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

Statutory Authority: §§ 32.1-12 and 32.1-164 of the Code of Virginia.

Effective Date: September 13, 2013.

Agency Contact: Allen Knapp, Environmental Health Coordinator, 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:

This regulation establishes a uniform schedule of civil penalties for violations of the Board of Health's regulations pertaining to (i) conventional and alternative onsite sewage systems and (ii) alternative discharging sewage treatment systems for individual single-family homes. Since the proposed stage of the regulations, the agency added a definition of the term "modify" to address a public comment and corrected a citation.

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 650
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.

[ "Modify" means to alter a treatment works, excluding actions taken to "operate" the treatment works and "maintenance" activities as those terms are defined in § 32.1-163 of the Code of Virginia. ]

"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 12VAC5-650-50 ] 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.