertaining to onsite sewage and alternative discharge sewage treatment systems will not likely significantly affect employment.

Effects on the Use and Value of Private Property. The proposal to establish a uniform schedule of civil penalties for violations of regulations pertaining to onsite sewage and alternative discharge sewage treatment systems may result in some homeowners and businesses receiving civil penalties who may not have otherwise been so fined. Thus, they may have a moderate reduction in property value. On the other hand, the threat of civil penalties may encourage homeowners and businesses to not violate the Board's regulations which could result in higher property values for neighboring properties.

Small Businesses: Costs and Other Effects. The proposal to establish a uniform schedule of civil penalties for violations of regulations pertaining to onsite sewage and alternative discharge sewage treatment systems may result in some small businesses receiving civil penalties who may not have otherwise been so fined. On the other hand, the threat of civil penalties may encourage homeowners and businesses to not violate the Board regulations which could result in higher property values for neighboring small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There is no clear alternative that would produce less cost while still reaping the same benefits.

Real Estate Development Costs. For firms and other entities that abide by the Board's regulations pertaining to onsite sewage and alternative discharge sewage treatment systems, the proposal to establish a uniform schedule of civil penalties for violations produces no cost. To the extent that the civil penalties discourage sewage violations from neighbors and previous property owners, the proposal to establish a uniform schedule of civil penalties for violations of regulations pertaining to onsite sewage and alternative discharge sewage treatment systems may reduce 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 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 the Department of Planning and Budget's Economic Impact Analysis: The agency concurs with the economic impact analysis submitted by the Department of Planning and Budget.

Summary:

This proposed regulation establishes a uniform schedule of civil penalties for violations of the Board of Health's regulations pertaining to conventional and alternative onsite sewage systems, and for violations of the Board of Health's regulations pertaining to alternative discharging sewage treatment systems for individual single family homes.

CHAPTER 650
STATE BOARD OF HEALTH SCHEDULE OF CIVIL PENALTIES

12VAC5-650-10. Definitions.

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

"Board" means the State Board of Health.

"Department" means the Virginia Department of Health.

"Transportation of sewage or septage" means actions associated with removing septage, sludge, or sewage from an onsite sewage system, a sewerage system, or other treatment works, including, but not limited to, using a pump or other device or gravity flow to collect septage, sludge, or sewage in a tank or other vessel intended to contain the septage, sludge, or sewage during transport to another location.

12VAC5-650-20. Purpose and authority.

The board has promulgated this chapter to:

1. Establish a uniform schedule of civil penalties for violations of 12VAC5-610, the Sewage Handling and Disposal Regulations (or successor), and 12VAC5-640, the Alternative Discharging Sewage Treatment Regulations for Individual Single Family Dwellings (or successor);

2. Support enforcement activities necessary to discharge the board's responsibility to supervise and control the safe and sanitary collection, conveyance, transportation, treatment, and disposal of sewage as they affect the public health and welfare;

3. Support enforcement activities necessary to discharge the board's responsibility to exercise due diligence to protect the quality of ground and surface waters; and

4. Guide the State Health Commissioner in charging civil penalties.

12VAC5-650-30. Applicability.

A. This chapter applies only in those localities where the local government has entered into a contract with the department for the operation of local and district health departments. It does not apply in any locality that has not entered into such a contract.

B. This chapter applies to those activities conducted pursuant to 12VAC5-610 and 12VAC5-640 or successor regulations promulgated by the board as described herein. Except as provided in § 32.1-164 J of the Code of Virginia, this chapter may not be construed to limit the board's or the commissioner's authority to enforce any law or regulation administered by the board or to enforce any order of the board.

12VAC5-650-40. Administration.

A. The board has the responsibility to promulgate, amend, and repeal regulations necessary to ensure the safe and sanitary handling and disposal of sewage via onsite sewage systems and alternative discharging sewage systems as these affect public health. Nothing in this chapter may be construed to limit the board's authority to enforce any law administered by it, any regulation promulgated by it, or any case decision rendered by it or by the commissioner.

B. The State Health Commissioner is the chief executive officer of the department. The commissioner has the authority to act, within the scope of regulations promulgated by the board, for the board when it is not in session. The department is designated as the primary agent of the commissioner for the purpose of administering this chapter. The commissioner may delegate his powers under this chapter.

C. Section 32.1-30 of the Code of Virginia requires each county and city to establish and maintain a local department of health that is responsible for enforcing all health laws of the Commonwealth and regulations of the board. With the concurrence of each county and city government affected, the commissioner may create a district health department composed of such local health departments. The commissioner appoints the local or district health director in those localities that enter into a contract with the department for the operation of the local or district health department. In such localities the local or district health director is responsible for implementing this chapter. The authority to implement this chapter is hereby delegated to local and district health directors who are employees of the department; such local and district health directors may delegate to subordinates as they deem necessary. Nothing in this section may be construed as limiting the commissioner's authority to delegate his powers as provided in law.

12VAC5-650-50. Conduct declared unlawful.

The following conduct is hereby declared unlawful and subject to civil penalties in accordance with this chapter:

1. Violation of any provision of 12VAC5-610, the Sewage Handling and Disposal Regulations or successor regulation promulgated by the board, including failure to comply with the provisions, requirements, conditions, or standards contained in a construction permit or in an operating permit.

2. Violation of any provision of 12VAC5-640, the Alternative Discharging Sewage Treatment Regulations for Individual Single Family Dwellings or successor regulation promulgated by the board, including failure to comply with the provisions, requirements, conditions, or standards contained in a construction permit or in an operating permit.

3. Failure to comply with any order issued by the board or commissioner.

12VAC5-650-60. Uniform schedule of civil penalties.

A. There is hereby established a uniform schedule of civil penalties for the following violations of the board's regulations:

1. Install or cause to install, modify or cause to modify, use or operate an onsite or alternative discharging sewage system without a permit issued by the commissioner: $100 for the first violation, $150 for each additional violation.

2. Discharge treated or untreated sewage on the surface of the ground or into the waters of the Commonwealth without a permit: $100 for the initial violation, $150 for each additional violation.

3. Fail to obtain or keep a contract for operation, maintenance, or monitoring of an onsite or alternative discharging system to the extent that such contract is a requirement of the board's regulations: $50 for the initial violation, $100 for each additional violation.

4. Fail to submit to the department a laboratory test result, or an inspection or other report to the extent that such report is a requirement of the board's regulations: $50 for the initial violation, $100 for each additional violation.

5. To the extent such activities are not regulated by another agency of the Commonwealth, engage in unlawful transportation or handling of sewage or septage: $100 for the initial violation, $150 for each additional violation.

6. Any unlawful act described in 12VAC5-650-60 not specifically described in this subsection: $25 for the initial violation, $50 for each additional violation.

B. The department may not charge civil penalties pursuant to this chapter for activities related to land development.

C. The department may not charge civil penalties pursuant to this chapter for an unoccupied structure unless such structure contributes to the pollution of public or private water supplies or the contraction or spread of infectious, contagious, or dangerous diseases.

12VAC5-650-70. Criminal prosecution precluded.

In accordance with § 32.1-164 J of the Code of Virginia, designation of a particular violation for a civil penalty pursuant to this chapter must be in lieu of criminal penalties, except for any violation that contributes to or is likely to contribute to the pollution of public or private water supplies or the contraction or spread of infectious, contagious, or dangerous diseases.

12VAC5-650-80. Civil summons ticket.

A. The department must prepare a civil summons ticket for use in implementing this chapter.

B. In addition to any information the department deems necessary, the ticket must contain the following information:

1. A statement notifying the recipient that he may make an appearance in person or in writing by mail to the department prior to the date fixed for trial in court;

2. A statement that any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged;

3. The physical address, hours of operation, and mailing address for the local or district health department responsible for issuing the civil summons;

4. A statement that civil penalties may be paid only by cashier's check or certified check made payable to the Treasurer of Virginia; and

5. The date fixed for trial in general district court.

12VAC5-650-90. Authority to issue civil summons ticket; penalties collected.

A. Any employee of the department who has been delegated authority pursuant to this chapter may issue a civil summons ticket in accordance with this chapter.

1. The civil summons ticket may be delivered in person after presentation of proper credentials.

2. The department may deliver a civil summons ticket in any other manner provided by law.

B. All civil penalties collected pursuant to this chapter shall be credited to the Environmental Health Education and Training Fund established pursuant to § 32.1-248.3 of the Code of Virginia.

12VAC5-650-100. Requirements for civil summons ticket.

A. Before the department may issue any civil summons ticket pursuant to this chapter, the following must occur:

1. The department shall notify the alleged violator as required in the board's regulations;

2. At least 30 days shall have passed from the date the alleged violator received notice of the violation; and

3. The violation must remain uncorrected.

B. Violations arising from the same operative set of facts shall not be charged more than once in any 10-day period nor shall the department charge more than one civil penalty from the same set of operative facts.